United States v. David Mobley , 833 F.3d 797 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2255
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID MOBLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 161 — Elaine E. Bucklo, Judge.
____________________
ARGUED MAY 19, 2016 — DECIDED AUGUST 15, 2016
____________________
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
WOOD, Chief Judge. David Mobley says that he is trying to
get one bite at the apple, while the government claims he is
trying to eat the whole bushel. We are not sure either one is
right—both the parties and the district court may be compar-
ing apples and oranges. After pleading guilty, Mobley has
now had two sentencing hearings. But he argues that neither
one fully comported with United States v. Thompson, 777 F.3d
2 No. 15-2255
368 (7th Cir. 2015). We take this opportunity to clarify what a
remand under Thompson requires of the district court. Because
we cannot determine from the record before us whether
Mobley’s second sentencing hearing was procedurally sound,
we vacate his sentence and remand for him to receive what
we hope will be his final sentencing hearing.
I
In 2012 Mobley was charged with bank fraud and aggra-
vated identity theft in violation of 18 U.S.C. §§ 1344 and
1028A(a)(1). He pleaded guilty to both in 2013. At his first sen-
tencing hearing, the district court imposed a within-guide-
lines sentence of 137 months’ imprisonment for the bank
fraud count, and a consecutive sentence of 24 months for the
aggravated identity theft count. The court also imposed a five-
year term of supervised release for the bank fraud, and a one-
year term of supervised release for the aggravated identity
theft, to run concurrently. The court then imposed the 13
standard conditions of supervised release and ordered
Mobley to comply with them with no further explanation.
Mobley filed a timely notice of appeal.
Before we could hear the case on appeal, we decided
United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). In re-
sponse to Thompson, the government and Mobley filed a joint
motion requesting a summary reversal and remand for resen-
tencing. The motion acknowledged that Thompson required
this action because the district court had not justified the con-
ditions of supervised release with reference to the factors
identified in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(c). We
granted the motion in an order that stated simply: “The ap-
pellant’s sentence is VACATED, and the case is REMANDED
to the district court for resentencing in light of [Thompson].”
No. 15-2255 3
The district court held a second sentencing hearing in June
2015. Prior to the second sentencing hearing, the government
filed a position paper asking the court to impose the same sen-
tence as before. Defense counsel did not file any documents.
At that sentencing hearing, there was some confusion about
the scope of the remand. The district court asked, “which
parts of the supervised release do you [Mobley] disagree
with?” Mobley’s counsel replied that he believed that full re-
sentencing was required; he wanted an opportunity to argue
for a lower sentence and to present new mitigation evidence,
namely, that Mobley had recently completed his G.E.D. while
in prison. Counsel added that he had no substantive objection
to the terms of supervised release that were recommended in
the pre-sentence report.
The district court then expressed either its concern or its
confusion over the point of the new proceeding. It com-
mented that because Mobley had no substantive objection to
the conditions of supervised release, the remand seemed to be
“sort of an end run around my sentence.” It stated that it was
standing by its original sentence, explaining, “I gave it a lot of
thought at the time and I imposed a sentence that I thought in
this case, for this person, was appropriate. I really don’t have
anything more to say about it, and I really wasn’t intending to
go over it again.” The district court concluded the exchange
by saying, “I really don’t think there is anything that you
could say that would make me change that sentence.” At that
point, the court imposed the conditions of supervised release
and explained the justification for each one.
After listing the conditions of supervised release, the court
asked Mobley directly whether he disagreed with any of
4 No. 15-2255
them. In response, Mobley indicated that he believed his sen-
tence was based on the incorrect criminal history category.
The district court responded, “[w]ell, those are issues you
could have raised on appeal and then chose not to.” The court
noted that the judgment “just says [remand] on the Thompson
factors. … [T]o the extent that you’re disagreeing with the
conditions of supervised release on the ground that [the sen-
tence] should have been a different category … I’m not recon-
sidering that.” When the defendant asked for a further expla-
nation for why the court was not reconsidering his sentence
as a whole, the court explained, “I have no reason to recon-
sider your sentence. One, it wasn’t presented here. Two, the
Seventh Circuit didn’t say to. Three, you didn’t challenge any
parts of my sentence on appeal, except for supervised re-
lease.” The court entered final judgment, intending to impose
a prison sentence of 161 months’ imprisonment. The sentence
was mistakenly recorded as 171 months’ imprisonment.
Mobley once again appeals.
Mobley argues that because the district court flatly refused
to reconsider any portion of his sentence, it did not conduct a
full resentencing as required by Thompson. Specifically, he as-
serts that the court procedurally erred by refusing to consider
his mitigation evidence and by refusing to allow him the op-
portunity to allocute. In the alternative, Mobley requests that
this court correct the apparent typographical error in his sen-
tence. The government argues that a remand under Thompson
is a limited remand that requires the district court to consider
only the conditions of supervised release in light of the 18
U.S.C. § 3553(a) factors. Therefore, it argues, the district court
was under no obligation to accept Mobley’s new mitigation
evidence or to give him the opportunity for allocution. In any
No. 15-2255 5
event, it says, the district court did consider Mobley’s mitiga-
tion evidence and simply gave it no weight. It agrees that the
sentence should have been for 161 months and that this cor-
rection should be made.
II
Thompson, along with several other decisions from this
court in recent years, represented a new and more serious ap-
proach toward supervised release. The logic is straightfor-
ward: supervised release is part of a criminal sentence; condi-
tions must be justified in roughly the same manner as a term
of imprisonment is, according to section 3583(c) (which incor-
porates most of the familiar factors under section 3553(a));
and greater effort is necessary to ensure both the clarity and
the suitability of any condition that is imposed. Because the
conditions of supervised release are part of a sentence, the dis-
trict court must “state in open court the reasons” for imposing
those particular conditions. Thompson, 777 F.3d at 373 (inter-
nal quotation marks omitted) (quoting 18 U.S.C. § 3553(c)). Fi-
nally, we noted that there may be a relation between the
length of a prison term and the length of a term of supervised
release (along with the conditions attached to it), and so a
fresh look at the entire sentencing package may be needed
even if only the supervised release portion of the sentence
must be set aside. Id. at 382.
The process of considering and explaining in open court
the conditions of supervised release and how they advance
the statutory goals of sentencing is designed to promote more
tailored and effective conditions and to eliminate “rote” im-
position of conditions that may be vague or irrelevant to the
defendant. Id. at 376–77. Since Thompson, we have issued nu-
6 No. 15-2255
merous remands requiring that district courts resentence de-
fendants in light of its instructions. See, e.g., United States v.
Coleman, 806 F.3d 941, 956 (7th Cir. 2015); United States v.
Downs, 784 F.3d 1180, 1182 (7th Cir. 2015); United States v.
Stanford, 806 F.3d 954, 967 (7th Cir. 2015).
We have not, however, been as clear as we might be on
what that resentencing must entail. At the time of Mobley’s
second sentencing, for example, we had only just issued
United States v. Kappes, 782 F.3d 828 (7th Cir. 2015), where we
discussed Thompson at length. The present case offers another
opportunity to clarify what is necessary, and what is desira-
ble. It presents three separate questions: first, whether a re-
mand “in light of Thompson” is a full remand or a remand lim-
ited to issues relating to supervised release; second, if it is a
full remand, what a district court must do at that full resen-
tencing; and third, whether the district court here did what
was necessary.
A
A remand “in light of Thompson” is a remand that vacates
the entire sentence and requires full resentencing, unless the
opinion and mandate specify otherwise. Under 28 U.S.C.
§ 2106, we may issue a general remand or a limited remand.
Because a criminal sentence is normally a package that in-
cludes several component parts (term of imprisonment, fine,
restitution, special assessment, supervised release), when one
part of the package is disturbed, we prefer to give the district
court the opportunity to reconsider the sentence as a whole so
as to “effectuate its sentencing intent.” Pepper v. United States,
562 U.S. 476, 507 (2011). Vacating the sentence and returning
the case to the district court for imposition of a new sentence
allows the district court to “reconfigure the sentencing plan”
No. 15-2255 7
so as to “satisfy the sentencing factors in 18 U.S.C. § 3553(a).”
Id. (internal quotation marks omitted); see also United States
v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011) (explaining that a
full resentencing allows the district court to “unbundle the
sentencing package”).
As we stated in Kappes, this reasoning applies to remands
based on the conditions of supervised release just as much as
it applies to sentences that are vacated because one count is
reversed, or there is a problem with a Guidelines computa-
tion. “Complete resentencing” is appropriate because “custo-
dial and supervised release portions of a sentence serve some-
what … overlapping purposes[, and thus] there might
properly be an interplay between prison time and the term
and conditions of supervised release.” 782 F.3d at 866–67. We
therefore take this opportunity to clarify that when we issue
an order vacating and remanding a sentence based on Thomp-
son, it is a full remand unless otherwise noted in the opinion
and the formal mandate.
B
Next, we consider what a full remand under Thompson
(which occurs when the mandate shows that the sentence was
vacated) enables, and requires, the district court to do. In the
course of imposing a new sentence, the district court is au-
thorized to reconsider all elements of the sentence, including
in particular the prison term and the conditions of supervised
release. It may consider any relevant evidence or arguments
that are properly admissible at the new hearing. While the
district court is not required to consider new arguments or
evidence about the term of imprisonment (or any other ele-
ment of the sentence), it must exercise its discretion in declin-
ing to do so—that is, it is required to acknowledge that it has
8 No. 15-2255
this power and explain why or why not it wishes to exercise
it. United States v. Booker, 543 U.S. 220 (2005), provides the
proper analogy. Booker modified the Sentencing Guidelines,
changing them from mandatory to true guidance. But they
provide a point of reference in all cases, and the district court
may, if it wishes, impose a within-guidelines sentence even
though it is not required to do so. Booker, 543 U.S. at 226. A
district court commits significant procedural error if it
“treat[s] the Guidelines as mandatory.” Gall v. United States,
552 U.S. 38, 51 (2007). In other words, if a district court did not
know that it had the discretion to choose a non-guidelines
sentence, it could not have exercised its discretion when im-
posing its sentence, and thus the sentence would be procedur-
ally improper even if that same sentence would be substan-
tively reasonable had it been imposed in the proper manner.
Cf. Nelson v. United States, 555 U.S. 350, 352 (2009) (sentencing
court may not presume that within-sentence guidelines is rea-
sonable); Rita v. United States, 551 U.S. 338, 351 (2007) (same).
Likewise, a Thompson remand gives a district court the
power to hear new evidence or arguments (or reconsider the
same evidence and arguments) as it fashions the new sen-
tence. The defendant need not have raised these arguments
on appeal; once the case is remanded for a complete resen-
tencing, the defendant may assert any argument she wishes.
The district court may choose to exercise its discretion in a
manner that does not consider any new evidence or new ar-
guments (or any old evidence or old arguments), and it may
choose to impose the exact same sentence as was imposed at
the original sentencing hearing. The new evidence may be cu-
mulative of evidence already in the record; it may be too un-
reliable to be admissible; or there may be other sound reasons
for rejecting it. But the court must acknowledge that it has the
No. 15-2255 9
authority to hear new arguments, so that we will know on ap-
peal that it exercised its discretion in either accepting or re-
jecting new material. Cf. Rita, 551 U.S. at 351.
Since the posture of the case on a full remand is just as if
sentence has not yet been pronounced, a full remand does re-
quire the district court to provide the defendant an oppor-
tunity for allocution. Federal Rule of Criminal Procedure
32(i)(4)(A)(ii) states “[b]efore imposing sentence, the court
must ... address the defendant personally in order to permit
the defendant to speak or present any information to mitigate
the sentence.” As we explained in United States v. Barnes, this
right of a defendant to speak on her own behalf—known as
allocution—attaches when “the scope of the punishment is
not preordained.” 948 F.2d 325, 329 (7th Cir. 1991); see also
Green v. United States, 365 U.S. 301, 304 (1961) (holding de-
fendant’s right to speak is personal, and not satisfied by de-
fense counsel having the opportunity to speak). When we va-
cate a sentence and order a full remand, the defendant has a
“clean slate”—that is, there is no sentence until the district
court imposes a new one. Barnes, 948 F.3d at 330. Thus, when
the district court conducts a new sentencing pursuant to a
Thompson remand, the defendant’s “right to personally ad-
dress the sentencing judge [is] resuscitated” regardless of
whether she had this opportunity at any prior sentencing
hearing. Id.
Finally, a full remand does not require the district court to
rehear all (or any) of the evidence that it heard at the original
sentencing hearing. As defense counsel acknowledged at oral
argument, the record that was compiled during a prior sen-
tencing hearing is still valid, and the district court at a later
sentencing hearing may continue to rely on it. Nothing in the
10 No. 15-2255
nature of vacating a sentence or remanding for a new sentenc-
ing hearing in light of Thompson erases that record.
C
Last, we must apply these principles to Mobley’s case. We
review a district court’s determination of the scope of remand
de novo. United States v. Purham, 795 F.3d 761, 764 (7th Cir.
2015). Based on the transcript before us, it appears that the
court was under the misapprehension that the remand was
limited to the conditions of supervised release. That
amounted to a mistake of law, which must be corrected. The
transcript of the second sentencing hearing leaves us with the
distinct impression that the court believed that it had no dis-
cretion to hear new arguments (including ones not raised at
any earlier stage), to hear new mitigation evidence, and to re-
consider arguments made in an earlier sentencing hearing.
Nor did the court give Mobley an opportunity for allocu-
tion—something we have just said that it was required to do.
See Barnes, 948 F.2d at 329. The twist here is that Mobley did
not object to this misstep. Ordinarily, we would review only
for plain error. United States v. Noel, 581 F.2d 490, 502–03 (7th
Cir. 2009). For an error to be plain, it must be both obvious
and have affected Mobley’s substantial rights. United States v.
Olano, 507 U.S. 725, 732 (1993). The error here was obvious
given Barnes. We need not say whether this would be enough,
by itself, to require a remand. Because we are sending the case
back for a full resentencing, the district court need only ensure
that he has this opportunity at the proper time in the new
hearing.
No. 15-2255 11
Finally, the district court appears to have made a clerical
error in entering the sentence. It stated that it wished to im-
pose the same term of imprisonment as it had done previ-
ously, 161 months, but entered 171 months. In light of the re-
mand, we need do nothing about this either. There is no rea-
son to expect any typographical errors the next time around.
III
Because we cannot be sure from the record before us that
Mobley’s second sentencing hearing comported with the re-
quirements we have outlined here, we VACATE his sentence
and REMAND for a complete resentencing hearing consistent
with this opinion.