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United States v. Mobley

United States Court of Appeals, Seventh Circuit

August 15, 2016

United States of America, Plaintiff-Appellee,
David Mobley, Defendant-Appellant.

          Argued May 19, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CR161 - Elaine E. Bucklo, Judge.

          Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

          WOOD, Chief Judge.

         David 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.


         In 2012 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.

         Before 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]."

         The 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.

         The 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.

         After 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.

         Mobley 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.


         Thompson, 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.

         The 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. ...

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