United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 22, 2012

Decided August 1, 2012

Before

   FRANK H. EASTERBROOK, Chief Judge

                 ANN CLAIRE WILLIAMS, Circuit Judge

                                     JOHN DANIEL TINDER, Circuit Judge

Nos. 11-2360 & 11-2391

UNITED STATES OF AMERICA,

                                 Plaintiff‐Appellee,

v.

THOMAS ROSS and GERALD

PITTMAN,

                    Defendants‐Appellants.

Appeals from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 1:99‐cr‐00469

Robert W. Gettleman,

Judge.

O R D E R

Thomas Ross and Gerald Pittman were convicted on drug and firearm offenses for their

involvement in a large drug distribution conspiracy. We have twice heard their appeals and

remanded for resentencing. The defendants now challenge their most recent sentences of 360

months. They argue that the district court should have reduced their sentences in light of the

arguments they advanced in mitigation, particularly that they would have pleaded guilty but for the

unconstitutionally mandatory sentencing guidelines pre-Booker. Because the defendants could have

previously raised their arguments in mitigation but failed to do so, their arguments are waived. And

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 11‐2360 & 11‐2391 Page 2

since the district court correctly followed our instructions for a limited remand, we affirm.

I. BACKGROUND

In 2001, Ross and Pittman were convicted for their roles in a large drug distribution

conspiracy involving the trafficking of marijuana, powder cocaine, and crack cocaine in Chicago. 

Both received life sentences under the mandatory sentencing guidelines in place at the time. We

affirmed their convictions in United States v. Medina, 430 F.3d 869 (7th Cir. 2005), but remanded

for resentencing in light of the Supreme Court’s intervening decision in United States v. Booker, 543

U.S. 220 (2005), which held that the sentencing guidelines are advisory. Id. at 259.

The district court resentenced the defendants in 2008. Ross and Pittman sought belowguideline sentences of 300 months, presenting in mitigation arguments of difficult childhood

environments and overstated criminal histories. The district court imposed 360-month sentences

on both defendants. Ross and Pittman appealed and we granted a limited remand in light of

Kimbrough v. United States, 552 U.S. 85 (2007). In Kimbrough, the Supreme Court clarified that

courts may deviate from the 100-to-1 sentencing disparity between crack and powder cocaine

offenses. Id. at 110. In our remand order, we stated, “[W]e’re not sure the judge appreciated the

wiggle room Kimbrough provides, and we believe a remand is warranted on this limited issue.” 

United States v. Ross, 375 F. App’x 595, 596 (7th Cir. 2010) (unpublished). The order also included

a footnote which called into question the mandatory nature of the career offender guideline given

recent developments in our case law. Id. at 596 n.1. Finally, we made clear that we did “not,

however, believe that a full-blown do-over of the proceedings, with defendants physically produced

in Chicago, is necessary to fairly wrap up this case.” Id. at 596.

On May 20, 2011, the district court sentenced Ross and Pittman for the third time. The court

applied a one-to-one crack to powder ratio, completely eliminating the sentencing disparity, and it

reconsidered each defendant’s career offender status. Pittman’s new Presentence Investigation

Report (“PSR”), which the court requested after the second remand, suggested a guideline range of

360 months to life in prison. Defense counsel argued for a below-guideline sentence of 235 months

given Pittman’s post-conviction rehabilitation. The district court sentenced Pittman to 360 months

because of his violent and consistent criminal history. The court noted, “[I]f anybody does [qualify

as a career offender], it’s Mr. Pittman.” 

Ross’s new PSR also suggested a guideline range of 360 months to life in prison. Ross’s

counsel argued for a below-guideline sentence of between 20 and 25 years in part because Ross’s

criminal history was overstated and he would have pleaded guilty in 2001 if the guidelines had not

been unconstitutionally mandatory. The district court stated that “even though . . . the career

offender guidelines might be inappropriate in some cases, they’re simply not inappropriate [here]”

given Ross’s leadership role in the conspiracy and his history of violent crimes. The court

resentenced Ross to 360 months.

On May 25, 2011, Ross and Pittman moved the district court for reconsideration, arguing that

their arguments in mitigation were overlooked. The court denied their motions. Ross and Pittman

now appeal.
No. 11‐2360 & 11‐2391 Page 3

II. ANALYSIS

We address first whether the district court properly followed our previous remand order. We

review de novo the district court’s determination of the scope of the remand. United States v.

Husband, 312 F.3d 247, 251 (7th Cir. 2002); United States v. Barnes, 660 F.3d 1000, 1006 (7th Cir.

2011). “If this Court remands to correct a ‘discrete, particular error that can be corrected . . . without

. . . a redetermination of other issues, the district court is limited to correcting that error.’” Barnes,

660 F.3d at 1006 (quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)). And “any

issue that could have been raised on appeal but was not is waived and, therefore, not remanded.” 

Id. (citing Husband, 312 F.3d at 250-251); see also United States v. Morris, 259 F.3d 894, 898 (7th

Cir. 2001) (“[P]arties cannot use the accident of remand as an opportunity to reopen waived

issues.”). 

The remand order we issued instructed the district court to consider the “limited issue” of

the “wiggle room Kimbrough provides” for departure from the then-existing sentencing disparity

between crack and powder cocaine. Ross, 375 F. App’x at 596. We also highlighted, in a footnote,

that our decision in United States v. Millbrook, 553 F.3d 1057 (7th Cir. 2009), was overruled by

United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc) (holding that a district court is

entitled to disagree with the career offender guideline). 

 The district court correctly followed our remand order. The court chose to apply a one-toone ratio, completely eliminating the crack-cocaine sentencing disparity. It also reconsidered Ross’s

and Pittman’s career offender status, and stated on the record that their violent and consistent

criminal histories supported the designation. This is precisely what we instructed the court to do.

The defendants claim that their sentences are substantively unreasonable and that the district

court committed procedural error during resentencing. These arguments are without merit. The

360-month sentences are the lowest possible within the defendants’ guideline ranges. As such, they

are presumptively reasonable and are owed deference. United States v. Leiskunas, 656 F.3d 732, 737

(7th Cir. 2011) (“A within-guidelines sentence is presumed reasonable on appeal, and a lowest

possible within-guidelines sentence will almost never be unreasonable.” (citation omitted)). Nothing

in the record suggests that the district court abused its discretion or committed procedural error in

sentencing Ross and Pittman. On the contrary, viewed as a whole, the sentencing transcript shows

that the district court considered each of the defendants’ arguments in mitigation, including their

claim that they would have pleaded guilty in 2001 if the life sentence called for by the guidelines

had not been mandatory at the time. The court nevertheless found that the defendants’ criminal

histories outweighed the mitigating evidence and correctly refused to engage in a counterfactual

inquiry of what might have been had the guidelines been advisory. See Sent’g Tr. 7-10, 17-19, 31.

The defendants waived their other arguments in mitigation by failing to raise them in their

2008 appeals. See Barnes, 660 F.3d at 1006; see also Parker, 101 F.3d at 528. If the defendants

disagreed with the scope of our 2010 remand order, the appropriate course to resolve that

disagreement was to file a timely petition for a rehearing, a petition for rehearing en banc, or a

petition for writ of certiorari. The defendants did not pursue any of those options. Consequently,

the district court was limited to considering the narrow issue presented in our remand order. It did

so without error.
No. 11‐2360 & 11‐2391 Page 4

III. CONCLUSION

For the reasons stated above, the defendants’ sentences are AFFIRMED.