### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

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U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

D AVID M OBLEY , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division

.

No. 12 CR 161

— Elaine E. Bucklo
, Judge

.

____________________
A RGUED M AY 19, 2016

— D ECIDED A UGUST 15 , 2016

____________________

Before W OOD , Chief J udge , and P OSNER and R OVNER , Circuit Judges

. W OOD , 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.3d2 No. 15

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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 vaca te his sentence and remand for him to receive what we hope will be his final sentencing hearing.
IIn 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 2 013. At his first sentencing hearing, the district court imposed a within

- guidelines 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 fi ve

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 wi th them with no further explanation. Mobley f iled 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 , t he government and Mobley filed a jointmotion 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 refer ence to the factors identified in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(c). Wegranted 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 [ Thompso n ].”No. 15

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The district court held a second sentencing hearing in June 2015. Prior to the second sentencing hearing, the governmentfiled 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 we re recommended in the pre

- sentence report. The district court then expressed either its concern or itsconfusion over the point of the new proceeding. It commented that because Mobley had no substantive objection to the conditions of supervised release , t he 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 appropri ate. 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, th e court imposed the conditions of supervised release and explain ed the justification for each one

. After listing the conditions of supervised release, the court asked Mobley directly whether he disagreed with any of4 No. 15

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them. In res ponse, 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 “j ust says [remand] on the Thompson factors. ... [T]o the extent that you’re disagreeing with theconditions of supervised release on the ground that [the sentence] should have been a different category ... I’m not reconsidering that.” When the defendant asked f or 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 anyparts 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 ap peals. Mobley argues that because the district court flatly refused to reconsider any portion of his sentence, it did not conduct a full re sentencing as required by Thompson . Specifically, he asserts that the court procedurally erred by refusing to conside r his mitigation evidence and by refusing to allow him the opportunity to allocut e

. 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 c onditions 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 evid ence or to give him the opportunity for allocution. In anyNo. 15

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event, it says, the district court d id consid er Mobley’s mitigation evidence and simply gave it no weight. It agrees that thesentence should have been for 161 months and that this correction shoul d be made.
II Thompson , along with several other decisions from thiscourt 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. B ecause theconditions 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 o mitted) (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 sentencin g 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 tai lored 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 i ssued nu-6 No. 15

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merous 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. 2015); United States v. Downs , 784 F.3d 1180, 1182 (7th Cir. 2015); United States v. Stanford , 806 F.3d 954, 967 (7th Cir. 2015).

W e have not , however, been as clear as we might be on what that resentencing must entail. At the time of Mobley’s second sentencing, for example, we had only just issued United States v. Kappes , 782 F.3d 828 (7t h Cir. 2015), where we discussed Thompson at length. The present case offers anotheropportunity to clarify what is necessary, and what is desirable. It presents three separate questions: f irst, whether a remand “in light of Thompson ” is a full remand or a remand limited to issues relating to supervised release ; s econd , if it is afull remand, what a district court must do at that full resentencing ; a nd third , whether the district court here did what was necessary. A
A remand “ in light of Thompson ” is a remand that vacates the entire sentence and requires full resentencing, unless the opinion and mandate specify otherwise. Under 28 U.S.C. § 2106, we may issue a general remand or a limited remand. Because a criminal sentence is normally a package tha t includes several component parts ( term of imprisonment, fine, restitution, special assessment, supervised release), when one part of the package is disturbed, we prefer to give the district court the opportunity to reconsider the sentence as a whole so

a s to “effectuate its sentencing intent.” Pepper v. United States , 562 U.S. 476, 507 (2011). Vacating the sentence and returning the case to the district court for imposition of a new sentence allow s the district court to “reconfigure the sentencing plan”No. 15

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s o as to “satisfy the se ntencing factors in 18 U.S.C. § 3553(a).” Id. (int ernal quotation marks omitted); see also Un it ed States v. Barnes , 660 F.3d 1000, 1007 (7th Cir. 2011) (explaining that a full resentencing allows the district court to “unbundle the

s entencing package”).
As we stated in Kappes , this reasoning applies to remands based on the c onditions of supervised release just as much as it applies to sentences that are vacated because one count is reversed, or there is a problem with a Guidelines com putation. “C omplete resentencing” is appropriate because “custodial and supervised release portions of a sentence serve somewhat ... overlapping purposes[, and thus] there might properly be an interplay between prison time and the term and conditions of supe rvised release.” 782 F.3d at 866

– 67. We therefore take this opportunity to clarify that when we issue an order vacating and remanding a sentence based on Thompson , it is a ful l remand unless otherwise noted in the opinion and the formal mandate.

B Next, we consider what a full remand under Thompson (which occurs when the mandate shows that the sentence was vacated) enable s, and require s , the district court to do. In thecourse of imposing a new sentence, the district court is authorized to reconside r all elements of the sentence , including in particular the prison term and the conditions of supervised release . It may consider any relevant evidence or arguments that are properly admissible at the new hearing. While the district court is not required t o consider new arguments or evidence about the term of imprisonment (or any other element of the sentence), it must exercise its discretion in declining to do so

— that is, it is required to acknowledge that it has8 No. 15

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this power and explain why or why not it wi shes to exercise it

. United States v. Booker , 543 U.S. 220 (2005), provides the proper analogy. Booker modified the Sentencing G uidelines , changing them from mandatory to true guidance. But they provide a point of reference in all cases, and the district c ourt may, if it wishes, impo se a within

- guidelines sentence even though it is not required to do so. Booker , 543 U.S. at 226. A district court commits significant procedural error if it “treat[s] the Guidelines as mandatory.” Gall v. United States , 552 U.S. 38, 51 (2007). In other words, if a district court did not know that it had the discretion to choose a non

- guidelines sentence, it could n ot have exercised its discretion when imp osing its sentence, and thus the sentence would be procedurally im proper even if that same sentence would be substantively reasonable had it been imposed in the proper manner. Cf. Nelson v. United States , 555 U.S. 350, 352 (2009) (sentencing court may not presume that within

- sentence guidelines is reasonable); Rita v. Un ited States , 551 U.S. 338, 351 (2007) (same). Likewise, a Thompson remand gives a district court the power to hear new evidence or arguments (or reconsider the same evidence and arguments) as it fashions the new sentence. The defendant need not have raise d these argumentson appeal; once the case is remanded for a complete resentencing, the defendant m a y assert any argument she wishes. The district court may cho o se to exercise its discretion in a

manner that does not consider any new evidence or new argume nts (or any old evidence or old arguments), and it may choose to impose the exact same sentence as was imposed at the original sentencing hearing. The new evidence may be cumulative of evidence already in the record; it may be too unreliable to be admissib le; or there may be other sound reasons for rejecting it. But the court must acknowledge that it has t heNo. 15

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authority to hear new arguments , so that we will know on appeal that it exercised its discretion in either accepting or rejecting new material. Cf. Rit a , 551 U.S. at 351. Since the posture of the case on a full remand is just as ifsentence has not yet been pronounced, a full remand does require the district court to provide the defendant an opportunity for allocution. Federal Rule of Criminal Procedure 32 (i)(4)(A)(ii) states “[b]efore imposing sentence, the court
must

... address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” As we explained in United States v. Barnes , this right of a defendant to speak on her own behalf

— known as allocution

— attaches when “the scope of the punishment is not preordained.” 948 F.2d 325, 329 (7th Cir. 1991) ; see also Green v. United States , 365 U.S. 301, 304 (1961) (holding defendant’s right to speak i s personal, and not satisfied by defense counsel having the opportunity to speak). When we vacate a sentence and order a full remand, the defendant has a “clean slate”

— that is, there is no sentence until the district court imposes a new one. Barnes , 948 F. 3d at 330. Thus, when the district court conducts a new sentencing pursuant to a Thompson remand , the defendant’s “right to personally address the sentencing judge [is] resuscitated” regardless of whether she had this opportunity at any prior sentencing he aring

. Id. Finally, a full remand does not require the district court to rehear all ( or any ) of the evidence that it heard at the original sentencing hearing. As defense counsel acknowledged at oral argument, the record that was compiled during a prior s entencing hearing is still valid, and the district court at a later sentencing hearing may continue to rely on it. Nothing in the10 No. 15

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nature of vacating a sentence or remanding for a new sentencing hearing in light of Thompson erases that record.

C Last, we must apply these principles to Mobley’s case. We review a district court’s determination of the scope of remand de novo. United States v. Purham , 795 F.3d 761, 764 (7th Cir. 2015). Based on the transcript before us, it appears that the
court was u nder the misapprehension that the remand was limited to the conditions of supervised release. That amounted to a mistake of law, which must be corrected. The transcript of the second sentencing hearing leaves us with the distinct impression that the court believed that it had no discretion to hear new arguments (including ones not raised at any earlier stage ), to hear new mitigation evidence, and to reconsider arguments made in an earlier sentencing hearing

.Nor did the court give Mobley an opportunity for allocution

— something we have just said that it was required to do. See Barnes , 948 F.2d at 329. The twist here is that Mobley did not object to this misstep. Ordinarily, we would review only for plain error

. United States v. Noel , 581 F.2d 490, 502

– 03 (7th Cir. 2009). For an error to be plain, it must be both obvious and have affected Mobley’s substantial rights

. United States v. Olano , 507 U.S. 725, 732 (1993). T he error here was obvious given Barnes

. We need not say whether this would be enough, by itself, to require a remand. Because we are sending the case back for a full resentencing , th e district court need only ensure that he has this opportunity at the proper time in the new hearing.No. 15

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Finally, th e district court appears to have made a clericalerror in entering the sentence. It stated that it wished to impose the same term of imprisonment as it had done previously , 161 months , but entered 171 months

. In light of the remand, we need do nothing abou t this either. There is no reason to expect any typographical errors the next time around.
III
Because we cannot be sure from the record before us thatMobley’s second sentencing hearing comported with the requirements we have outlined here, we V ACATE his sentence and R EMAND for a complete resentencing hearing consistent with this opinion

.