Plain Error – Sentencing

Listen to this article

7^th Circuit Court of Appeals

Case Name: United States of America v. Rex A. Hopper

Case No.: 20-1162

Officials: RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Plain Error – Sentencing

In February 2018, Rex A. Hopper was convicted of conspiracy to distribute fifty or more grams of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a), 846, and 841(b)(1)(B). The district court initially sentenced Mr. Hopper to 235 months’ imprisonment. On the previous appeal, we concluded that the district court had committed plain error in the calculation of the drug quantity for which Mr. Hopper was responsible and remanded the case to the district court. See United States v. Hopper (Hopper I), 934 F.3d 740 (7th Cir. 2019).

The district court ordered a revised presentence report. That report reduced to 1.17 kilograms the amount of “ice” methamphetamine for which Mr. Hopper was responsible. The new presentence report also assessed an additional criminal history point for a state burglary conviction; the plea for that crime was entered after the original federal sentence had been imposed but before our remand. After re‐ viewing the revised presentence report, Mr. Hopper submit‐ ted a pro se objection to its relevant‐conduct assessment. Specifically, he submitted that a jury, not the court, should have made the determination that the drugs at issue qualified as “ice” for purposes of the Sentencing Guidelines. Notably, Mr. Hopper did not object to the additional criminal history point for the state burglary conviction.

The district court rejected Mr. Hopper’s pro se challenge to his relevant conduct. The court concluded that the issue of drug type, as opposed to drug quantity, already had been decided in the first appeal and was not within the scope of our remand. The court therefore declined to revisit the mat‐ ter. The district court then proceeded to craft a sentence that, in accord with our opinion, held Mr. Hopper responsible for 1.17 kilograms of “ice” methamphetamine and that also took into account his new state conviction for burglary. The district court reimposed a sentence of 235 months’ imprisonment.

Mr. Hopper now maintains that the district court committed plain error in both the determination of the drug type and in the assessment of the additional criminal history point for the state burglary conviction. We conclude that the district court correctly determined that our earlier remand order did not permit it to reconsider Mr. Hopper’s argument about the drug type and therefore properly rejected Mr. Hopper’s pro se objection. We further hold that the district court did not commit plain error in assessing Mr. Hop‐ per an additional criminal history point for his state burglary conviction. We therefore affirm the judgment of the district court.

Affirmed

Full Text

Derek A Hawkins is Corporate Counsel, at Salesforce.