In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1347

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KALIPH P. WHITLOW,

Defendant-Appellant.

Appeal from the United States District Court for the 

Central District of Illinois.

No. 2:10-CR-20050-MPM-DGB-1 — Michael P. McCuskey, Judge.

ARGUED OCTOBER 31, 2013 — DECIDED JANUARY 21, 2014

Before BAUER, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. In 2011, Kaliph Whitlow pled guilty

to two counts of distribution of five or more grams of cocaine

base, in violation of 21 U.S.C. § 841(a)(1), crimes he committed

before the August 3, 2010 effective date of the Fair Sentencing

Act of 2010. See Pub. L. 111–220, 124 Stat. 2372 (2010) (hereafter

the “Fair Sentencing Act” or the “Act”). In October 2011, the

district court sentenced him to 262 months’ imprisonment,
2 No. 13-1347

rejecting his request that he be sentenced under the Act. After

the Supreme Court issued its opinion in Dorsey v. United States,

132 S. Ct. 2321 (2012), we vacated Whitlow’s sentence and

remanded the case for resentencing in accordance with Dorsey

and the Act. R. 16. The district court subsequently sentenced

Whitlow to a term of 170 months’ imprisonment, and Whitlow

now appeals his new sentence. The government concedes that

the district court may have misapprehended its sentencing

discretion in one respect. We vacate Whitlow’s sentence and

remand for the limited purpose of giving the district court an

opportunity to exercise its discretion on one final issue.

I.

On June 9, 2010, Whitlow was charged with two counts of

possession with intent to distribute five grams or more of crack

cocaine. The government subsequently filed a notice that it

intended to seek enhanced penalties based on a number of

prior felony convictions. See 21 U.S.C. § 851. Whitlow pled

guilty in April 2011, and the court conducted a sentencing

hearing in October of that year. Although Whitlow requested

that the court sentence him under the more lenient standards

set forth in the Fair Sentencing Act of 2010, the court followed

then-current circuit law and declined to apply the Act. Instead,

the court calculated the guidelines range for Whitlow as 262 to

327 months’ imprisonment. After considering the section

3553(a) factors and Whitlow’s arguments in mitigation, the

court sentenced Whitlow to 262 months in prison, to be

followed by an eight-year term of supervised release.

Whitlow filed a timely notice of appeal. Shortly thereafter,

the Supreme Court granted certiorari in Dorsey, a case that
No. 13-1347 3

would decide whether courts should apply the Act to cases like

Whitlow’s, where the crime was committed prior to the

effective date of the Act but the sentencing occurred after the

effective date. In light of this development, Whitlow moved in

this court for leave to file a statement of position in lieu of an

opening brief. R. 9. In that motion, Whitlow stated that he “will

raise only one issue on appeal: Whether the Fair Sentencing

Act applies to individuals who were sentenced after its

enactment?” R. 9, at 2. We granted leave for Whitlow to file his

“Statement of Position” (“Statement”) in lieu of an opening

brief and allowed the government to respond to the Statement.

R. 10. In the Statement, Whitlow reiterated that he “had only

one nonfrivolous issue to raise on appeal: Whether the Fair

Sentencing Act applies to individuals who were sentenced

after its enactment?” R. 11, at 3. Acknowledging that circuit

law was settled against this position, Whitlow nonetheless

sought to preserve the argument for review in the Supreme

Court in light of the grant of certiorari in Dorsey. Whitlow

raised no other objections to his conviction or sentence and

suggested that the court hold the appeal in abeyance pending

the outcome of Dorsey. The government agreed that thencurrent circuit law foreclosed Whitlow’s sole issue on appeal

and asked this court to hold consideration of the appeal until

the Supreme Court ruled in Dorsey. R. 13. We then suspended

proceedings in the appeal pending the outcome of Dorsey and

a related case. R. 14. 

After the Supreme Court ruled in Dorsey, Whitlow and the

government filed a “Joint Statement of Position in Light of the

Supreme Court’s Holding in Dorsey.” R. 15 (hereafter “Joint

Statement”). In the Joint Statement, the parties agreed that,
4 No. 13-1347

under Dorsey, the district court procedurally erred at Whitlow’s sentencing by not applying the Act, and that the error

was not harmless. In particular, the parties asserted that the

sentence was above the low end of the correct guidelines range

and the court had not indicated that it would impose the same

sentence if the Act applied. The court had also commented

that, “It would deprecate the seriousness of your criminal

history to vary from the career offender advisory guidelines.”

Joint Statement, at 4 (quoting R. 38, Tr. at 33). The parties asked

that we “vacate the defendant’s sentence and remand this case

for resentencing.” Joint Statement, at 1. We then ordered that

Whitlow’s “sentence is vacated and the case is remanded for

resentencing in accordance with Dorsey and the Fair Sentencing

Act.” R. 16.

On remand, the probation office re-calculated Whitlow’s

sentencing guidelines range under the Act, and issued an

addendum to the Presentence Investigation Report (“PSR”).

The new advisory guidelines range was 188 to 235 months of

imprisonment, and the PSR continued to assert that Whitlow

qualified to be sentenced as a career offender. Neither party

objected to the new PSR, but Whitlow filed a Sentencing

Memorandum, seeking a sentence of 144 months’ imprisonment and raising four arguments in support of a belowguidelines sentence. In particular, Whitlow argued that (1) a

twelve-year term would be twice as long as any prior sentence

Whitlow had received in state court, representing a more

appropriate incremental punishment than a guidelines-range

sentence; (2) the career offender guideline is defective because

it is not based on empirical studies, lacks a general deterrent

effect on street-level drug dealers such as Whitlow, and has a
No. 13-1347 5

disproportionate adverse effect onimpoverished minorities; (3)

a twelve-year sentence would account for Whitlow’s postsentencing rehabilitation efforts, including obtaining a GED

certificate and working steadily in prison; and (4) some

discount to his sentence was necessary to correct a calculation

by the Bureau of Prisons (“BOP”) that resulted in a failure to

credit Whitlow for approximately eight months in federal

custody while he was serving time on a state sentence for a

crime that could be considered relevant conduct to the offense

of conviction here.

At the 2013 sentencing hearing, the government asked the

court to impose a sentence “that’s basically consistent with the

prior recommendation and the prior sentence.” R. 54, Tr. at 6.

The government asserted that Whitlow “should be sentenced

as a career offender as the Court did the first time around.” Id.

The government noted that this was Whitlow’s eighth felony

drug conviction and that he also had a robbery conviction on

his record, justifying a career offender sentence. In response to

the court’s question regarding Whitlow’s argument that the

BOP failed to credit Whitlow with time served in pretrial

custody, the government contended that it was up to the BOP

to fix any error in connection with the pretrial custody period,

and that Whitlow could pursue administrative remedies to fix

any error. The government opposed any action by the district

court to credit Whitlow for that time. At no time did the

government alert the district court that Whitlow’s arguments

in mitigation were improper because he had not preserved

them in the 2011 sentencing or in the appeal of that sentencing

or that they were beyond the scope of our remand. 
6 No. 13-1347

Whitlow’s counsel argued for adjustments based on the

factors raised in his Sentencing Memorandum, including the

BOP’s error, the need for incremental punishment, the inappropriateness of applying the career offender guideline to a

defendant like Whitlow, and Whitlow’s post-sentencing efforts

at rehabilitation. As we will discuss below, the court expressly

declined to address the BOP’s error, commented indirectly on

incremental sentencing and career offender status, and

expressly granted an eighteen month reduction from the

bottom of the guidelines range for exceptional efforts at

rehabilitation. The court sentenced Whitlow to 170 months’

imprisonment, to be followed by six years of supervised

release. Whitlow appeals.

II.

On appeal, Whitlow contends that the district court

committed procedural error when it failed to exercise its

discretion to adjust the sentence downward to account for the

time that Whitlow spent in pretrial custody after the BOP

declined to credit him for that time. Whitlow also maintains

that the court erred when it failed to consider his two principal

arguments in mitigation, namely, his attack on the career

offender guideline and his contention that an incremental

sentence was more appropriate than a full guidelines sentence.

The government counters that Whitlow’s mitigation arguments

were not properly before the district court because he failed to

present them at either his initial sentencing or during the first

appeal, and that they were beyond the scope of our remand.

The government also attacks Whitlow’s arguments in mitigation on the merits, except that the government concedes that

the court erred in failing to apprehend its discretion to fix the
No. 13-1347 7

error committed by the BOP. The government therefore

requests that, if we decide to reach the issue related to the

BOP’s calculation of credit for time served, we order a limited

remand for the district court to clarify whether it understood

its discretion to adjust for this error.

A.

Before the first sentencing hearing in 2011, Whitlow raised

no objections to the PSR and argued only that he should be

sentenced under the Fair Sentencing Act. At the 2011 sentencing hearing, the district court sua sponte noted its discretion

under United States v. Corner, 598 F.3d 411 (7th Cir. 2010), to

disagree with any guidelines provision on policy grounds,

including the career offender guideline. R. 38, Tr. at 12. At the

2011 sentencing, the government encouraged the court to

apply the career offender guideline based on Whitlow’s

extensive criminal history. Whitlow’s counsel countered that

Whitlow’s criminal history appeared more serious than it was

because Whitlow had only one crime of violence on his record,

a robbery. Whitlow’s counsel also maintained that the

crack/powder disparity affected the application of the career

offender guideline andthat the court should consider adjusting

the sentence downward on that basis as well. 

The district court then carefully considered its discretion

under Corner to vary from the career offender guideline. In its

comments, the court addressed the pattern in Kankakee

County where street-level dealers like Whitlow routinely

received short sentences in the state courts without any

warning that entry into the federal system came with substantially increased penalties. Ultimately, the court decided that
8 No. 13-1347

Whitlow’s record was one that called for application of the

career offender guideline, and that Whitlow required a longer

sentence because shorter sentences had failed to affect his

criminal behavior. R. 38, Tr. at 24–33. The court expressly

rejected any argument that the career guideline was not

appropriate:

It would deprecate the seriousness of your criminal

history to vary from the career offender advisory guidelines. They’re advice; they’re guidance, but they’regood

guidance because they’re made for somebody just like

you.

R. 38, Tr. at 33. As we noted above, Whitlow then informed this

court that his sole issue on appeal was the district court’s

refusal to apply the Fair Sentencing Act. Following the Supreme Court’s ruling in Dorsey, we then vacated the sentence

and remanded for resentencing. 

The government now contends that, at the 2013 re-sentencing, the district court need not have reached any new arguments that could have been raised at Whitlow’s first sentencing

and that we should not address those issues either. The

government cites as “new” Whitlow’s argument that the court

should not apply the career offender guideline to him and that

the court should apply a sentence only incrementally longer

than the state court sentences previously applied to Whitlow.

But these were not “new” issues before the district court. At

the first sentencing hearing, the court itself raised the issue of

its discretion regarding the career offender guideline and also

indirectly addressed the issue of incremental sentencing. The

parties argued these matters on the merits and the court
No. 13-1347 9

ultimately concluded that the career offender guideline was

appropriately applied to Whitlow and that a guidelines

sentence was necessary in light of his failure to change the

course of his criminal conduct following lesser state sentences.

Thus, when Whitlow raised these issues at the 2013 re-sentencing, they were simply reassertions of issues considered at the

2011 sentencing.That said, Whitlow expressly confined his first

appeal to the applicability of the Fair Sentencing Act, telling

this court that he had “only one issue on appeal: Whether the

Fair Sentencing Act applies,” and again that he “had only one

nonfrivolous issue to raise on appeal: Whether the Fair

Sentencing Act applies.” R. 9, at 5; R. 11, at 3. 

In assessing the scope of our initial remand, an issue that

could have been raised on appeal but was not is waived and,

therefore, not remanded. United States v. Barnes, 660 F.3d 1000,

1006 (7th Cir. 2011); United States v. Schroeder, 536 F.3d 746,

751–52 (7th Cir. 2008). Whitlow contends that, like the defendant in Schroeder, the truncated appeals process employed by

the parties in the first appeal precluded him from raising any

other issues, and so his additional objections were not waived.

But Schroeder’s “first appeal was truncated before he had the

opportunity to challenge the sentencing court's rulings on the

issues” that he raised in his second appeal. 536 F.3d at 751.

That was not the case here where Whitlow filed two documents in this court professing that he had only one nonfrivolous issue to appeal. In either of those documents,

Whitlow could have reserved additional issues related to the

first sentencing. 

The second major limitation on the scope of a remand is

that any issue conclusively decided by this court on the first
10 No. 13-1347

appeal is not remanded. Schroeder, 536 F.3d at 752; United States

v. Husband, 312 F.3d 247, 251 (7th Cir. 2002). The only issue

conclusively decided in the first appeal is the applicability of

the Fair Sentencing Act, and so nothing in our first ruling

precluded the district court from considering otherissues in its

discretion. We have also held that “when a case is generally

remanded to the district court for re-sentencing, the district

court may entertain new arguments as necessary to effectuate

its sentencing intent, but it is not obligated to consider any new

evidence or arguments beyond that relevant to the issues

raised on appeal.” Barnes, 660 F.3d at 1007. See also Pepper v.

United States, 131 S. Ct. 1229, 1251 (2011) (a criminal sentence

is a package of sanctions that the district court utilizes to

effectuate its sentencing intent, and because a district court's

original sentencing intent may be undermined by altering one

portion of the calculus, an appellate court when reversing one

part of a defendant's sentence may vacate the entire sentence

so that, on remand, the trial court can reconfigure the sentencing plan to satisfy the sentencing factors in 18 U.S.C. § 3553(a)).

General remands, such as the one we issued in this case,

“render a district court unconstrained by any element of the

prior sentence.” Barnes, 660 F.3d at 1007. The district court was

thus free to consider any issue it considered necessary to

effectuate its sentencing intent, even issues Whitlow failed to

raise in his first appeal. At the same time, the court was not

obligated to consider issues that Whitlow had expressly

waived. 

As Whitlow correctly points out, however, the government

did not alert the district court that these issues may have

exceeded the scope of the remand and did not argue to the
No. 13-1347 11

district court that the issues should be considered waived.

Instead, the government responded on the merits and waived

any waiver. See United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir. 1991) (claims of waiver may themselves be waived; when

the government fails to resist a petition by arguing that the

point was not preserved, and instead urges a court to decide

the issue on the merits, the waiver is waived). But even if we

consider Whitlow’s argument on the merits, we conclude that

the court did not err. The court more than adequately addressed the career offender guideline issue and the need for

incremental punishment. In fact, at both sentencing hearings,

the court addressed the unfortunatepatternofrepeat offenders

in Kankakee County receiving relatively light sentences in state

court until they finally encounter the federal system, where

they are subject to lengthy sentences and the career offender

guideline. The court was well aware of its discretion to

disregard that guideline and to adjust the sentence for incremental punishment. It simply chose not to adjust the sentence

on those bases, remarking that “[a] lifetime of crime will

eventually get you a lifetime of time in Federal Court.” R. 54,

Tr. at 14. See United States v. Womack, 732 F.3d 745, 747 (7th Cir.

2013) (as long as the sentencing court considers the arguments

made in mitigation, even if implicitly and imprecisely, the

sentence imposed will be found reasonable). The court did

adjust the sentence downward for Whitlow’s post-sentencing

efforts at rehabilitation, an adjustment to which the government does not object. In all other respects, the court generally

followed the government’s recommendation to re-impose a

sentence at the bottom of the guidelines range, rejecting any

challenge to the appropriateness of the career offender guide-
12 No. 13-1347

line in this instance. There was no procedural error in this

approach; the record as a whole reveals that the court carefully

considered all of Whitlow’s arguments in mitigation.

B.

At the time of the 2011 sentencing, the BOP had not yet

determined how it would treat the period of pre-trial detention, when Whitlow was finishing a sentence imposed by the

state for conduct that could be considered relatedtothe offense

of conviction in federal court. Because Whitlow could not have

raised this issue at the first sentencing, there could be no

waiver for failure to raise it earlier. Barnes, 660 F.3d at 1006;

Schroeder, 536 F.3d at 751–52. As we noted, at the 2013 resentencing, the government urged the district court to decline

Whitlow’s request to adjust his sentence based on this calculation by the BOP. The government instead suggested that

Whitlow could pursue administrative remedies with the BOP.

The court remarked:

Well, and but the way the Bureau of Prisons did it in

this case was, in effect, made it consecutive. By not

starting until March, they, in effect, waited, I think, until

the State sentence was over and then started there and,

in effect, took away from me a decision as to whether I

wanted consecutive or concurrent. They made it, in

effect, consecutive, the way it looks to me.

R. 54, Tr. at 10. When declaring the final sentence, the court

stated:

I’m not going to make any comment about the Bureau

of Prisons’ calculation. So I’m not, in effect, lowering
No. 13-1347 13

your sentence because they decided to make the sentence consecutive. I would have made it concurrent if

I’d have known it, but that’s the way things are.

R. 54, Tr. at 20. 

The parties now agree that the court misapprehended its

discretion to adjust Whitlow’s sentence to account for the eight

months he was held in pretrial custody, time for which the

BOP declined to give him credit. The court made clear that it

would have sentenced Whitlow differently if it had known the

BOP would take this approach. But the court does in fact

possess the discretion to adjust Whitlow’s sentence to account

for the time the BOP refused to credit. See United States v.

Campbell, 617 F.3d 958, 960–61 (7th Cir. 2010); United States v.

Bangsengthong, 550 F.3d 681, 682–83 (7th Cir. 2008). We

therefore vacate and remand Whitlow’s sentence for the

limited purpose of giving the court an opportunity to exercise

its discretion to adjust Whitlow’s sentence to account for the

eight month pre-trial detention, if the court finds it appropriate

to do so. See United States v. Simms, 721 F.3d 850, 852 (7th Cir.

2013) (describing the two types of limited remand, including

where “the appellate court returns the case to the trial court

but with instructions to make a ruling or other determination

on a specific issue or issues and do nothing else”). 

VACATED AND REMANDED.