May 19, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 CR161 - Elaine
E. Bucklo, Judge.
WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.
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 comparing 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 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.
Mobley was charged with bank fraud and aggravated identity
theft in violation of 18 U.S.C. §§ 1344 and
1028A(a)(1). He pleaded guilty to both in 2013. At his first
sentencing 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.
we could hear the case on appeal, we decided United
States v. Thompson, 777 F.3d 368 (7th Cir. 2015). In
response to Thompson, the government and Mobley
filed a joint motion requesting a summary reversal and remand
for resentencing. The motion acknowledged that
Thompson required this action because the district
court had not justified the conditions 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 appellant's
sentence is VACATED, and the case is REMANDED to the district
court for resentencing in light of [Thompson]."
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 sentence
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 resentencing 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.
district court then expressed either its concern or its
confusion over the point of the new proceeding. It commented
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.
listing the conditions of supervised release, the court asked
Mobley directly whether he disagreed with any of them. In
response, Mobley indicated that he believed his sentence 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 sentence] should have been a
different category ... I'm not reconsidering that."
When the defendant asked for a further explanation for why
the court was not reconsidering his sentence as a whole, the
court explained, "I have no reason to reconsider 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
release." 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.
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 asserts that the court procedurally erred by
refusing to consider his mitigation evidence and by refusing
to allow him the opportunity to allocute. In the alternative,
Mobley requests that this court correct the apparent
typographical error in his sentence. 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 event, it says, the district court did
consider Mobley's mitigation evidence and simply gave it
no weight. It agrees that the sentence should have been for
161 months and that this correction should be made.
along with several other decisions from this court in recent
years, represented a new and more serious approach toward
supervised release. The logic is straightforward: supervised
release is part of a criminal sentence; conditions must be
justified in roughly the same manner as a term of
imprisonment is, according to section 3583(c) (which
incorporates 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 district court must "state in open court
the reasons" for imposing those particular conditions.
Thompson, 777 F.3d at 373 (internal quotation marks
omitted) (quoting 18 U.S.C. § 3553(c)). Finally, 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.
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" imposition of conditions that may be vague
or irrelevant to the defendant. Id. at 376-77. Since
Thompson, we have issued numerous remands requiring
that district courts resentence defendants in light of its
instructions. See, e.g., United States v. Coleman,806 F.3d 941, 956 (7th Cir. ...