Criminal Procedure – appeal — waiver

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure – appeal — waiver

Where a defendant failed to raise an argument in his first appeal, he forfeited the right to raise it on appeal after his resentencing.

“Our remand in Zahursky’s first appeal did not give him an unfettered right to introduce any and all new sentencing arguments that occurred to him. Just because some of the facts underlying the sentencing enhancements overlap does not mean that a narrow challenge on one ground (here, the undue influence enhancement) also sweeps in other grounds (here, the pseudo-count enhancement treating each minor as if there had been a separate count of conviction). This is especially so because the relevant definition of minor is different for the two enhancements. Compare U.S.S.G. § 2G1.3 app. n.1 with U.S.S.G. § 2G1.3 app. n.3(B), ¶ 2. The district court accordingly was entitled to refuse to hear Zahursky’s new challenge. As we recently said, ‘when a case is generally remanded to the district court for re-sentencing, the district court may entertain new arguments as necessary . . . but it is not obligated to consider any new evidence or arguments beyond that relevant to the issues raised on appeal.’ United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011) (emphasis added).”

“By failing to raise the issue in his first appeal, Zahursky forfeited his right to challenge the application of the pseudo-count enhancement under § 2G1.3(d), and the district court was not obliged to consider this new argument on remand.”

Affirmed.

11-2054 U.S. v. Zahursky

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Wood, J.