Sentencing — sentence after remand

Listen to this article

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — sentence after remand

Where the district court recalculated the guideline range after the original sentence was vacated, the new sentence must be vacated also.

“In short, there was no legitimate reason for the government to ignore the accessory-after-the-fact guideline at the time of Hill’s first sentencing, and its failure to do so resulted in a waiver of its arguments as to that guideline. The prior appeal focused solely on Hill’s criminal history (Chapter 4 of the Guidelines) and in particular on whether he qualified as a career offender under section 4B1.1. Our resolution of that issue in no way implicated the underlying offense conduct (Chapter 2 of the Guidelines), which of course included Hill’s status as an accessory after the fact under section 2X3.1. When we remanded the case so that Hill could be resentenced, we instructed the court to consider whether Hill’s conviction for reckless endangerment encompassed conduct that should be viewed as in furtherance of the conspiracy to which he pled guilty in this case rather than as an aspect of his prior criminal history; but we otherwise left the Guidelines calculations undisturbed. Nothing in our decision invited the parties or the court to start from scratch and explore entirely new enhancements. See United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (‘If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.’).”

Affirmed in part, and Vacated in part.

10-2677 & 10-2933 U.S. v. Tello

Appeals from the United States District Court for the Eastern District of Wisconsin, Randa, J., Rovner, J.