United States v. William Conour ( 2017 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2017
Decided November 21, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16-1698
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern District
of Indiana, Indianapolis Division.
v.
No. 1:12CR00129-001
WILLIAM F. CONOUR,
Defendant-Appellant. Richard L. Young,
Judge.
ORDER
William Conour, a former attorney, pleaded guilty to wire fraud after the
government discovered he had swindled clients for years by stealing settlement
proceeds. The district court initially sentenced him to 10 years in prison followed by a
year of supervised release. But in a prior appeal we granted the parties’ joint motion for
resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). On
remand the district court again sentenced Conour to 10 years, and he now argues that a
third sentencing is necessary. He contends that the court misunderstood the scope of a
Thompson remand and erred both by refusing to entertain arguments made in his
sentencing memorandum and by denying him the right to allocute. We agree and
remand again for resentencing.
No. 16-1698 Page 2
Conour practiced law for nearly forty years and built a lucrative practice
representing accident victims. Starting in 1999, he encouraged clients to leave him in
charge of their settlement proceeds, which he promised to hand over to a trust company
that would distribute the proceeds in a series of monthly payments instead of as a lump
sum. But he skimmed much of this settlement money for himself. Even worse,
sometimes he did not tell clients he had received their settlement proceeds (or even that
the case had settled) and instead simply stole the funds. Conour’s fraud finally came to
light when the FBI received a tip in 2011.
A year later Conour was charged with wire fraud, 18 U.S.C. § 1343. The charging
information alleges that, as part of a scheme to defraud, he had settled a client’s case by
faxing a release to an out-of-state insurance company. Conour received and negotiated
the $450,000 settlement check without telling his client or giving the client any part of
the funds. All told, the information accuses Conour of converting $4.5 million belonging
to over 25 clients.
Conour pleaded guilty. He stipulated that he had “devised and conducted a
scheme to defraud his clients out of money,” settled the client’s case without his
knowledge, faxed the agreement using interstate wires, and used the $450,000 to pay his
own expenses.
At his initial sentencing Conour conceded, through counsel, that the loss exceeds
$2.5 million, that the number of victims is greater than 10, and that he had abused a
position of trust. But he successfully contested several proposed increases to his offense
level, and the district court granted him a 3-level reduction for acceptance of
responsibility. Conour lost only two objections to upward adjustments: a 2-level
increase for targeting vulnerable victims and another 2-level increase for using
sophisticated means to commit the crime. After calculating a guidelines imprisonment
range of 97 to 121 months, the court sentenced Conour to 120 months plus a year of
supervised release. The court also imposed more than $6 million in restitution.
Conour appealed and filed a brief principally contending that the district court
had imposed several problematic conditions of supervised release. After briefing was
completed, we decided United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). In
response to our request for statements of position following Thompson, the parties filed
a joint motion requesting a remand for resentencing, which we granted.
On remand Conour represented himself and sought both to revisit old issues and
raise new ones. He first moved to dismiss the information and for bond pending
resentencing. The district court denied both motions, characterizing Conour’s motion to
dismiss as “a last ditch attempt to evade responsibility for his conduct.” Conour then
No. 16-1698 Page 3
submitted a resentencing memorandum, again challenging the upward adjustments for
targeting vulnerable victims and using sophisticated means. But he also argued for the
first time that the loss is zero; that the number of victims is 2, not 10 or more; that he did
not abuse a position of trust; and that he should not be ordered to pay any restitution.
The government replied that the district court’s rulings on old matters are law of
the case, and that Conour had waived his new arguments by not raising them at the
initial sentencing or on appeal. Alternatively, the government said it was prepared to
introduce evidence establishing the disputed guidelines matters. And since Conour
seemed to be renouncing his previous declarations of fault, the government also argued
that he should no longer receive the 3-level decrease for accepting responsibility.
The district judge did not delve into any of these issues at resentencing. At the
outset the judge said he would entertain “discussion regarding conditions of supervised
release” (as well as a second matter that Conour declined to pursue). But the judge
concluded that Conour had waived any objection to rulings made at the first sentencing
but not challenged on appeal. The judge reasoned that he was “not authorized by the
7th Circuit to reopen those matters.” And when asked by the prosecutor if he would
reassess prior rulings if authorized, the judge first said no, explaining that he still
thought 10 years was an appropriate sentence. But then the judge added that he was
incorporating the original sentencing into the record, and that he was “not authorized
to disturb that.” The judge then asked for comments about the appropriate conditions
of supervised release; Conour offered none, and the government proposed eliminating
supervised release entirely. The judge accepted that proposal and resentenced Conour
to 10 years’ imprisonment without any supervised release.
After the judge had pronounced this sentence, the prosecutor urged him to let
Conour speak about his efforts to rehabilitate himself in prison. At that point, the judge
told Conour that he could make a statement:
[Y]ou certainly have a right and an opportunity to make any statement
you wish to the Court regarding the issue of sentencing, any issues in
sentencing that I’m authorized to take a look at here; or for that matter,
anything that’s on your mind that is relevant to the matters we’re
discussing here today.
Conour then engaged the judge in a dialogue touching on his resentencing memo, and
the judge repeated his position that Conour had waived his arguments by not raising
them previously.
No. 16-1698 Page 4
On appeal Conour argues that the district judge erred by declining to conduct a
full resentencing. He says that his case is indistinguishable from United States v. Mobley,
833 F.3d 797, 803 (7th Cir. 2016), in which we remanded a second time for resentencing
because the sentencing judge had misunderstood the scope of a Thompson remand.
Similarly, says Conour, in his case the judge mistakenly believed that the remand was
limited to revising the conditions of supervised release and did not encompass
Conour’s other arguments. Moreover, the judge—again, as in Mobley—did not let
Conour allocute before pronouncing sentence. Thus, Conour concludes, we must again
remand for resentencing.
The government concedes that the district judge misunderstood the scope of the
remand and thus erred in thinking he lacked the authority to consider Conour’s
arguments. As we explained in Mobley, a district court may, following a Thompson
remand, “reconsider the sentence as a whole” in order to “effectuate its sentencing
intent.” 833 F.3d at 801. That means the sentencing court may, in its discretion, reassess
prior rulings and entertain entirely new contentions, even if they could have been
raised previously. See id. at 801–02.
The district court did not know about this discretion (understandably, since
Mobley had not even been argued). But the government says that knowing about it
would not have made a difference. According to the government, Conour’s case is
similar to United States v. Lewis, 842 F.3d 467, 474 & n.2 (7th Cir. 2016), in which we
concluded that a district court’s ignorance about its power to entertain new arguments
after a Thompson remand was harmless. The government contends that here the district
court “left no doubt” that it would not have exercised its discretion to hear Conour’s
arguments. And, the government continues, Conour’s resentencing memo contained
meritless arguments that could not have benefitted him.
Conour’s case, however, is closer to Mobley than to Lewis. In Lewis, the district
court had entertained the defendant’s renewed arguments and calculated a lower
imprisonment range before choosing to impose the same prison sentence as before.
842 F.3d at 472–73. Here, the district court apparently thought it could not adjust the
sentence. In Lewis, moreover, the district court alternatively considered the defendant’s
newly raised argument and rejected it on the merits, id. at 472, but in this case the judge
did not share his views about any of Conour’s arguments. The prosecutor did press the
judge to say whether he would reassess his earlier rulings if allowed; the judge said no,
but it is difficult to say if “no” meant that the judge would not or could not. After all, the
exchange between them ended with the judge’s comment that he was “not authorized
to disturb” the record from the original sentencing. The judge’s “no” might suggest
No. 16-1698 Page 5
disinterest in rehashing issues already litigated, but that is far from certain; in short, his
comments offer no insight about his willingness to consider the new arguments in
Conour’s resentencing memo.
Finally, in Lewis we were able to assess the defendant’s argument because the
district court had evaluated the merits and factual findings were unnecessary. But here
the district judge did not consider Conour’s new arguments. And Conour’s principal
contention about the amount of loss is a factual inquiry. See United States v. Locke,
643 F.3d 235, 244–45 (7th Cir. 2011); United States v. Barnhart, 599 F.3d 737, 747–48
(7th Cir. 2010). As in Mobley, the record shows that the district judge mistakenly
believed that the remand was limited to revising the conditions of supervised release
and thus thought he “had no discretion to hear new arguments (including ones not
raised at any earlier stage), to hear new mitigation evidence, and to reconsider
arguments made in an earlier sentencing hearing.” 833 F.3d at 803.
We are skeptical, though, that the contentions in Conour’s resentencing memo
will help his cause. If anything, the district court seemed to conclude that those
arguments weigh against him, rather than in his favor. Still, even if we could accept the
government’s assertion that futility makes the judge’s mistake about Thompson
harmless, the judge committed a second procedural error that warrants another
resentencing: he did not invite Conour to allocute before imposing sentence.
See FED. R. CRIM. P. 32(i)(4)(A)(ii).
Before a district court imposes sentence, it must invite the defendant personally
to speak and give any information that might mitigate his sentence. Id. This right to
allocute “is the right to have your request for mercy factored into the sentencing
decision.” United States v. Barnes, 948 F.2d 325, 329 (7th Cir. 1991). It is a personal right
and separate from counsel’s presentation because even “[t]he most persuasive counsel
may not be able to speak for a defendant as the defendant might, with halting
eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961)
(Frankfurter, J., plurality opinion). And on a full remand, like Conour’s, the defendant
has “no sentence until the district court imposes a new one,” so his right to personally
address the court is “revived” on remand. Mobley, 833 F.3d at 802; see Barnes, 948 F.2d
at 330. Thus, Conour was entitled to again address the district court before sentence was
imposed, but that opportunity was withheld. He did not object to the denial, though, so
we review for plain error. Mobley, 833 F.3d at 803. That standard is met here.
The government says that plain error did not occur because Conour had “ample
opportunity to address the district court” and identifies several occasions when he
spoke at the resentencing. This misses the point. The rule requires that allocution
No. 16-1698 Page 6
precede the court’s selection of a sentence, but Conour’s opportunity to speak at any
length came after the court already had sentenced him. Before imposing the sentence,
the judge asked Conour, who was proceeding pro se, only about the two issues he had
raised in his first appeal.
A belated allocution is error unless the district court puts aside its original
determination and takes “steps to communicate effectively to the defendant that, through
his statement, he has a meaningful opportunity to influence the sentence.” United States
v. Luepke, 495 F.3d 443, 450 (7th Cir. 2007) (emphasis in original); see Barnes, 948 F.2d
at 331 & n.5. After imposing sentence and then being reminded by the government
about Conour’s right to speak, the district judge invited Conour to address the court.
But the judge did not set aside the sentence before hearing from Conour or give any
assurances that he would reconsider the sentence already imposed.
We “presume prejudice when there is any possibility that the defendant would
have received a lesser sentence had the district court heard from him before imposing
sentence.” Luepke, 495 F.3d at 450. The government does not concede that Conour was
denied his right to allocute, so it makes no effort to refute this presumption. And we
cannot say with certainty that Conour would not have received a lesser sentence had he
been afforded the opportunity to allocute.
Still, we are not required to grant Conour relief, but we may if we determine that
the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial
proceedings.” Luepke, 495 F.3d at 451 (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)). Ordinarily we will remand when the right to allocute has been denied, “absent
some rare indication from the face of the record” that the denial did not affect the
fairness of the sentencing process. Luepke, 495 F.3d at 452; see United States v. Pitre,
504 F.3d 657, 663 (7th Cir. 2007).
The government argues that the procedures here were not unfair to Conour.
Essentially the government suggests that Conour received the same reconsideration
that other defendants receive when we direct a limited remand for reconsideration of
the supervised-release portion of their sentences, except that Conour also personally
addressed the court. Once again, the government misses the point. The government
joined Conour in asking for a Thompson remand, which is a remand for a full
resentencing, not a limited remand. Perhaps the government did not understand what it
agreed to, but it must accept that we did what it asked and gave Conour a clean slate,
which revived his right to allocute. See Mobley, 833 F.3d at 802.
We conclude that Conour’s inability to allocute before he was sentenced did
“seriously affect” the fairness of the proceedings. Conour was not given an opportunity
No. 16-1698 Page 7
to speak about anything that might have mitigated his prison sentence—whether it was
his rehabilitative efforts in prison, an explanation of his criminal actions, or even a
rehashing of the arguments in his resentencing memo—before the judge imposed a
sentence that was near the top of the guidelines imprisonment range. And, unlike in the
majority of cases, Conour did not have counsel to voice arguments in mitigation on his
behalf. Additionally, as the Tenth Circuit recently explained, even in circumstances
where a lesser sentence might be unlikely, denying the defendant a chance to allocute
undermines other values connected to the allocution, including giving him the chance
to accept responsibility and providing the court with a better understanding of him.
See United States v. Bustamante-Conchas, 850 F.3d 1130, 1142 (10th Cir. 2017). These
circumstances, coupled with the district judge’s erroneous belief that he could not
entertain Conour’s arguments about the guidelines calculations, might give the wrong
impression to Conour and the public that the court imposed a predetermined (and,
indeed, previously imposed) sentence.
Moreover, this case is unlike others in which we have declined to remedy
allocution errors. The government has cited only one example where we did not
remand for resentencing despite an allocution error. In United States v. Noel, 581 F.3d
490, 504 (7th Cir. 2009), we concluded that even though the district court did not
personally invite the defendant to allocute at sentencing, the fairness of the process was
not affected because the judge twice mentioned the right to allocute before imposing
sentence, defense counsel read aloud a letter from the defendant that was structured
similarly to an allocution, and the defendant received a sentence below the guidelines
range. Differences in Noel and Conour’s case abound: Conour was not informed of his
right to address the court nor did he get to speak at any length before receiving his
sentence at the high end of the guidelines range.
Apart from Noel, we are aware of only one other case in which we declined to
remand, but that case involved revocation of supervised release. See Pitre, 504 F.3d
at 663. The right to allocute at a revocation hearing is the same as at sentencing.
See id. at 662. But Pitre also is distinguishable from Conour’s case because the court in
Pitre already had warned the defendant that she would receive a particular prison term
if she again violated the conditions of her supervised release and then the court
followed through the next time she broke her promise to abide by the conditions of
release. Id. at 663. We concluded that denying the defendant her right to allocute did
not affect the fairness of the proceedings because she knew she would receive a prison
term of that length and her lawyer did not attempt to contest the term of imprisonment
at the revocation hearing. Id. At Conour’s resentencing, by contrast, the judge was not
No. 16-1698 Page 8
simply implementing a predetermined prison term and Conour, as shown by his
resentencing memo, did wish to speak to the court about the length of his sentence.
Finally, Conour asks that we reassign the case to a different district judge
pursuant to Circuit Rule 36. But we see no reason why the district judge would be
unable to fairly consider the issues on remand; he exhibited a willingness to comply
with the court’s remand order and showed no bias against Conour. See United States v.
Tova-Pina, 713 F.3d 1143, 1148 (7th Cir. 2013).
Accordingly, we vacate the sentence and remand for resentencing.