# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2015 Decided January 12 , 2016

No. 14

- 3046

U NITED S TATES OF A MERICA , A PPELLEE

v.

S TEPHEN C. H UNTER , A PPELLANT

Consolidated with 14

- 3047, 14

- 3048

Appeals from the United States District Court for the District of Columbia (No. 1:08

- cr

- 00271

- 2) (No. 1:08

- cr

- 00271

- 5) (No. 1:08

- cr

- 00271

- 3)

Mary E. Davis , appointed by the court, argued the cause for the appellant. Paul S. Rosenzweig and Edward C. Sussman

, appointed by the court, were with her on brief.

Mark S. Determan , Attorney, United States Department of Justice, argued the cause for the appellee. Vincent H. Cohen

, Jr ., Acting United States Attorney, Frank P. Cihlar

, Chief

, and Gregory Victor Davis , A ttorney
, were with him on2

brief. Elizabeth Trosman , Assistant United States Attorney, entered an appearance.

Before: H ENDERSON , R OGERS and T ATEL , Circuit Judges

. Opinion for the Court filed by Circuit Judge H ENDERSON

.

K AREN L E C RAFT H ENDERSON , Circuit Judge : Stephen Hunter, Allan Tanguay and Danny True ( appellants) were convicted of mail fraud and conspiracy to defraud the United States in vio lation of 18 U.S.C. §§ 371, 1341 , 1342. They all received sent ences below the applicable range of the United S tates Sentencing Guidelines (Guidelines)

. I n an earlier appeal , we held that the district court improperly applied a three

- level upward adjustment computed under the Guidelines and remanded for resentencing

. United States v. Hunter , 554 F. App’x 5, 11 (D .C. Cir. 2014). On remand the district court imposed the same sentences . The appellants now argue that the district court exceeded its authority on remand and that the sentences were procedurally infirm . We disagree and affirm.

I.

The appellants , along with Eddie Ray Kahn, operated an organization known as American Rights Litigators that promoted and sold tax defiance schemes. Kahn was the ringleader and the three appellant s were his employees. The three appellants were sentenced to 120 months ’ impriso nment on the mail fraud charges and 60 months ’ imprisonment for conspiracy , to run concurrently

. Kahn received concurrent terms of 240 and 60 months , respectively.

K ahn’s total offense level was 42. His base offense level

was 7 , U.S. S.G. § 2B 1 .1(a) (2010)

, and he received a 22

- point enhancement for an inten ded loss amount over $ 20 million. Id. § 2B1.1(b)(1)(L ). In addition, he received a 3

- point3

o fficial victim enhancement, id. § 3A1.2, a 4

- point enhancement as the leader of a criminal activity involving fiv e or more participants

, id. § 3B1.1(a), and a 2

- point enhance ment for each of: (1) misrepresentation of a religious organization in violation of an injunction, id. § 2B1.1(b)(8), (2) commission of a crime through mass marketing

, id. § 2B1.1(b )(2), and (3) u se of sophisticated means, i d. § 2B1.1(b)(9). Finally, Kahn’s criminal history category of 2 combined with the 42 point offense level produced a n advisory sentencing range of 360 months to life imprisonment. See id. ch. 5 pt. A (table)

. B ecause the

s tatutory maximum for mail fraud i s 20 years, 18 U.S.C. § 1341, he was sentenced to the shorter 240

- month term of imprisonment

. The conspiracy count, 18 U.S.C. § 371, carried a maximum of five years, which the court ordered to

run con currently.

The Guideline s range was similar for the appellants

. The base offense level (7), intended loss enhancement (22)

, mass marketing (2), misrepresentation (2), sophistication (2) and official victim (3) enhancements were the same as for Kahn

. T he appellants were all given a 3

- point enhancement as “manager(s) or supervisor(s)” of a criminal enterprise, U.S. S.G. § 3B1.1(b) (2010) , and a 2

- point enhancement that Kahn did not receive for obstruction of justice, i d. § 3C1.1

. All three appellants had a criminal history category of 1

, whi ch, together with their 43

- point o ffense level, resulted in a Guidelines range of life imprisonment. See id. ch. 5 pt. A (table).

Alt hough the statutory cap for mail fraud reduced the maximum sentence to 20 years, the district judge varied further downward and imposed 120

- month sentences, with 604

months for conspiracy to run concurrently. 1 The judge viewed the appellants more favorably than he did Kahn because

, “despite their professions of continuing to adhere to whether or not their contact [sic] was lawful, they have no question suffered, and their families have suffered.” Sentencing Tr. 115. He also observed that the downward variance was warranted because they “were good family men, religious men who lived good lives

. ” Id. at 116.

In their first appeal

, the appellants challenged

, inter alia

, the 3

- point managerial enhancement and we vacated it because “ the government

. . . failed to carry its burden of showing that the three

- level enhancement

. . . applie[d]

. ” Hunter

, 554 F. App’x. at 11. With the three

- point managerial enhancement excised , t he adjusted offense level of 40

— coupled with a criminal history category of 1

— resulted in a Guidelines range of 292

– 365 months ’ imprisonment

. See U.S. S.G. ch. 5 pt. A (table) (2010)

. Notwithstanding the appellants’ 120

- month sentence s remained below this range

, we “remanded to the district court for resentencing,” Hunter

, 554 F. App’x at 6, in part bec ause the government had not p ursue d a timely harmless

- error argument. Id. at 11

– 12.

On remand , the district court requested briefing on whether the managerial enhancement could still ap ply

, and the government conceded that it did not based on law of the

case

. See Mem. Regarding Scope of Resentencing; United States v. Leonzo , 50 F.3d 1086, 1088 (D.C. Cir. 1995) (government ordinarily “should [not] get a second bite at the apple”). It nonetheless sought reimposition of the 120

- month
sentence s based on (1) a G uid elines range that still exceed ed

1 The judge also ordered each appellant to pay a $25,000 fine

— the statutory minimum. He entered stays on the col lection thereof from all three appellants

.5
10 years, (2) the court’s previous consideration of their good character that had already resulted in a downward variance and (3) subsequent criminal convictions of the appellants’ former clients

— the “legacy of the seeds th at the [ appellants] planted. ” Resentencing Tr. 9. In particular, the government alleged that the appellants ’ scheme resulted in thirteen subsequent tax

- related convictions of their former clients, eight of which required jury trials.

All three appellants argued that they had been rehabilitated since their original sentencing

. Although th e judge “recognize[d]

. . . how much [the appellants] ha[d] strived to do the right thing during [ their ] period of incarceration

. . . that’s what [he] expected of all three” from the beginning. Id. at 32

– 33. He also noted that he had not “valued sufficiently the serious nature of the offense

. . . committed” and that “the consequence to the tax system and to all the people that relied on the information that [ the appellants] were providing [wa]s such that [he could not] go down further and really justify

. . . the sentencing role of the Court.” Id. at 33.

Befo re concluding the sentencing hearing, the judge asked whe ther there were “any additio nal questions from any of the [ appellants]

, ” in response to which inquiry Tanguay’s lawyer requested a continued stay on the collection of fines

, see supra n.1, and an expedition of paperwork for the appellants to “go back to the institution.” Resentencing Tr. 36. After granting both request s , the judge again asked: “Any other mat ters the defense wants to raise ” to which there was
no response. Id. at 37.

The appellants now appeal, contending that the district
court exceeded its authority on remand by reconsidering facts known at the original sent encing and in sufficiently factoring6

in the vacated managerial enhancement. They also challenge their sentences as procedurally unreasonable, claiming the distr ict court failed to address their rehabilitation arguments and inadequately explained the sentence s

. 2

II.

Barring our “express instructions” to the contrary

, the district court has limited authority at resentencing and may take into account only a narrow range of circumstances

. See United States v. Blackson , 709 F.3d 36, 40 (D.C. Cir. 2013). In short

, the district court “generally does not have authority to resentence a defendant de novo .” Id. 3 Rather, on remand,

2 In addition, they contend that their sentences were sub stantively unreasonable because “the district court gave no consideration to any

. . . factor[s] raised by appellants. ” Appellants’ Br. 21. This argument simply recycles their procedural claims. They also urge that application of the loss enhancement was improper. We upheld the enhancement on the first appeal, s ee Hunter , 554 F. App’x. at 10 (“[A]ppellants challenge t he district court’s finding at sentencing that they are responsible for an intended loss of $42.7 million

. . . that corresponds to a 22

- level increase in thei r total offense level

. . . . [T heir] arguments are meritless.”), and law of the case bars its re consideration. See

, e.g. , United States v. Thomas , 572 F.3d 945, 948 (D.C. Cir. 2009).

3 We note vacatur of the appellants’ sentences, Hunter , 554 F. App’x at 6, does not constitute “express instructions” to conduct de

novo resentencing. Blackson , 709 F .3d at 40. It is plain from our Hunter opinion that only the managerial enhancement required remand. Hunter , 554 F. App’x at 11 (“The joint appellants’ most meritorious argument

— and the only one that requires us to remand

— is that the district court impro perly applied a three

- level [managerial enhancement].”). Vacatur is one way a district court, on remand, can reconfigure a sentencing plan, Blackson , 709 F.3d at 41, but does not, by itself, “permit[] [the court] to reconsider issues that were not in any way related to this court’s vacatur of7

it considers whether the vacated count (or here, enhancement) “affected the overall sentence and, if so

, [whether it] should reconsider the original sentence imposed,” it may hear “ new arguments or new facts as are made newly relevant by [our] decision

—

whether by the reasoning or by the result” and it may consider “facts that did not exist at the time of the original sentencing

, ” including “rehabilitation efforts that the defendant ha[s] undertaken since receiving [the] original sentence.” Id. 4 Whether the district court followed these instru ctions is a legal question we review de novo

. See i d. at 42

– 44; U nited States v. Day , 524 F.3d 1361, 1367 (D.C. Cir. 2008) ( de novo review of sentencing decision involving “[p]urely legal questions”). In contrast, we review procedural reasonableness for “abuse of discretion

. ” United States v. Wilson , 605 F.3d 985 , 103 4 (D.C. Cir. 2010). And “ where a defendant fails to raise a claim at his sentencing hearing

, ” we review for plain error only

. United States v. Locke , 664 F.3d 353, 357 (D.C. Cir. 2011); see also F ED

. R. C RIM

. P. 52(a).

the” count or enhancement. Id. (internal quotation marks omitted). Thus , there is no reason to “rely now upon the technical distinction between vacatur and remand

— to which we attached no apparent significance at the time [of the first appeal].” United States v. Whren , 111 F.3d 956, 959 (D.C. Cir. 1997).

4 We have also recognized two other narrow resentencing circumstances not relevant here. First, under F ED

. R. C RIM

. P

. 52(b), “ ‘ the resentencing court may consider even an issue raised belatedly’ if it constitutes plain error.” Blackson

, 709 F.3d at 40 n.2 (quoting Whren , 111 F.3d at 960 ) . Second, “ the resentencing court may consider arguments not raised at the origina l sentencing when the argument's relevance to the sentence was contingent on a circumstance that did not materialize at the original sentencing but that did come to pass by the time resentencing occurred, and where the defendant establishes good cause for not having raised the argument sooner .” Id.8

A. P LAIN E RROR

Although this appeal does not depend on the application of plain error review, we nonetheless believe it helpful to clarify Circuit law on this issue

. As we explained in Locke

, th e “more demanding plain error standard of review applies where a defendant fails to raise a claim at his sentencing hearing,” unless the defendant was given no opportunity to object. 664 F.3d at 357 ; see also F ED R. C RIM . P. 51(b) (“If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”). In Locke , after imposing sentence, the judge asked the parties if they “ know of any reason other than reasons already stated and argued why the sentence should not be im posed as I have just indicated ” and counsel respond ed “[n]othing else, [y]our Honor.” Locke , 664 F.3d at 357 (alteration in original). Based on this exchange, we concluded in Locke that it was “not a case in which the defendant was given no opportunity to object” and consequently applied plain error revi ew

. Id.

Here t he judge used a similar prompt after imposing the
sentences

. See Res entencing Tr. 36 (“Are there any additional questions from any of the [appellants]?”); id. at 37 (“Any other matters the defense wants to raise?”). The appellants nonetheless contend that they had no opportunity to object because “[f]rom the timing and context of the proceedings it is clear that the court’s questions dealt with matters other than the sentence

. ” Appellants’ Reply Br. 5

. The “timing and context of the proceedings

, ” however, were the same in Locke

— each judge had just imposed the sentences and explained his rationale. See Locke , 664 F.3d at 357; Res entencing Tr. 32

– 36. The appellants nonetheless
argue that “[t]he question in Locke was specific to the sentence.” Appellants’ Reply Br. 4. If the appellants mean to9

claim that the judge must explicitly refer to the “sentence” in his inquiry

, see Locke , 664 F.3d at 357, we emphasize that “[s]entencing

. . . is not a game of Simon Says.” See United States v. Brinson

- Scott , 714 F.3d 616, 626 (D.C. Cir. 2013). Once the court makes clear by timing (here, post

- imposition) or by express reference (as in Locke ) that the defendant’s opportunity to object is nigh, that is all that is required. See,
e.g. , United States v. Steele , 603 F.3d 803, 807 (10th Cir. 2010). Granted, t he Locke inquiry differed in that the judge asked whether the parties “kn[e]w of any reason other than reasons already stated and argued” for a different sentence, but that question is materially similar to the inquiry here

— albeit more formal. See Resentencing Tr. 36

– 37 (soliciting “any additional questions” and “[a]ny other matters”) (emphasis added).

Some of our sister circuits disagree and impose an affirmative burden on the sentencing judge to elicit objections

. See United States v. Bostic , 371 F.3d 865, 872 (6th Cir. 2004) (district court must “after pronouncing the defendant’s sentence . . . ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised ”); United States v. Jones , 899 F.2d 1097, 1102 (11th Cir. 1990) (“[D]istrict courts [must] elicit fully articulated objections, following imposition of sentence, to the court’s ultimate find ings of fact and conclu sions of law.”) ; see also United States v. Campbell , 473 F.3d 1345, 1348 (11th Cir. 2007) ( merely inquiring “anything further?”

or “anything els e?” do es not satisfy court’s duty )

. But see United States v. Flores

- Mejia , 759 F.3d 253, 258 n.8 (3d Cir. 2014) (en banc) (“[W]e encourage district courts at sentencing to inquire of counsel whether there are any objections to procedural matters. However . . . we will not make this a requirement that district judges must follow

. We believe that the burden of objecting to errors remains with the parties.”10
(internal citations omitted) ) ; United States v. Vanderwerfhorst , 576 F.3d 929, 934 (9th Cir. 2009) (“We have never adopted such a requirement and reject it here.”). Other courts have concl uded that F ED

. R. C RIM

. P. 51 “does not require a litigant to complain about a judicial choice after it has been made, ” United States v. Lynn , 592 F.3d 572, 578 (4th Cir. 2010) (internal quotation marks omitted) , and have declined to apply plain error review if the objections were apparent to the court before imposing sentence

. Id. at 578

– 79. 5

Other courts have concluded these purposes can be met only by seeking affirmative objections through careful prompts, see United States v. Batti , 631 F.3d 371, 379 n.2 (6th Cir. 2011) (asking “anything else concerning sentence?” insufficient)

. We believe that “ [c]ompetent professionals do not require such gratuitous superintendence

. . . .” Steele , 603 F.3d at 807. Put si mply, “as long as there is a fair opportunity to register an objection,” but the defendant does not do so, plain error review ordinarily applies. Id. “[C]ounsel must take the initiative” to ensure that “silence is not mistaken for acceptance.” Id.

Alt hough not required for a district court to provide an opportunity to object, w e believe Locke describes the best procedure for district judges to follow

— after sentencing the judge should ask if there are any objections to the sentence imposed not already o n the record

. See 664 F.3d at 357. It allows “the [sentencing] judge to immediately remedy omissions or clarify and supplement inadequate explanations.” Flores

- Mejia , 759 F.3d at 258

. The burden on

5 See also id. at 578 ( argument is preserved for appea l if raised in sentencing brief even if party fails to object when judge issues sentence without reference to argument).11

the sentencing court to ensure that the parties, especially the defendant, have be e n heard and that the record is complete for purposes of appeal “pales in comparison to the time and resources required to correct errors through a length y appeal and resentencing.” Id. And objec ting to the sentence after imposition is n either pointless n or “formulaic,” s ee Lynn , 592 F.3d at 578; “ rather

, a clear objection can enable a trial court to correct possible error in short order and without the need for an appeal .” United States v. Bennett , 698 F.3d 194, 199 (4th Cir. 2012); see also 9B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2472 (3d ed. 2014 ) (similar ).

Application of these principles here is simple; the appel l ants were given a fair opportunity to object

, Res entencing Tr. 36 (“ Are there any additional questions from any of the [appellants]?”), and they failed to do so. Thus, their claims may be properly reviewed for plain error.

B. A UTHORITY ON R EMAND

As noted earlier, on remand for resent encing the sentencing judge may ordinarily con sider only limited factors. In Blackson

, we explained that the factors include assessment of the vacatur’s effect on the vacated sentence, “new arguments or new facts as are made newly relevant by the court of appeal s ’ d ecision

. . . [and] facts that did not exist at the time of the original sentencing.” 709 F.3d at 40. The appellants contend that the sentencing judge failed to consider the effect the vacated enhancement had on the original
sentence and that he erred by reconsidering the seriousness of the offense

. “ [ U ] nder either standard of review,” United States v. Stanfield , 360 F.3d 1346, 1362 n.4 (D.C. Cir. 2004), whether plain error or de novo

, Day , 524 F.3d at 1367, their arguments fail.12

Fir st, it is plain that the sentencing judge properly considered the effect of the vacated managerial enhancement. He requested briefing on whether the enhancement could apply on remand notwithstanding the vacatur and the government conceded that it could no t. In fact, the government affirmatively noted at re sentencing that the appellants faced an “advisory guideline [ s ] range at a level 40” with a sentencing range of “ 29 2 to 365 months.” Res entencing Tr. 5. Although the district judge did not expressly state that the vacated enhancement carried “no independent weight,” cf. Blackson , 709 F.3d at 42 (“Unfortunately for Blackson, the court concluded that it ‘really was just an additional C ount’ that ‘carried no independent weight.’ ” (quoting resentencing t ranscript) ), we do not require needless recitation

, especially where

— as here

— the sentencing judge’s conclusion is plain from the record. The appellants’ original G uidelines range produced an advisor y sentence of life imprisonment but they received only 12 0

- month prison terms

. We find it obvious

— and eminently reasonable

— that the judge concluded that a Guidelines ra nge that, even on the low end, nev e r theless exceeded the appellants’ sentence s by nearly 250%, meant that the managerial enhancement “carried no independent weight

. ” Id. at 42.

Indeed, w e noted the potential irrelevance of the vacated enhancement in the first appeal but remanded in part because the government failed to raise a timely harmless error argument. Hunter , 554 F. App’x at 11 (“where, as here, the government has not timely pres ented a harmless

- error argument , we are reluctant to raise and resolve the issue sua sponte ”). What was not plain then is ineluctable now. Even the appellants recognize d that the Guidelines did not dri ve their sentence s

. See Res entencing Tr. 21 (“[R]ealistically from a guidelines point of view, nothing has changed that13
much in terms of the ultimate [sentence], but this was never really a guideline case.” ).

The appellants also contend that the sentenc ing judge erroneously reconsidered the facts of the offense when he stated: “[A]s I look back on the case four years later, I’m not sure that I valued sufficiently the serious nature of the offense you committed.” Sentencing Tr. 33. Applying Blackson

, 709 F.3d at 40 (district court “authorized to consider facts that did not exist at the time of the original sentencing”), w e read the
statement as a response to the government’s reliance on the thirteen ARL client convictions obtained after the appellants ’ incarceration. See Sentencing Tr. 33 (“[T]he consequence to the tax system and to all the people that relied on the information that you all were providing is such that I can’t go down further

. ” (emphasis added) )

. This wa s plainly a reason to reevaluat e the seriousness of the offense and was a “fact[] that did not exist at the time of the original sentencing. ” Blackson

, 7 09 F.3d at 40.

C. P ROCEDURAL R EASONABLENESS

Finally, the appellants maintain that the ir sentences were procedurally unreasonable. In particular, they contend that the district court failed to consider their post

- sentencing rehabilitation argument and did not adequately explain reim position of the original sentences.

The thrust of the ir argument is, and ca n only be, that the sentencing judge failed to adequately explain why the ir post

sentencing rehabilitation did not affect the ir sentence s

. This was the only argument they expressly made at resentencing in favor of a greater downward variance and it is one of the few categories of inquiry that Blackson permits a district court to consider at resentencing. 709 F.3d at 40 (post

- sentencing rehabilitation is fact “that d[oes] not exist at the time of the14
original sentencing”) . If the sentencing judge adequate ly explained why the rehabilitation argument did not persuade him to impose lighter sentences , then

— because they raise no other argument supporting a greater variance

— he a fortiori adequately explained the reimposition of the 120

- month prison terms.

Although Blackson couched the re sentencing court’s authority to consider rehabilitation in permissive language, i d

. “( authoriz[ation] to consider facts that did not exist at the time of the original sentencing”), the district court’s exercise of that autho rity was, in this instance, mandatory. We require that a sentencing judge consider all non

- frivolous reasons

asser ted for an alternative sentence and po st

- sentencing rehabilitation is, at least here, non

- frivolous

. See 18 U. S.C. § 3553(c); Locke , 664 F.3d at 357 (s ection 3553 “requires that the court provide a reasoned basis for its decision and consider all nonfrivolous reasons asserted for an alternative sentence” ( internal quotation marks omitted)); see also Pepper v. United States , 562 U.S. 4 76, 491

– 92 (2011) ( post

sentencing rehabilitation is ordinarily non

- frivolous )

. The sentencing judge adequately addressed the appellants’ post

- sentencing rehabilitation argument. He gave two reasons for rejecting their claim : first, he had already credi ted likely rehabilit ation during the original sentencing,

see Resentencing Tr. 32

– 33 (“I recognize the, [sic] how much you all have strived to do the right thing during your period of incarceration, and that’s what I expected of all three of you. I recognized at the time of your original sentencing the tremendous fa mily support you’ve had.”); Sentencing Tr. 115

– 16 (observing appellants had suffered and they were “good family men, religious men who lived good lives”); and , second, the seriousness of the offense

, Resentencing Tr. 33 (“But I have to say that as I look back on the case four15
years later, I’m not sure that I valued sufficiently the serious nature of the offense you committed.”).

As noted earlier, we interpret the sentencing judge’s emphasis on the serious nature of the offense to refer to the thirteen c onvictions that occurred after the three appellants

were incarcerated

— the ripple effect of their crimes, so to speak. Because Blackson permits the resentencing judge to consider facts that occur after the original sentencing, 709 F.3d at 40, the judge’s c onsideration of the ripple effect is a “reasoned basis” for reimposing the 120

- month prison terms even in light of post

- sentencing rehabilitation

. See Locke , 664 F.3d at 357. Our sister circuits are in accord

. See United States v. Perez , 564 F. App’ x 504, 507

– 08 (11th Cir. 2014) (upholding rejection of post

- sentence rehabilitation given “seriousness of [defendant’s] conduct”); United States v. Johnson , 407 F. Ap p’x 8, 12 (6th Cir. 2010) (post

- sentencing rehabilitation “inadequate to justify a lesser s entence” given that defendant’s record “require[d] a significant period of incarceration” ); United States v. Rich , 577 F. App’x 234, 236 (4th Cir. 20 14) (“nature and circumstances of [defendant’s] offense” outweigh post

- sentencing rehabilitation).

For t he foregoing reasons, the judgment of the district

c ourt is affirmed

.

So ordered.