* After an examination of the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the appeal is submitted on the briefs and the record. Fed. R.

App. P. 34(a)(2). This appeal has been submitted to the original panel in accordance with

Seventh Circuit Internal Operating Procedure 6(b). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 19, 2010 *

Decided November 22, 2010

Before

JOEL M. FLAUM, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 09

‐ 2381

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

PAUL E. PODHORN, JR.,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Southern District of Illinois

No. 3:03

‐ CR

‐ 30140

‐ 001

‐ MJR

Michael J. Reagan, Judge

. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 09

‐ 2381 Page 2

O R D E R

On December 8, 2008, this court handed down its decision in Paul E. Podhorn, Jr.’s,

appeal from his convictions for a variety of offenses, including making false statements in

violation of 18 U.S.C. § 1001(a)(2), selling stolen firearms in violation of 18 U.S.C. § 922(j),

selling firearms without maintaining proper records in violation of 18 U.S.C. § 922(b)(5),

and failing to maintain proper firearm records in violation of 18 U.S.C. § 922(m). United

States v. Podhorn, 549 F.3d 552 (7th Cir. 2008). We affirmed these convictions, but the

majority concluded that the district court erred in calculating Podhorn’s advisory

sentencing guideline range. In particular, we held that Podhorn should not have received an

enhancement under U.S.S.G. § 2K2.1(b)(4), which provides that in calculating offense level,

“if any firearm

. . . was stolen, increase by two levels.” The offense with which Podhorn was

charged, 18 U.S.C. § 922(j), already includes as an element the fact that the firearm specified

in the indictment was stolen; we reasoned that Application Note 9 to § 2K2.1(b)(4)

instructed the court not to impose the enhancement in that situation.

The case then returned to the district court, which decided to hold a status hearing

by teleconference to decide how best to proceed. The court invited the attorneys for the

government and the defendant to submit memoranda setting forth their position on

resentencing. Given the narrow scope of the remand, the court opined that a full

‐ blown

sentencing hearing was probably unnecessary, but it added that if Podhorn felt strongly that

he wanted to appear in person, the court was willing to consider such a request. The

government filed its sentencing memorandum on February 20, 2009. Podhorn’s original

offense level was a 28, and his criminal history category was I; following this court’s

decision, the government (agreeing with the district court’s preliminary comments) argued

that the offense level was now a 26, and the revised guideline range was 63 to 78 months. It

recommended a sentence of 71 months, in the middle of that range.

Podhorn did not respond right away with a memorandum on the merits. Instead, on

March 6, 2009, his lawyer filed a Motion for Extension of Time and Access to Medical

Records. Three days later, Podhorn himself filed a pro se motion entitled “Notice of Exercise

of Constitutional Right to Appear.” The district court struck the latter motion because it was

pro se and Podhorn was represented by counsel. The government objected to Podhorn’s

request for medical records, because Podhorn’s medical condition was not an issue at re

‐ sentencing, in its view, and thus the records were not required. The district court granted

Podhorn’s motion for more time, but it denied the motion for medical records. Podhorn

submitted his memorandum on resentencing on March 24, 2009. He agreed that the new

guideline range was 63 to 78 months, but he urged the court to take his post

‐ convictionNo. 09

‐ 2381 Page 3

medical condition into account in resentencing. Once again, the court refused, on the

understanding that this court’s remand limited it to correcting the guidelines computation

and eliminating the two

‐ level increase for stolen firearms. More motions were exchanged,

but on May 14, 2009, the district court re

‐ sentenced Podhorn in accordance with the

position it had taken. It noted that it had selected an 87

‐ month sentence before, which was

at the mid

‐ point of Podhorn’s old guidelines range of 78 to 97 months. It announced that

Podhorn’s new sentence would be 70 months, at the midpoint of his new range. Podhorn

appealed. He was released from custody on December 16, 2009, but he is still serving his

two

‐ year term of supervised release.

Podhorn’s new appeal presents two issues: whether the district court erred when it

found that his recent medical condition was irrelevant to the resentencing proceeding, and

whether he had a right to be physically present at a resentencing hearing. On the first point,

Podhorn argues that his “new medical problems amounted to an exception to this Court’s

stated scope of remand, even if this Court intended to limit the scope of the remand.” He

assumes that the district court thought that it was unable to consider medical issues that

were “extraordinary and unforeseen.” He asserts that it was error not to permit him to

appear in person because the best source of the new medical information he wanted to

introduce was his own testimony. Conceding that this court’s decision in United States v.

Parker, 101 F.3d 527, 528 (7th Cir. 1996), holds that he had no right to be present, he urges us

to overrule Parker and adopt the position taken by some other courts. See United States v.

Demott, 513 F.3d 55, 58 (2d Cir. 2008) (holding that there is a right to be present at

resentencing, but that denial of the right is subject to harmless error review); United States v.

Faulks, 201 F.3d 208, 209 (3d Cir. 2000) (holding that the right exists and that its denial was

not harmless); and United States v. Moree, 928 F.2d 654, 656 (5th Cir. 1991) (distinguishing

between modification of an existing sentence, for which no right to be present exists, and

imposition of a new sentence, for which there is a right to be present and allocute). The

government responds that the scope of our remand was limited and did not invite a full

‐

blown resentencing at which Podhorn’s medical conditions had to be considered. Given the

narrowness of the remand, it continues, this is not one of the situations in which the

defendant’s right to be present is triggered.

The district court properly understood our remand as a very limited one. Indeed, our

earlier opinion affirmed virtually everything that it did, both with respect its handling of

guilt

‐ related issues such as Podhorn’s motion to suppress, the jury instructions, and the

court’s evidentiary rulings, as well as its decisions on all sentencing issues except the one

about § 2K2.1(b)(4). We thus do not need to decide whether, in a full resentencing, a

defendant is entitled to be present, either in general or for the particular purpose ofNo. 09

‐ 2381 Page 4

introducing new evidence about his health. Here, the court fixed the guideline problem that

we had identified and applied exactly the same approach to the resentencing as it had used

in the original proceeding

– that is, it chose a number at the mid

‐ point of the correct range.

The only evidence Podhorn wanted to introduce in favor of a more lenient sentence

related to his medical condition and the difficulty he was having in prison obtaining proper

treatment. Although the latter problem has presumably gone away now that Podhorn is no

longer in prison and is on supervised release, his argument is still properly before us,

because the supervised release would end sooner if he were to prevail. But, as the

government points out, a district court is not required to consider mitigating conduct that

occurs between the original sentencing and re

‐ sentencing. United States v. Brick, 905 F.2d

1092, 1096

‐ 97 (7th Cir. 1990). There are other ways in which extraordinary medical

conditions can be handled, including through placement in a properly equipped prison

facility or through a motion by the Bureau of Prisons made under 18 U.S.C.

§ 3582(c)(1)(A)(i).

Podhorn’s argument about his right to be present founders (as he concedes) on this

court’s decision in Parker

. We are not saying that Parker applies to every remand for

resentencing, no matter how broad or narrow. But when, as Parker said, the earlier “opinion

identifies a discreet, particular error that can be corrected on remand without the need for

redetermination of other issues, the district court is limited to correcting that error.” 101

F.3d at 528. It is worth recalling in this case that the district court chose to exercise its

sentencing discretion by lowering Podhorn’s sentence from 87 months down to 70 months.

Nothing precluded the court from deciding that the 87

‐ month term continued to represent a

reasonable sentence, even though it was nine months above the corrected advisory

guideline range, as long as the court gave an adequate explanation for its rationale. Instead,

the court lowered the sentence, after giving Podhorn the opportunity to file a written

document that would serve as his allocution on this limited resentencing and learning about

his medical problems. Given the nature of this proceeding, we are satisfied that this was

enough.

The judgment of the district court is A FFIRMED

.