United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2015 Decided January 12, 2016

No. 14-3046

UNITED STATES OF AMERICA,

APPELLEE

v.

STEPHEN C. HUNTER,

APPELLANT

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, Attorney, were with him on 
2

brief. Elizabeth Trosman, Assistant United States Attorney, 

entered an appearance.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Stephen

Hunter, Allan Tanguay and Danny True (appellants) were 

convicted of mail fraud and conspiracy to defraud the United 

States in violation of 18 U.S.C. §§ 371, 1341, 1342. They all

received sentences below the applicable range of the United 

States Sentencing Guidelines (Guidelines). In 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 appellants were his employees. The 

three appellants were sentenced to 120 months’ imprisonment

on the mail fraud charges and 60 months’ imprisonment for 

conspiracy, to run concurrently. Kahn received concurrent 

terms of 240 and 60 months, respectively.

Kahn’s total offense level was 42. His base offense level 

was 7, U.S.S.G. § 2B1.1(a) (2010), and he received a 22-point 

enhancement for an intended loss amount over $20 million. 

Id. § 2B1.1(b)(1)(L). In addition, he received a 3-point 
3

official victim enhancement, id. § 3A1.2, a 4-point 

enhancement as the leader of a criminal activity involving 

five or more participants, id. § 3B1.1(a), and a 2-point 

enhancement 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) use of sophisticated means, id. 

§ 2B1.1(b)(9). Finally, Kahn’s criminal history category of 2

combined with the 42 point offense level produced an 

advisory sentencing range of 360 months to life 

imprisonment. See id. ch. 5 pt. A (table). Because the 

statutory maximum for mail fraud is 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 concurrently. 

The Guidelines 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. 

The 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, id. § 3C1.1. 

All three appellants had a criminal history category of 1, 

which, together with their 43-point offense level, resulted in a 

Guidelines range of life imprisonment. See id. ch. 5 pt. A 

(table). 

Although 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 60 
4

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, the 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 sentences remained below this range,

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

554 F. App’x at 6, in part because the government had not 

pursued a timely harmless-error argument. Id. at 11–12.

On remand, the district court requested briefing on 

whether the managerial enhancement could still apply, 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

sentences based on (1) a Guidelines range that still exceeded

 

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

fine—the statutory minimum. He entered stays on the collection 

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 that 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 the 

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. 

Before concluding the sentencing hearing, the judge 

asked whether there were “any additional 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 requests, the judge again asked: “Any 

other matters 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 sentencing and insufficiently factoring 
6

in the vacated managerial enhancement. They also challenge 

their sentences as procedurally unreasonable, claiming the 

district court failed to address their rehabilitation arguments 

and inadequately explained the sentences.

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 

substantively 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, see 

Hunter, 554 F. App’x. at 10 (“[A]ppellants challenge the 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 their total offense level . . . . [Their] arguments are 

meritless.”), and law of the case bars its reconsideration. 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 improperly 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 of 
7

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 

instructions is a legal question we review de novo. See id. at 

42–44; United 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, 1034 (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 FED. R. CRIM. 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 FED. R. CRIM. 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 original 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. PLAIN ERROR

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, 

the “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 FED R. CRIM. 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 

imposed as I have just indicated” and counsel responded 

“[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 review. Id.

Here the judge used a similar prompt after imposing the 

sentences. See Resentencing 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; Resentencing 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 to 
9

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, the 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 findings of fact and conclusions of 

law.”); see also United States v. Campbell, 473 F.3d 1345, 

1348 (11th Cir. 2007) (merely inquiring “anything further?” 

or “anything else?” does 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 concluded that FED. R. CRIM. 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 simply, “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. 

Although not required for a district court to provide an 

opportunity to object, we 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 on 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 appeal 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 been 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 lengthy appeal 

and resentencing.” Id. And objecting to the sentence after 

imposition is neither pointless nor “formulaic,” see 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 

appellants were given a fair opportunity to object, 

Resentencing 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. AUTHORITY ON REMAND

As noted earlier, on remand for resentencing the 

sentencing judge may ordinarily consider 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 appeals’ decision . . . [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

First, 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 not. In fact, the 

government affirmatively noted at resentencing that the 

appellants faced an “advisory guideline[s] range at a level 40” 

with a sentencing range of “292 to 365 months.” 

Resentencing 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 Count’ that ‘carried no 

independent weight.’ ” (quoting resentencing transcript)), we 

do not require needless recitation, especially where—as 

here—the sentencing judge’s conclusion is plain from the 

record. The appellants’ original Guidelines range produced 

an advisory sentence of life imprisonment but they received 

only 120-month prison terms. We find it obvious—and 

eminently reasonable—that the judge concluded that a 

Guidelines range that, even on the low end, nevertheless

exceeded the appellants’ sentences by nearly 250%, meant 

that the managerial enhancement “carried no independent 

weight.” Id. at 42. 

Indeed, we 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 presented 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 recognized that the Guidelines did not drive

their sentences. See Resentencing Tr. 21 (“[R]ealistically 

from a guidelines point of view, nothing has changed that 
13

much in terms of the ultimate [sentence], but this was never 

really a guideline case.”). 

The appellants also contend that the sentencing 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”), we 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 was plainly a reason 

to reevaluate the seriousness of the offense and was a “fact[] 

that did not exist at the time of the original sentencing.”

Blackson, 709 F.3d at 40. 

C. PROCEDURAL REASONABLENESS

Finally, the appellants maintain that their 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

reimposition of the original sentences.

The thrust of their argument is, and can only be, that the 

sentencing judge failed to adequately explain why their postsentencing rehabilitation did not affect their sentences. 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 the 
14

original sentencing”). If the sentencing judge adequately 

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 resentencing court’s 

authority to consider rehabilitation in permissive language, id. 

“(authoriz[ation] to consider facts that did not exist at the time 

of the original sentencing”), the district court’s exercise of 

that authority was, in this instance, mandatory. We require 

that a sentencing judge consider all non-frivolous reasons 

asserted for an alternative sentence and post-sentencing 

rehabilitation is, at least here, non-frivolous. See 18 U.S.C. 

§ 3553(c); Locke, 664 F.3d at 357 (section 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. 476, 491–92 (2011) (postsentencing 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

credited likely rehabilitation 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 family 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 four 
15

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 convictions 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 consideration 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. App’x 8, 12 (6th Cir. 2010) (post-sentencing 

rehabilitation “inadequate to justify a lesser sentence” given 

that defendant’s record “require[d] a significant period of 

incarceration”); United States v. Rich, 577 F. App’x 234, 236 

(4th Cir. 2014) (“nature and circumstances of [defendant’s] 

offense” outweigh post-sentencing rehabilitation). 

For the foregoing reasons, the judgment of the district 

court is affirmed. 

So ordered.