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# United States Court of Appeals For the Seventh Circuit

No. 13-1347

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee ,

v.

K AL I P H P. W H I TL OW

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the

Central Distri ct o f Il l i noi s. No. 2: 10 -CR-2 00 50 -M PM-DGB-1 — Micha el P. McCus key, Judg e.

A RGU E D O C T OB E R 31, 2013

— D E C I D E D J ANU AR Y 21, 2014

Before B AU E R

, M AN I O N

, and R OVN E R

, Circ uit Judges.

R OVN E R , Cir cui t Judge. In 2011, Kalip h Whi tlow pled gui lty to t w o c ounts of di strib uti on of fi v e or more g rams of cocaine base, in violati on of 21 U.S.C. § 841(a)( 1), cri mes he commi tte d before the Augus t 3, 2010 effecti v e date of the Fair Sente ncing Act of 2010. See Pub

. L. 111–220, 124 St at. 2372 (2010) (hereafter the “Fair Sente ncing Act” or the “Act”). In October 2011, the di stric t court sentenced hi m to 262 months’ i mpri sonment,2 No. 13-1347 rej ecti ng hi s request that he be sentenced under the Act. After the Supreme Court i ssu ed i ts opin i on in Dorsey v
. United States , 132 S. Ct. 2 321 (2012), w e v acated Whi tlow’s sentence and remanded the case for resentencing in accordance wi th Dorsey and the Act. R. 1 6

. Th e di stric t court sub sequently sentenced Whi tlow to a ter m of 170 months’ i mpri sonment, and Whi tlow

now appeals hi s new sentence. The government concedes that the di stric t court may hav e mi sapprehended i ts sentencing di scret io n in one respect. W e v acate Whi tlow’s sentence and remand for t he li mi ted purpose o f gi ving the di stric t courtan oppor tuni ty t o ex erci se i ts di screti on on one fin al i ssu e. I. On J une 9, 2010, Whi tlow w as ch arg ed wi th tw o counts of possess i on wi th intent to di strib ute fi v e gr ams or more of crack cocaine. The government subsequently fi led a notic e that i t int e nded to seek enhanc ed penalti es based on a numb er of prior felony convic tions

. See 21 U.S.C. § 851. Whi tlow pled gui lty in April 2011, and the court conduct e d a sentencing hearin g in

October of that y ear . Although Whitlow requested that t he court sentence hi m und er the mor e leni ent standards set fort h in the Fair Sente ncing Act of 2010, the court follow ed then-cu rr ent ci rcui t law and declined to apply the Act. Instead, the court calculated the gui delines range for Whi tlow as 262 to 327 mo nt hs’ i mpri sonment. After consi dering the secti on 3553(a) factors and Whi tlow’s arg uments in mi tigati on, the

co ur t sent enced Whi tlow to 262 months in pris on, to be follow ed by an ei ght-y ear t erm of supervised release. Whi tlow fi led a tim ely notic e of appeal. Shor tly there after , the S up r e me Court gr anted certiorari in Dorsey, a case thatNo. 13-1347 3

w ould deci de whether courts should apply the Act to cases li ke Whi tlow’s, where the cri me w a s co mm i tte d prior to the effecti v e date of the Act but t he sentencing occurred after the effecti v e date. In li ght of thi s dev elopment, Whi tlow mov ed in thi s court for leave t o file a statement of posi tion in li eu o f an openi ng bri ef. R. 9. In that motion, Whi tlow stated that he “wi ll rais e only one i ssu e on appeal: W he t he r the Fair Sente ncing Act appli es to ind ividu als who w ere sentenced after i ts enactment?” R. 9, at 2. W e gr anted leav e for Whi tlow to fi le hi s “St atement of P osi tion” (“S tate ment”) in li eu of an openi ng bri ef and allow ed the government to respond to the St atement. R. 10. In the St atement, Whi tlow reite rat ed that he “had only

one nonfri vo l o us i ssu e to rais e on appeal: Whether the Fair Sente ncing Act appli es to indi vidu als who w ere sentenced after i ts ena ct me nt ?” R. 11, at 3. Acknowledgin g that ci rcui t law w as settled against thi s posi tion, Whi tlow nonetheless sought t o preserve the arg ument for rev i ew in the Supreme Court in l ig ht o f the gr ant of certiorari in Dorsey

. Whi tlow rais ed no other objectio ns t o hi s convic tion or sentence and suggested that the court hold the appeal in abey ance pending the outcome of Dorsey

. The government agr eed that t he ncurrent ci rcui t law foreclosed Whi tl o w’ s so le i ssu e on appeal and asked thi s court to hold consi derat i on of the appeal until the Supreme Court ruled in Dorsey

. R. 13. W e then sus pended proceedings in the appeal pending the outcome of Dorsey and a relat ed case. R. 14. After the Supreme Court ruled in Dorsey, Whi tlow and the government fi led a “Joi nt St atement of P osi tion in Li ght of the Supreme Court ’s Holding in Dorsey .” R. 15 (hereafter “Joint S t atement”). In the Joi nt St atement, the parties agr eed that,4 No. 13-1347
under Dorsey, t he di stric t court procedurally err ed at Whi tlow’s sentencing by not a p plyi ng the Act, and that the err or
w as no t ha r mless. In particu lar , the parties asserted that the sentence w as abov e the low end of the corr ect gui delines range and the court had not indi cated that i t w ould i mpose the same sentence i f the A ct appli ed. The court had also commented that, “It w ould deprecate the seri ousness of y our cri minal hi stor y to v ary from the career offender advis or y gui delines.” Joi nt St atement, at 4 (quoti ng R. 38, T r
. at 33). The parties asked that w e “v acate the defendant’s sentence and remand thi s case for resentencing.” Joi nt St atement, at 1. W e then or dered that Whi tlow’s “sentence i s v acated and the case i s remanded for

re sentencing in accordance wi th Dorsey and the Fa i r Se n te n c in g Act.” R. 16. On remand, the probat i on offi ce re-calcu lated Whi tlow’s sentencin g gui delines range under the Act, and i ssu ed an
a d dendum to the Presentence Inv esti gation Repor t (“PSR”). The new advis or y gui delines r ange w as 188 to 235 mo nths o f i mpri sonme nt , and t he PSR conti nued t o assert that Whi tlow q ua l i fi ed to be sentenced as a career offender

. Nei ther party objecte d to the new PSR, but Whi tlow fi led a S e nt encing Memor andum, seek ing a sentence of 144 months’ i mpri sonment and rais ing four arg uments in supp or t of a belowgui delines sentence. In particu lar , Whi tlow arg ued that (1) a tw elv e-y ear ter m w ould be twi ce as long as any prior sentence Whi tlow had receiv ed in state court, repr esenting a more appropr i ate incremental puni shm ent than a gui delines-range sentence; (2) the career offender gui deline i s defecti v e becau se i t i s not based on empi ric a l studi es, lacks a gener al deter rent effect o n str eet-lev el drug dealers such as Whi tlow , and has aNo. 13-1347 5
di spr op or ti on a te a d v e rs e e ffe c t on i m p overis hed minoriti es; (3)

a tw elv e-y ear sentence w ould accoun t for Whi tlow’s postsentencing rehabi li tation efforts, inclu ding obtaining a GED certifi cate and w or kin g stead ily in pris on; and (4) some di scoun t to hi s sentence w as necess ary to corr ect a calc ulati on by the Bureau of Pri sons (“BOP”) th a t r e su lted in a fai lure to credi t Whi tlow for approx i mately ei ght mo nths in federal

cus tody whi le he w as serving tim e on a state sent e nc e fo r a cri me that could be consi dered relev ant conduc t to the offense of convic tion here. At the 2013 sentencing h earing, the gov ernment asked the court to i mpose a sentence “that’s basi cally consi stent wi th the prior recommendation and the pri or sentence.” R. 54, T r . at 6. The gov ernment asserted t hat Whi tlow “s hould be sentenced

as a career offender as the Court di d the fi rst tim e aro und.” Id

. The government noted that thi s w as Whi tlow’s ei ghth felony drug convic tion and that he also had a ro bbery convic tion o n hi s recor d, justif

yin g a career offender sentence. In response to the court ’ s questi on reg ardin g Whi tlow’s arg ument that the BOP fai led to credi t Whi tlow wi th tim e serv ed in pret rial

cus tody , the government contended that i t w as up to the BOP to fi x any err or in connecti on wi th the pret rial cus tody period, and that Whi tlow could pursue admini strat i v e remedies to fi x any error
. The government opposed any ac tion by the di stric t court to credi t Whi tlow for that tim e. At no tim e di d the government alert t he di stric t courtthat Whitlow’s arguments in mi tigati on w ere i mprop e r be cause he had not preserved them in the 2011 sentencing or in the appeal of that sentencing
or that t hey w ere bey ond the scope of our r emand.6 No. 13-1347
Whi tlow’s couns el arg ued for adjustments based on the fa ct or s rais ed in hi s Sente ncing Memor andum, inclu ding the BOP’s err or

, the need for inc r e me ntal puni shm ent, the inappropr i ateness of applyi ng the career offender gui deline to a defendant li ke Whi tl ow , and Whi tlow’s post-sentencing efforts at rehabi li tation. As w e wi ll di scu ss below , the court expr essly declined to address the BOP’s err or , commented indi rectly on incremental sentencing and career offender status, and expr essly gr anted an ei ghteen month reducti on from the bott om of the gui delines range for exc e p t i onal efforts at rehabi li tation. The court sentenced Whi tlow to 1 7 0 months’ impri sonment, to be follow ed by si x y ears of supervis ed release. Whi tlow appeals. II. On appeal, Whi tlow contends that th e d i stric t court commi tte d procedural err or when it failed to exer ci se i ts di screti on to adjust the sentence downw ard to accoun t for the tim e that Whi t l o w sp ent in pret rial cus tody after the BOP declin e d t o credi t hi m for that tim e. Whi tlow also maintai ns that the court err ed when i t fai led to consi der hi s tw o prin ci pal arg uments in mi tig a t io n, namely , hi s attack on the career offender gui deline and hi s contention t ha t an incremental sentence w as more appropr i ate than a full gui delines sentence. Th e go v e rnm e n t c oun te rs th a t Whi tl ow ’s mi tigati on argu m e n ts
w ere not proper ly before the di stric t court becau se he fai led to present them at ei ther hi s ini tial sentencing or duri ng the fi rst appeal, and that they w ere beyond the scope of our remand. The g ov ernment also att acks Whi tlow’s arg uments in miti gation on the merits, exce p t t ha t the government concedes that the courterr ed in fai ling to apprehend i ts di screti on to fi x theNo. 13-1347 7

err or commi tte d by the BOP

. The government there for e requests that, i f we deci de to reach the i ssu e relat ed to the BOP’s calculati on of credi t for tim e serv ed, w e or der a li mi ted remand for the d istric t court to clari fy whether i t understood i ts di screti on to adjust for t hi s erro r
. A. Before the fi rst sentencing hearin g in 2011, Whi tlow rais ed

no objections to the PSR and arg ued o nl y that he should be sentenced under the Fair Sente ncing Act. At the 2011 sentencing hearin g, the di stric t court sua sponte noted i ts d iscret i on under United States v
. Corner, 598 F .3d 411 (7th Ci r
. 2010), to di sagree wit h any gui delines prov i si on on poli cy gr ounds, inclu ding the career offender gui deline. R. 38, T r
. at 12. At the 2011 sentencing, the government encoura g ed the court to apply the career offender gui deline bas e d o n Whi tlow’s ext ensi v e cri minal hi st o r y
. Whi tlow’s couns el countered that Whi tlow’s cri minal hi stor y appeared more seri ous than i t w as becau se Whi tlow had only one cri me of violence on hi s recor d,

a ro bbery

. Whi tlow’s couns el also maintai ned that the crack/powder di spari ty affec ted the appli cati on of t he car eer offender gui de l in e a n d th a t the c ou rt should consi der adjusti ng the sentence downw ard on t hat basi s as well. The di stric t court then carefully consi dered i ts di screti on under Corner to v ary from the career offender gui deline. In i ts comments, the court addressed t he patter n in Kankak ee County where street -lev el dealers li ke Whi tlow r o utinely receiv ed short se ntences in the state courts wi thout any
w arnin g that entry into the federal system came wi th sub stantiall y increased penalti es. Ultim ately , the court deci ded that8 No. 13-1347
W hi tlow’s recor d w as one that called for appli cati on of t he

career offender gui deline, and that Whi tlow required a longer sentence becau se shorter sent ences had fai led to affec t hi s cri minal behavi or
. R. 38, T r
. at 24–33. The co ur t expr essly rej ected any arg ument that the career gui deline w as not appropr i ate: It w ould deprecate the seri ousness of y our cri minal hi stor y to v ary from the career offender advis or y gui del in e s
. They’re advic e; they’ re gui dance, but the y’ re go od gui dance becaus e they’ re made for somebody just li ke y ou. R. 38, T r
. at 33. As we noted abov e, Whi tlow then informed thi s court that hi s sole i ssu e on appeal w as the di stric t court’s refusal t o apply the Fair Sente ncing Act. Follo wing the Supreme Court ’s r uling in Dorsey, w e then v acated the sentence and remanded for re sentencing. The government now contends that, at the 2013 re-sentencing, the di stric t court need not hav e reached any new arg uments that could hav e been rais ed at Whi tlow’s fi rs t sentencing and that we sh o ul d not address those i ssu es ei ther

. The government ci tes as “new” Whi tlow’s arg ument that the court should not apply the career offender gui deline to hi m and that the court should apply a se nt e nc e only incrementally longer than the state court sentences prev i ously appli ed to Whitlow

. But these w ere not “new” i ssu es before t he d ist ric t court. At the fi rst sentencing hearing, the court itself rai sed the i ssu e of i ts di screti on reg ardin g the career offender gui deline and also indi rectly addr e ssed the i ssu e of incremental sentencing. The parties arg ued these matter s on the merits and the courtNo. 13-1347 9
ulti mately conclu ded that the career offender gui deline w as appropr i ately appli ed to Whi tlo w and that a gui delines sentence w as necess ary in li ght of hi s fa ilu re to change the

course of hi s cri minal conduc t following lesser state sentences

. Thus, when Whi tlow rais ed these i ssu es at the 2013 re-sentencing, they w ere si mply reassertions of i ssu es consi dered at the 2 0 1 1 s e n te n c in g. Th at sai d, Whi tlow expr essly confined hi s fi rs t appeal to the appli cabi li ty of the Fair Sente ncing Act, telling thi s court that he had “only one i ssu e on ap peal: Whether the Fair Sente ncing Act appli es,” and again that he “had only one nonfri v olous i ssu e to rais e on a p peal: Whether the Fair Sente ncing Act appli es.” R. 9, at 5; R. 11, at3. In asses sing the scope of our ini t ia l remand, an i ssu e that could hav e been ra ised on appeal but w as not i s w ai v ed and, there fore, not remanded. United States v
. Barnes , 660 F .3d 1000, 1006 (7th Ci r
. 2011); United States v
. Schroeder , 5 36 F .3d 746, 751–52 (7t h Ci r
. 2008). Whi tlow contends that, li ke the defendant i n Schroeder

, the tr unc ated appeals process empl oy ed by the part i es in t he fi rst appeal pr ecluded hi m from rais ing any other i ssu es, and so hi s addi tional objections w ere not w ai v ed. But Schroe der’s “fi rst appeal w as tr unc ated b efore he had the oppor tuni ty to challen ge the sentencing court's ruli ngs on the i ssu es” that he rais ed in hi s second a p p e a l. 536 F .3d at 751. That w as not th e ca se he re where Whi tlow fi led tw o documents in thi s court professing that he ha d o nly one nonfri v olous i ssu e to appeal. In ei ther of those documents, Whi tl o w co uld hav e reserved addi tional i ssu es relat ed to the fi rst sentencing. Th e second major li mi tation on the scope of a remand is tha t any i ssu e conclu si v ely deci ded by thi s court on the fi rst10 No. 13-1347 appeal i s not remanded. Schroeder , 536 F .3d at 752; United States
v
. Husband, 312 F .3d 247, 251 (7th Ci r
. 2 0 0 2 ). The only i ssu e conclu si v ely deci ded in the fi rst appea l is the appli cabi li ty of the Fair Sente ncing Act, and so nothin g in o ur fi rst ruling precluded the di stric t court from consi dering other i ssu es in i ts di screti on. W

e hav e a l so held that “when a case i s gener ally remanded to the di stric t court for re-sentencin g, the di stric t court may enter tain new arg uments as necess ary to effectuate i ts sentencing intent, but i t i s not obli gate d to consi der any new evidenc e or arg uments bey ond that relev ant to the i ssu es rais ed on appeal.” Barn es , 660 F .3d at 1007. See also Pepper v
. United States , 131 S. Ct. 122 9 , 1251 (2011) (a cri minal sentence i s a package of sanc tions that the di stric t court ut iliz e s to effectuate i ts sentencing intent, and because a di stric t court's

or i gin al sentencing intent may be undermined by alter ing one port i on of the calculus, an appellate court when rev ersi ng one part of a defendant's sentence may v a ca t e t he entire sentence
so that, on remand, the tr i al court can reconfi gure the sentencing plan to sati sfy the sentencing factors in 18 U.S.C. § 3553(a))

. General remands, such as the one w e i ssu ed in t his case, “render a di stric t court unc onstrained by any eleme nt o f the prior sentence.” Barnes , 660 F .3d at 1007. The di stric t court w as thus free to consi der any i ssu e it consi dered necess ary to effectuate i ts sentencing intent, ev en i ssu es Whi tlow fai led to rais e in hi s fi rst appeal. At the same t ime , the court w as not obli gate d to consi der i ssu es that Whi tlow had expr essly

w ai v ed. As Whi tlow corr ectly poin ts out, how ev er , the government di d not alert the di st r ict court that these i ssu es may hav e exceeded the scope of the remand a nd d id not arg ue to theNo. 13-1347 11
di stric t court that the i ssu es should be consi dered w ai v ed. Instead, the government responded on the merits and w ai v ed any w ai v er
. See Unite d S ta tes v
. Dun kel , 927 F .2d 955, 956 (7th Ci r . 1991) (clai ms of w ai v er may t hemselv es be w ai v ed; when the government fa ils to resi st a petiti on by arg uing that the poin t w as not preserve d , a nd instead urges a court to deci de the i ssu e on the merits, the w ai v er i s w ai v ed ). B ut ev en i f w e consi der Whi tlow’s arg ument on the merits, w e conclu de that the court di d not e rr
. The court more than adequately addressed the caree r o ff e nder gui deline i ssu e and the need for incremental puni shm ent. In fact, atboth sentencing hearings, the court addressed the unfortun a te p a tt e rn of re p eat offenders in Kankak ee County receiving relat iv e l y l i ght s e n te n c e s in state court unti l t he y finally encounter the federal system, where they are subj e ct t o lengthy sentences and the career offender gui deline. The co urt w as w ell aw are of i ts di screti on to di sregar d that gui del ine a nd to adjust the sentence for incremental puni shm ent. It si mply chose not to adjust the sentence
on those bases, r e ma rk ing that “[a] li feti me of cri me wi ll

ev entually get y ou a li feti me o f tim e in F ederal Court .” R. 54, T r
. at 14. See United States v
. W omack, 732 F .3d 745, 747 (7th Ci r
. 2013) (as long as the sentencing court consi ders the arg uments made in mi tigati on, ev en i f i mpli ci tly and i mpreci sely , t he sentence i mposed wi ll be found re a so na ble). The court di d adjust the sentence downw ard f or Whi tlow’s post-sentencing efforts at rehabi li tatio n, an adjustment to whi ch the government does not object. In all other respects, the c ourt gener ally fo l l ow ed the government’s recommendati on to re-im pose a
se nt ence at the bott om of the gui delines range, rej ecti ng a ny challen ge to the appropr i ateness of the career offender gui de-12 No. 13-1347
line in this ins t ance. There w as no procedural err or in thi s approach; the recor d as a whole rev eals that the court carefully consi dered all of Whi tlow’s arg uments in mi tigati on. B. At the tim e of the 2011 sent e nc ing, the BOP had not y et deter mined how i t w ould tr eat the period of pre-tr i al detention, when Whi tlow w as fini shing a sentence i mposed by the state for conduc t that could be consi dered relat ed to the offense of convic tion in federal court. Becaus e Whi tlow could not hav e rais ed thi s i ssu e at the fi rst sentencing, there could be no
w ai v er for fai lure to rais e i t earlier

. Barnes , 660 F .3d at 10 0 6 ; Schroeder , 536 F .3d at 751–52. As w e no ted, at the 2013 resentencing, the government urged the di stric t court to decline Whi tlow’s request to adjust hi s sentence based on thi s calc ulation by the BOP

. The government instea d suggested that Whi tlow could pursue admini strat i v e remedies wi th the BOP

. The court remar ked: W ell, and but the w ay the Bureau of Pr i sons di d i t in thi s case w as, in effect, made i t consec uti v e. By not start ing unti l Mar ch, they , in effect, w ai ted, I thi nk, unti l the St ate sentence w as ov er and then start ed there and, in effec t, took aw ay fro m me a deci si on as to whether I

w a nt ed consecuti v e or concu rr ent. They made i t, in effect, cons ecuti v e, the w ay it looks to me. R

. 54, T r
. at 10. When declaring the final sentence, t he co ur t stated: I’m not going to make any comment about the Bureau of Pri sons’ calculati on. So I’m not, in effect, low eringNo. 13-1347 13
your sentence becau se they deci ded to make the se ntence consecuti v e. I w ould hav e made i t concu rr ent i f I’d hav e known i t, but that’ s the w ay things are. R. 54, T r . at 20. The parties now agr ee that t he co urt mi sapprehended i ts di screti on to adjust Whi tlow’s sentence to accoun t for the ei ght months he w as held in p r etr i al cus tody , tim e for whi ch the BOP declined to give hi m cred it

. The court made clear that i t
w ould hav e sentenced Whi tlow di fferently i f i t had known the BOP w ould take thi s approach. But the co ur t does in fact possess the di screti on to adjust Whi tlow’s sentence to accoun t for the tim e the BOP refu se d to credi t. See United States v
. Campbel l , 6 1 7 F .3d 958, 960–61 (7th Ci r
. 2010); United States v
. Bangsengthong, 550 F .3d 681, 682–83 (7t h Ci r
. 2008). W e there fore v acate and remand Whi tlow’s sent ence for the li mi ted purpose of giving the court an oppor tuni ty to exer ci se it s di screti on to adjust Whi tlow’s sentence to accoun t for t he ei ght month pre-tr i al detention, i f the court finds i t appropr i ate to do so. See United States v
. S i m m s , 721 F .3d 850, 852 (7th Ci r
. 2013) (desc rib ing the tw o types of li mi ted remand, inclu ding where “the appellate court ret urns th e case to the tr i al court but wi th instructi ons to make a ruli ng or other deter minati on on a speci fi c i ssu e or i ssu es and do nothi ng else”).
V ACA TED AND REMANDED.