In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2255

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID MOBLEY,

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.

____________________

ARGUED MAY 19, 2016 — DECIDED AUGUST 15, 2016

____________________

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 
2 No. 15-2255

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.

I

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-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 fiveyear term of supervised release for the bank fraud, and a oneyear 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].”
No. 15-2255 3

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 
4 No. 15-2255

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 
No. 15-2255 5

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. 

II

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 nu-
6 No. 15-2255

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).

We 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 (7th Cir. 2015), where we 

discussed Thompson at length. The present case offers another 

opportunity to clarify what is necessary, and what is desirable. It presents three separate questions: first, whether a remand “in light of Thompson” is a full remand or a remand limited to issues relating to supervised release; second, if it is a 

full remand, what a district court must do at that full resentencing; and 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 that 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 

as 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 

allows the district court to “reconfigure the sentencing plan” 
No. 15-2255 7

so as to “satisfy the sentencing factors in 18 U.S.C. § 3553(a).” 

Id. (internal quotation marks omitted); see also United States 

v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011) (explaining that a 

full resentencing allows the district court to “unbundle the 

sentencing package”).

As we stated in Kappes, this reasoning applies to remands 

based on the conditions 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 computation. “Complete 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 supervised 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 full 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) enables, and requires, the district court to do. In the 

course of imposing a new sentence, the district court is authorized to reconsider 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 to 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 has 
8 No. 15-2255

this power and explain why or why not it wishes to exercise 

it. United States v. Booker, 543 U.S. 220 (2005), provides the 

proper analogy. Booker modified the Sentencing Guidelines, 

changing them from mandatory to true guidance. But they 

provide a point of reference in all cases, and the district court 

may, if it wishes, impose 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 not have exercised its discretion when imposing its sentence, and thus the sentence would be procedurally improper 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. United 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 raised these arguments 

on appeal; once the case is remanded for a complete resentencing, the defendant may assert any argument she wishes. 

The district court may choose to exercise its discretion in a 

manner that does not consider any new evidence or new arguments (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 admissible; or there may be other sound reasons 

for rejecting it. But the court must acknowledge that it has the
No. 15-2255 9

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. Rita, 551 U.S. at 351.

Since the posture of the case on a full remand is just as if 

sentence 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 is 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 

hearing. 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 sentencing hearing is still valid, and the district court at a later 

sentencing hearing may continue to rely on it. Nothing in the 
10 No. 15-2255

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 under 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). The 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, the district court need only ensure 

that he has this opportunity at the proper time in the new 

hearing. 
No. 15-2255 11

Finally, the district court appears to have made a clerical 

error 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 about 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 that 

Mobley’s second sentencing hearing comported with the requirements we have outlined here, we VACATE his sentence 

and REMAND for a complete resentencing hearing consistent 

with this opinion.