United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued October 3, 2017

Decided November 21, 2017

Before

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 16-1698

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM F. CONOUR,

Defendant-Appellant.

Appeal from the United States 

District Court for the Southern District 

of Indiana, Indianapolis Division.

No. 1:12CR00129-001

Richard L. Young,

Judge.

O R D E R

William Conour, a former attorney, pleaded guilty to wire fraud after the 

government discovered he had swindled clients for years by stealing settlement 

proceeds. The district court initially sentenced him to 10 years in prison followed by a 

year of supervised release. But in a prior appeal we granted the parties’ joint motion for 

resentencing in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). On 

remand the district court again sentenced Conour to 10 years, and he now argues that a 

third sentencing is necessary. He contends that the court misunderstood the scope of a 

Thompson remand and erred both by refusing to entertain arguments made in his 

sentencing memorandum and by denying him the right to allocute. We agree and 

remand again for resentencing. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 16-1698 Page 2

Conour practiced law for nearly forty years and built a lucrative practice 

representing accident victims. Starting in 1999, he encouraged clients to leave him in 

charge of their settlement proceeds, which he promised to hand over to a trust company 

that would distribute the proceeds in a series of monthly payments instead of as a lump 

sum. But he skimmed much of this settlement money for himself. Even worse, 

sometimes he did not tell clients he had received their settlement proceeds (or even that 

the case had settled) and instead simply stole the funds. Conour’s fraud finally came to 

light when the FBI received a tip in 2011.

A year later Conour was charged with wire fraud, 18 U.S.C. § 1343. The charging 

information alleges that, as part of a scheme to defraud, he had settled a client’s case by 

faxing a release to an out-of-state insurance company. Conour received and negotiated 

the $450,000 settlement check without telling his client or giving the client any part of 

the funds. All told, the information accuses Conour of converting $4.5 million belonging 

to over 25 clients.

Conour pleaded guilty. He stipulated that he had “devised and conducted a 

scheme to defraud his clients out of money,” settled the client’s case without his 

knowledge, faxed the agreement using interstate wires, and used the $450,000 to pay his 

own expenses.

At his initial sentencing Conour conceded, through counsel, that the loss exceeds

$2.5 million, that the number of victims is greater than 10, and that he had abused a 

position of trust. But he successfully contested several proposed increases to his offense 

level, and the district court granted him a 3-level reduction for acceptance of 

responsibility. Conour lost only two objections to upward adjustments: a 2-level 

increase for targeting vulnerable victims and another 2-level increase for using 

sophisticated means to commit the crime. After calculating a guidelines imprisonment 

range of 97 to 121 months, the court sentenced Conour to 120 months plus a year of 

supervised release. The court also imposed more than $6 million in restitution. 

Conour appealed and filed a brief principally contending that the district court 

had imposed several problematic conditions of supervised release. After briefing was 

completed, we decided United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). In 

response to our request for statements of position following Thompson, the parties filed 

a joint motion requesting a remand for resentencing, which we granted.

On remand Conour represented himself and sought both to revisit old issues and 

raise new ones. He first moved to dismiss the information and for bond pending 

resentencing. The district court denied both motions, characterizing Conour’s motion to 

dismiss as “a last ditch attempt to evade responsibility for his conduct.” Conour then 
No. 16-1698 Page 3

submitted a resentencing memorandum, again challenging the upward adjustments for 

targeting vulnerable victims and using sophisticated means. But he also argued for the 

first time that the loss is zero; that the number of victims is 2, not 10 or more; that he did 

not abuse a position of trust; and that he should not be ordered to pay any restitution.

The government replied that the district court’s rulings on old matters are law of 

the case, and that Conour had waived his new arguments by not raising them at the 

initial sentencing or on appeal. Alternatively, the government said it was prepared to 

introduce evidence establishing the disputed guidelines matters. And since Conour 

seemed to be renouncing his previous declarations of fault, the government also argued 

that he should no longer receive the 3-level decrease for accepting responsibility. 

The district judge did not delve into any of these issues at resentencing. At the 

outset the judge said he would entertain “discussion regarding conditions of supervised 

release” (as well as a second matter that Conour declined to pursue). But the judge 

concluded that Conour had waived any objection to rulings made at the first sentencing 

but not challenged on appeal. The judge reasoned that he was “not authorized by the 

7th Circuit to reopen those matters.” And when asked by the prosecutor if he would 

reassess prior rulings if authorized, the judge first said no, explaining that he still 

thought 10 years was an appropriate sentence. But then the judge added that he was 

incorporating the original sentencing into the record, and that he was “not authorized 

to disturb that.” The judge then asked for comments about the appropriate conditions 

of supervised release; Conour offered none, and the government proposed eliminating 

supervised release entirely. The judge accepted that proposal and resentenced Conour 

to 10 years’ imprisonment without any supervised release.

After the judge had pronounced this sentence, the prosecutor urged him to let 

Conour speak about his efforts to rehabilitate himself in prison. At that point, the judge 

told Conour that he could make a statement:

[Y]ou certainly have a right and an opportunity to make any statement 

you wish to the Court regarding the issue of sentencing, any issues in 

sentencing that I’m authorized to take a look at here; or for that matter, 

anything that’s on your mind that is relevant to the matters we’re 

discussing here today. 

Conour then engaged the judge in a dialogue touching on his resentencing memo, and 

the judge repeated his position that Conour had waived his arguments by not raising 

them previously.
No. 16-1698 Page 4

On appeal Conour argues that the district judge erred by declining to conduct a 

full resentencing. He says that his case is indistinguishable from United States v. Mobley, 

833 F.3d 797, 803 (7th Cir. 2016), in which we remanded a second time for resentencing 

because the sentencing judge had misunderstood the scope of a Thompson remand. 

Similarly, says Conour, in his case the judge mistakenly believed that the remand was 

limited to revising the conditions of supervised release and did not encompass 

Conour’s other arguments. Moreover, the judge—again, as in Mobley—did not let 

Conour allocute before pronouncing sentence. Thus, Conour concludes, we must again 

remand for resentencing.

The government concedes that the district judge misunderstood the scope of the 

remand and thus erred in thinking he lacked the authority to consider Conour’s 

arguments. As we explained in Mobley, a district court may, following a Thompson

remand, “reconsider the sentence as a whole” in order to “effectuate its sentencing 

intent.” 833 F.3d at 801. That means the sentencing court may, in its discretion, reassess 

prior rulings and entertain entirely new contentions, even if they could have been 

raised previously. See id. at 801–02.

The district court did not know about this discretion (understandably, since 

Mobley had not even been argued). But the government says that knowing about it 

would not have made a difference. According to the government, Conour’s case is 

similar to United States v. Lewis, 842 F.3d 467, 474 & n.2 (7th Cir. 2016), in which we

concluded that a district court’s ignorance about its power to entertain new arguments 

after a Thompson remand was harmless. The government contends that here the district 

court “left no doubt” that it would not have exercised its discretion to hear Conour’s 

arguments. And, the government continues, Conour’s resentencing memo contained 

meritless arguments that could not have benefitted him.

Conour’s case, however, is closer to Mobley than to Lewis. In Lewis, the district 

court had entertained the defendant’s renewed arguments and calculated a lower 

imprisonment range before choosing to impose the same prison sentence as before. 

842 F.3d at 472–73. Here, the district court apparently thought it could not adjust the 

sentence. In Lewis, moreover, the district court alternatively considered the defendant’s

newly raised argument and rejected it on the merits, id. at 472, but in this case the judge 

did not share his views about any of Conour’s arguments. The prosecutor did press the 

judge to say whether he would reassess his earlier rulings if allowed; the judge said no, 

but it is difficult to say if “no” meant that the judge would not or could not. After all, the 

exchange between them ended with the judge’s comment that he was “not authorized 

to disturb” the record from the original sentencing. The judge’s “no” might suggest 
No. 16-1698 Page 5

disinterest in rehashing issues already litigated, but that is far from certain; in short, his 

comments offer no insight about his willingness to consider the new arguments in 

Conour’s resentencing memo.

Finally, in Lewis we were able to assess the defendant’s argument because the 

district court had evaluated the merits and factual findings were unnecessary. But here 

the district judge did not consider Conour’s new arguments. And Conour’s principal 

contention about the amount of loss is a factual inquiry. See United States v. Locke, 

643 F.3d 235, 244–45 (7th Cir. 2011); United States v. Barnhart, 599 F.3d 737, 747–48 

(7th Cir. 2010). As in Mobley, the record shows that the district judge mistakenly 

believed that the remand was limited to revising the conditions of supervised release 

and thus thought he “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.” 833 F.3d at 803.

We are skeptical, though, that the contentions in Conour’s resentencing memo 

will help his cause. If anything, the district court seemed to conclude that those 

arguments weigh against him, rather than in his favor. Still, even if we could accept the 

government’s assertion that futility makes the judge’s mistake about Thompson

harmless, the judge committed a second procedural error that warrants another

resentencing: he did not invite Conour to allocute before imposing sentence. 

See FED. R. CRIM. P. 32(i)(4)(A)(ii).

Before a district court imposes sentence, it must invite the defendant personally 

to speak and give any information that might mitigate his sentence. Id. This right to 

allocute “is the right to have your request for mercy factored into the sentencing 

decision.” United States v. Barnes, 948 F.2d 325, 329 (7th Cir. 1991). It is a personal right 

and separate from counsel’s presentation because even “[t]he most persuasive counsel 

may not be able to speak for a defendant as the defendant might, with halting 

eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961)

(Frankfurter, J., plurality opinion). And on a full remand, like Conour’s, the defendant 

has “no sentence until the district court imposes a new one,” so his right to personally 

address the court is “revived” on remand. Mobley, 833 F.3d at 802; see Barnes, 948 F.2d 

at 330. Thus, Conour was entitled to again address the district court before sentence was 

imposed, but that opportunity was withheld. He did not object to the denial, though, so 

we review for plain error. Mobley, 833 F.3d at 803. That standard is met here. 

The government says that plain error did not occur because Conour had “ample 

opportunity to address the district court” and identifies several occasions when he

spoke at the resentencing. This misses the point. The rule requires that allocution 
No. 16-1698 Page 6

precede the court’s selection of a sentence, but Conour’s opportunity to speak at any 

length came after the court already had sentenced him. Before imposing the sentence, 

the judge asked Conour, who was proceeding pro se, only about the two issues he had 

raised in his first appeal.

A belated allocution is error unless the district court puts aside its original 

determination and takes “steps to communicate effectively to the defendant that, through 

his statement, he has a meaningful opportunity to influence the sentence.” United States 

v. Luepke, 495 F.3d 443, 450 (7th Cir. 2007) (emphasis in original); see Barnes, 948 F.2d

at 331 & n.5. After imposing sentence and then being reminded by the government 

about Conour’s right to speak, the district judge invited Conour to address the court. 

But the judge did not set aside the sentence before hearing from Conour or give any 

assurances that he would reconsider the sentence already imposed.

We “presume prejudice when there is any possibility that the defendant would 

have received a lesser sentence had the district court heard from him before imposing 

sentence.” Luepke, 495 F.3d at 450. The government does not concede that Conour was 

denied his right to allocute, so it makes no effort to refute this presumption. And we 

cannot say with certainty that Conour would not have received a lesser sentence had he 

been afforded the opportunity to allocute.

Still, we are not required to grant Conour relief, but we may if we determine that 

the error “seriously affect[s] the fairness, integrity, or public reputation of the judicial 

proceedings.” Luepke, 495 F.3d at 451 (quoting Johnson v. United States, 520 U.S. 461, 467 

(1997)). Ordinarily we will remand when the right to allocute has been denied, “absent 

some rare indication from the face of the record” that the denial did not affect the 

fairness of the sentencing process. Luepke, 495 F.3d at 452; see United States v. Pitre, 

504 F.3d 657, 663 (7th Cir. 2007).

The government argues that the procedures here were not unfair to Conour. 

Essentially the government suggests that Conour received the same reconsideration 

that other defendants receive when we direct a limited remand for reconsideration of 

the supervised-release portion of their sentences, except that Conour also personally 

addressed the court. Once again, the government misses the point. The government 

joined Conour in asking for a Thompson remand, which is a remand for a full 

resentencing, not a limited remand. Perhaps the government did not understand what it 

agreed to, but it must accept that we did what it asked and gave Conour a clean slate, 

which revived his right to allocute. See Mobley, 833 F.3d at 802.

We conclude that Conour’s inability to allocute before he was sentenced did 

“seriously affect” the fairness of the proceedings. Conour was not given an opportunity 
No. 16-1698 Page 7

to speak about anything that might have mitigated his prison sentence—whether it was 

his rehabilitative efforts in prison, an explanation of his criminal actions, or even a 

rehashing of the arguments in his resentencing memo—before the judge imposed a

sentence that was near the top of the guidelines imprisonment range. And, unlike in the 

majority of cases, Conour did not have counsel to voice arguments in mitigation on his 

behalf. Additionally, as the Tenth Circuit recently explained, even in circumstances

where a lesser sentence might be unlikely, denying the defendant a chance to allocute 

undermines other values connected to the allocution, including giving him the chance 

to accept responsibility and providing the court with a better understanding of him.

See United States v. Bustamante-Conchas, 850 F.3d 1130, 1142 (10th Cir. 2017). These 

circumstances, coupled with the district judge’s erroneous belief that he could not 

entertain Conour’s arguments about the guidelines calculations, might give the wrong 

impression to Conour and the public that the court imposed a predetermined (and, 

indeed, previously imposed) sentence.

Moreover, this case is unlike others in which we have declined to remedy 

allocution errors. The government has cited only one example where we did not 

remand for resentencing despite an allocution error. In United States v. Noel, 581 F.3d 

490, 504 (7th Cir. 2009), we concluded that even though the district court did not 

personally invite the defendant to allocute at sentencing, the fairness of the process was 

not affected because the judge twice mentioned the right to allocute before imposing 

sentence, defense counsel read aloud a letter from the defendant that was structured 

similarly to an allocution, and the defendant received a sentence below the guidelines 

range. Differences in Noel and Conour’s case abound: Conour was not informed of his 

right to address the court nor did he get to speak at any length before receiving his 

sentence at the high end of the guidelines range.

Apart from Noel, we are aware of only one other case in which we declined to 

remand, but that case involved revocation of supervised release. See Pitre, 504 F.3d 

at 663. The right to allocute at a revocation hearing is the same as at sentencing. 

See id. at 662. But Pitre also is distinguishable from Conour’s case because the court in 

Pitre already had warned the defendant that she would receive a particular prison term

if she again violated the conditions of her supervised release and then the court

followed through the next time she broke her promise to abide by the conditions of 

release. Id. at 663. We concluded that denying the defendant her right to allocute did 

not affect the fairness of the proceedings because she knew she would receive a prison 

term of that length and her lawyer did not attempt to contest the term of imprisonment 

at the revocation hearing. Id. At Conour’s resentencing, by contrast, the judge was not 
No. 16-1698 Page 8

simply implementing a predetermined prison term and Conour, as shown by his 

resentencing memo, did wish to speak to the court about the length of his sentence.

Finally, Conour asks that we reassign the case to a different district judge 

pursuant to Circuit Rule 36. But we see no reason why the district judge would be 

unable to fairly consider the issues on remand; he exhibited a willingness to comply 

with the court’s remand order and showed no bias against Conour. See United States v. 

Tova-Pina, 713 F.3d 1143, 1148 (7th Cir. 2013).

Accordingly, we vacate the sentence and remand for resentencing.