United States v. Kaliph Whitlow , 740 F.3d 433 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1347
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KALIPH P. WHITLOW,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:10-CR-20050-MPM-DGB-1 — Michael P. McCuskey, Judge.
ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 21, 2014
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In 2011, Kaliph Whitlow pled guilty
to two counts of distribution of five or more grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1), crimes he committed
before the August 3, 2010 effective date of the Fair Sentencing
Act of 2010. See Pub. L. 111–220, 124 Stat. 2372 (2010) (hereafter
the “Fair Sentencing Act” or the “Act”). In October 2011, the
district court sentenced him to 262 months’ imprisonment,
2 No. 13-1347
rejecting his request that he be sentenced under the Act. After
the Supreme Court issued its opinion in Dorsey v. United States,
132 S. Ct. 2321 (2012), we vacated Whitlow’s sentence and
remanded the case for resentencing in accordance with Dorsey
and the Act. R. 16. The district court subsequently sentenced
Whitlow to a term of 170 months’ imprisonment, and Whitlow
now appeals his new sentence. The government concedes that
the district court may have misapprehended its sentencing
discretion in one respect. We vacate Whitlow’s sentence and
remand for the limited purpose of giving the district court an
opportunity to exercise its discretion on one final issue.
I.
On June 9, 2010, Whitlow was charged with two counts of
possession with intent to distribute five grams or more of crack
cocaine. The government subsequently filed a notice that it
intended to seek enhanced penalties based on a number of
prior felony convictions. See 21 U.S.C. § 851. Whitlow pled
guilty in April 2011, and the court conducted a sentencing
hearing in October of that year. Although Whitlow requested
that the court sentence him under the more lenient standards
set forth in the Fair Sentencing Act of 2010, the court followed
then-current circuit law and declined to apply the Act. Instead,
the court calculated the guidelines range for Whitlow as 262 to
327 months’ imprisonment. After considering the section
3553(a) factors and Whitlow’s arguments in mitigation, the
court sentenced Whitlow to 262 months in prison, to be
followed by an eight-year term of supervised release.
Whitlow filed a timely notice of appeal. Shortly thereafter,
the Supreme Court granted certiorari in Dorsey, a case that
No. 13-1347 3
would decide whether courts should apply the Act to cases like
Whitlow’s, where the crime was committed prior to the
effective date of the Act but the sentencing occurred after the
effective date. In light of this development, Whitlow moved in
this court for leave to file a statement of position in lieu of an
opening brief. R. 9. In that motion, Whitlow stated that he “will
raise only one issue on appeal: Whether the Fair Sentencing
Act applies to individuals who were sentenced after its
enactment?” R. 9, at 2. We granted leave for Whitlow to file his
“Statement of Position” (“Statement”) in lieu of an opening
brief and allowed the government to respond to the Statement.
R. 10. In the Statement, Whitlow reiterated that he “had only
one nonfrivolous issue to raise on appeal: Whether the Fair
Sentencing Act applies to individuals who were sentenced
after its enactment?” R. 11, at 3. Acknowledging that circuit
law was settled against this position, Whitlow nonetheless
sought to preserve the argument for review in the Supreme
Court in light of the grant of certiorari in Dorsey. Whitlow
raised no other objections to his conviction or sentence and
suggested that the court hold the appeal in abeyance pending
the outcome of Dorsey. The government agreed that then-
current circuit law foreclosed Whitlow’s sole issue on appeal
and asked this court to hold consideration of the appeal until
the Supreme Court ruled in Dorsey. R. 13. We then suspended
proceedings in the appeal pending the outcome of Dorsey and
a related case. R. 14.
After the Supreme Court ruled in Dorsey, Whitlow and the
government filed a “Joint Statement of Position in Light of the
Supreme Court’s Holding in Dorsey.” R. 15 (hereafter “Joint
Statement”). In the Joint Statement, the parties agreed that,
4 No. 13-1347
under Dorsey, the district court procedurally erred at Whit-
low’s sentencing by not applying the Act, and that the error
was not harmless. In particular, the parties asserted that the
sentence was above the low end of the correct guidelines range
and the court had not indicated that it would impose the same
sentence if the Act applied. The court had also commented
that, “It would deprecate the seriousness of your criminal
history to vary from the career offender advisory guidelines.”
Joint Statement, at 4 (quoting R. 38, Tr. at 33). The parties asked
that we “vacate the defendant’s sentence and remand this case
for resentencing.” Joint Statement, at 1. We then ordered that
Whitlow’s “sentence is vacated and the case is remanded for
resentencing in accordance with Dorsey and the Fair Sentencing
Act.” R. 16.
On remand, the probation office re-calculated Whitlow’s
sentencing guidelines range under the Act, and issued an
addendum to the Presentence Investigation Report (“PSR”).
The new advisory guidelines range was 188 to 235 months of
imprisonment, and the PSR continued to assert that Whitlow
qualified to be sentenced as a career offender. Neither party
objected to the new PSR, but Whitlow filed a Sentencing
Memorandum, seeking a sentence of 144 months’ imprison-
ment and raising four arguments in support of a below-
guidelines sentence. In particular, Whitlow argued that (1) a
twelve-year term would be twice as long as any prior sentence
Whitlow had received in state court, representing a more
appropriate incremental punishment than a guidelines-range
sentence; (2) the career offender guideline is defective because
it is not based on empirical studies, lacks a general deterrent
effect on street-level drug dealers such as Whitlow, and has a
No. 13-1347 5
disproportionate adverse effect on impoverished minorities; (3)
a twelve-year sentence would account for Whitlow’s post-
sentencing rehabilitation efforts, including obtaining a GED
certificate and working steadily in prison; and (4) some
discount to his sentence was necessary to correct a calculation
by the Bureau of Prisons (“BOP”) that resulted in a failure to
credit Whitlow for approximately eight months in federal
custody while he was serving time on a state sentence for a
crime that could be considered relevant conduct to the offense
of conviction here.
At the 2013 sentencing hearing, the government asked the
court to impose a sentence “that’s basically consistent with the
prior recommendation and the prior sentence.” R. 54, Tr. at 6.
The government asserted that Whitlow “should be sentenced
as a career offender as the Court did the first time around.” Id.The government noted that this was Whitlow’s eighth felony
drug conviction and that he also had a robbery conviction on
his record, justifying a career offender sentence. In response to
the court’s question regarding Whitlow’s argument that the
BOP failed to credit Whitlow with time served in pretrial
custody, the government contended that it was up to the BOP
to fix any error in connection with the pretrial custody period,
and that Whitlow could pursue administrative remedies to fix
any error. The government opposed any action by the district
court to credit Whitlow for that time. At no time did the
government alert the district court that Whitlow’s arguments
in mitigation were improper because he had not preserved
them in the 2011 sentencing or in the appeal of that sentencing
or that they were beyond the scope of our remand.
6 No. 13-1347
Whitlow’s counsel argued for adjustments based on the
factors raised in his Sentencing Memorandum, including the
BOP’s error, the need for incremental punishment, the inap-
propriateness of applying the career offender guideline to a
defendant like Whitlow, and Whitlow’s post-sentencing efforts
at rehabilitation. As we will discuss below, the court expressly
declined to address the BOP’s error, commented indirectly on
incremental sentencing and career offender status, and
expressly granted an eighteen month reduction from the
bottom of the guidelines range for exceptional efforts at
rehabilitation. The court sentenced Whitlow to 170 months’
imprisonment, to be followed by six years of supervised
release. Whitlow appeals.
II.
On appeal, Whitlow contends that the district court
committed procedural error when it failed to exercise its
discretion to adjust the sentence downward to account for the
time that Whitlow spent in pretrial custody after the BOP
declined to credit him for that time. Whitlow also maintains
that the court erred when it failed to consider his two principal
arguments in mitigation, namely, his attack on the career
offender guideline and his contention that an incremental
sentence was more appropriate than a full guidelines sentence.
The government counters that Whitlow’s mitigation arguments
were not properly before the district court because he failed to
present them at either his initial sentencing or during the first
appeal, and that they were beyond the scope of our remand.
The government also attacks Whitlow’s arguments in mitiga-
tion on the merits, except that the government concedes that
the court erred in failing to apprehend its discretion to fix the
No. 13-1347 7
error committed by the BOP. The government therefore
requests that, if we decide to reach the issue related to the
BOP’s calculation of credit for time served, we order a limited
remand for the district court to clarify whether it understood
its discretion to adjust for this error.
A.
Before the first sentencing hearing in 2011, Whitlow raised
no objections to the PSR and argued only that he should be
sentenced under the Fair Sentencing Act. At the 2011 sentenc-
ing hearing, the district court sua sponte noted its discretion
under United States v. Corner, 598 F.3d 411 (7th Cir. 2010), to
disagree with any guidelines provision on policy grounds,
including the career offender guideline. R. 38, Tr. at 12. At the
2011 sentencing, the government encouraged the court to
apply the career offender guideline based on Whitlow’s
extensive criminal history. Whitlow’s counsel countered that
Whitlow’s criminal history appeared more serious than it was
because Whitlow had only one crime of violence on his record,
a robbery. Whitlow’s counsel also maintained that the
crack/powder disparity affected the application of the career
offender guideline and that the court should consider adjusting
the sentence downward on that basis as well.
The district court then carefully considered its discretion
under Corner to vary from the career offender guideline. In its
comments, the court addressed the pattern in Kankakee
County where street-level dealers like Whitlow routinely
received short sentences in the state courts without any
warning that entry into the federal system came with substan-
tially increased penalties. Ultimately, the court decided that
8 No. 13-1347
Whitlow’s record was one that called for application of the
career offender guideline, and that Whitlow required a longer
sentence because shorter sentences had failed to affect his
criminal behavior. R. 38, Tr. at 24–33. The court expressly
rejected any argument that the career guideline was not
appropriate:
It would deprecate the seriousness of your criminal
history to vary from the career offender advisory guide-
lines. They’re advice; they’re guidance, but they’re good
guidance because they’re made for somebody just like
you.
R. 38, Tr. at 33. As we noted above, Whitlow then informed this
court that his sole issue on appeal was the district court’s
refusal to apply the Fair Sentencing Act. Following the Su-
preme Court’s ruling in Dorsey, we then vacated the sentence
and remanded for resentencing.
The government now contends that, at the 2013 re-sentenc-
ing, the district court need not have reached any new argu-
ments that could have been raised at Whitlow’s first sentencing
and that we should not address those issues either. The
government cites as “new” Whitlow’s argument that the court
should not apply the career offender guideline to him and that
the court should apply a sentence only incrementally longer
than the state court sentences previously applied to Whitlow.
But these were not “new” issues before the district court. At
the first sentencing hearing, the court itself raised the issue of
its discretion regarding the career offender guideline and also
indirectly addressed the issue of incremental sentencing. The
parties argued these matters on the merits and the court
No. 13-1347 9
ultimately concluded that the career offender guideline was
appropriately applied to Whitlow and that a guidelines
sentence was necessary in light of his failure to change the
course of his criminal conduct following lesser state sentences.
Thus, when Whitlow raised these issues at the 2013 re-sentenc-
ing, they were simply reassertions of issues considered at the
2011 sentencing. That said, Whitlow expressly confined his first
appeal to the applicability of the Fair Sentencing Act, telling
this court that he had “only one issue on appeal: Whether the
Fair Sentencing Act applies,” and again that he “had only one
nonfrivolous issue to raise on appeal: Whether the Fair
Sentencing Act applies.” R. 9, at 5; R. 11, at 3.
In assessing the scope of our initial remand, an issue that
could have been raised on appeal but was not is waived and,
therefore, not remanded. United States v. Barnes, 660 F.3d 1000,
1006 (7th Cir. 2011); United States v. Schroeder, 536 F.3d 746,
751–52 (7th Cir. 2008). Whitlow contends that, like the defen-
dant in Schroeder, the truncated appeals process employed by
the parties in the first appeal precluded him from raising any
other issues, and so his additional objections were not waived.
But Schroeder’s “first appeal was truncated before he had the
opportunity to challenge the sentencing court's rulings on the
issues” that he raised in his second appeal. 536 F.3d at 751.
That was not the case here where Whitlow filed two docu-
ments in this court professing that he had only one non-
frivolous issue to appeal. In either of those documents,
Whitlow could have reserved additional issues related to the
first sentencing.
The second major limitation on the scope of a remand is
that any issue conclusively decided by this court on the first
10 No. 13-1347
appeal is not remanded. Schroeder, 536 F.3d at 752; United States
v. Husband, 312 F.3d 247, 251 (7th Cir. 2002). The only issue
conclusively decided in the first appeal is the applicability of
the Fair Sentencing Act, and so nothing in our first ruling
precluded the district court from considering other issues in its
discretion. We have also held that “when a case is generally
remanded to the district court for re-sentencing, the district
court may entertain new arguments as necessary to effectuate
its sentencing intent, but it is not obligated to consider any new
evidence or arguments beyond that relevant to the issues
raised on appeal.” Barnes, 660 F.3d at 1007. See also Pepper v.
United States, 131 S. Ct. 1229, 1251 (2011) (a criminal sentence
is a package of sanctions that the district court utilizes to
effectuate its sentencing intent, and because a district court's
original sentencing intent may be undermined by altering one
portion of the calculus, an appellate court when reversing one
part of a defendant's sentence may vacate the entire sentence
so that, on remand, the trial court can reconfigure the sentenc-
ing plan to satisfy the sentencing factors in 18 U.S.C. § 3553(a)).
General remands, such as the one we issued in this case,
“render a district court unconstrained by any element of the
prior sentence.” Barnes, 660 F.3d at 1007. The district court was
thus free to consider any issue it considered necessary to
effectuate its sentencing intent, even issues Whitlow failed to
raise in his first appeal. At the same time, the court was not
obligated to consider issues that Whitlow had expressly
waived.
As Whitlow correctly points out, however, the government
did not alert the district court that these issues may have
exceeded the scope of the remand and did not argue to the
No. 13-1347 11
district court that the issues should be considered waived.
Instead, the government responded on the merits and waived
any waiver. See United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (claims of waiver may themselves be waived; when
the government fails to resist a petition by arguing that the
point was not preserved, and instead urges a court to decide
the issue on the merits, the waiver is waived). But even if we
consider Whitlow’s argument on the merits, we conclude that
the court did not err. The court more than adequately ad-
dressed the career offender guideline issue and the need for
incremental punishment. In fact, at both sentencing hearings,
the court addressed the unfortunate pattern of repeat offenders
in Kankakee County receiving relatively light sentences in state
court until they finally encounter the federal system, where
they are subject to lengthy sentences and the career offender
guideline. The court was well aware of its discretion to
disregard that guideline and to adjust the sentence for incre-
mental punishment. It simply chose not to adjust the sentence
on those bases, remarking that “[a] lifetime of crime will
eventually get you a lifetime of time in Federal Court.” R. 54,
Tr. at 14. See United States v. Womack, 732 F.3d 745, 747 (7th Cir.
2013) (as long as the sentencing court considers the arguments
made in mitigation, even if implicitly and imprecisely, the
sentence imposed will be found reasonable). The court did
adjust the sentence downward for Whitlow’s post-sentencing
efforts at rehabilitation, an adjustment to which the govern-
ment does not object. In all other respects, the court generally
followed the government’s recommendation to re-impose a
sentence at the bottom of the guidelines range, rejecting any
challenge to the appropriateness of the career offender guide-
12 No. 13-1347
line in this instance. There was no procedural error in this
approach; the record as a whole reveals that the court carefully
considered all of Whitlow’s arguments in mitigation.
B.
At the time of the 2011 sentencing, the BOP had not yet
determined how it would treat the period of pre-trial deten-
tion, when Whitlow was finishing a sentence imposed by the
state for conduct that could be considered related to the offense
of conviction in federal court. Because Whitlow could not have
raised this issue at the first sentencing, there could be no
waiver for failure to raise it earlier. Barnes, 660 F.3d at 1006;
Schroeder, 536 F.3d at 751–52. As we noted, at the 2013 re-
sentencing, the government urged the district court to decline
Whitlow’s request to adjust his sentence based on this calcula-
tion by the BOP. The government instead suggested that
Whitlow could pursue administrative remedies with the BOP.
The court remarked:
Well, and but the way the Bureau of Prisons did it in
this case was, in effect, made it consecutive. By not
starting until March, they, in effect, waited, I think, until
the State sentence was over and then started there and,
in effect, took away from me a decision as to whether I
wanted consecutive or concurrent. They made it, in
effect, consecutive, the way it looks to me.
R. 54, Tr. at 10. When declaring the final sentence, the court
stated:
I’m not going to make any comment about the Bureau
of Prisons’ calculation. So I’m not, in effect, lowering
No. 13-1347 13
your sentence because they decided to make the sen-
tence consecutive. I would have made it concurrent if
I’d have known it, but that’s the way things are.
R. 54, Tr. at 20.
The parties now agree that the court misapprehended its
discretion to adjust Whitlow’s sentence to account for the eight
months he was held in pretrial custody, time for which the
BOP declined to give him credit. The court made clear that it
would have sentenced Whitlow differently if it had known the
BOP would take this approach. But the court does in fact
possess the discretion to adjust Whitlow’s sentence to account
for the time the BOP refused to credit. See United States v.
Campbell, 617 F.3d 958, 960–61 (7th Cir. 2010); United States v.
Bangsengthong, 550 F.3d 681, 682–83 (7th Cir. 2008). We
therefore vacate and remand Whitlow’s sentence for the
limited purpose of giving the court an opportunity to exercise
its discretion to adjust Whitlow’s sentence to account for the
eight month pre-trial detention, if the court finds it appropriate
to do so. See United States v. Simms, 721 F.3d 850, 852 (7th Cir.
2013) (describing the two types of limited remand, including
where “the appellate court returns the case to the trial court
but with instructions to make a ruling or other determination
on a specific issue or issues and do nothing else”).
VACATED AND REMANDED.