United States of America v. Rex A. Hopper

Chicago, IL- Criminal defense lawyer represented defendant with a conspiracy to distribute fifty or more grams of a mixture containing methamphetamine charge.

In June 2017, a grand jury indicted Mr. Hopper on one

count of conspiracy to distribute fifty grams or more of a

mixture and substance containing methamphetamine. Dur‐

ing a three‐day trial, members of the conspiracy as well as

law enforcement officers testified.1 Although most of the

sellers and users testified that what they purchased from

Mr. Hopper was "ice,” some referred to it more generically

as methamphetamine. Two samples, seized from Mr. Hop‐

per's residence and weighing a total of 3.942 grams, were

tested at a Drug Enforcement Agency crime lab; one sample

had a purity level of 98% methamphetamine and the other

97%. Based on the evidence at trial, a jury convicted

Mr. Hopper and "unanimously agree[d], by proof beyond a

reasonable doubt, that the defendant conspired to distribute

1 The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Our

jurisdiction is secure under 28 U.S.C. § 1291.

4 No. 20‐1162

more than fifty (50) grams of a mixture and substance con‐

taining methamphetamine[.]”2



At sentencing, the district court determined that

Mr. Hopper was responsible for 1.968 kilograms of "ice”

methamphetamine which corresponded to a base offense

level of 36 under U.S.S.G. § 2D1.2(c)(2). The court also im‐

posed a two‐level enhancement for maintaining a premises

for the purpose of manufacturing or distributing a controlled

substance under U.S.S.G. § 2D1.1(b)(12). As for Mr. Hopper's

criminal history, the district court assessed one criminal his‐

tory point for a 2008 aggravated battery conviction, which

resulted in a criminal history category of I. Together with

Mr. Hopper's offense level, this determination yielded an

advisory guidelines range of 235 to 293 months. The district

court imposed a sentence of 235 months. Mr. Hopper ap‐

pealed.

B. First Appeal

In his initial appeal, Mr. Hopper challenged both his

conviction and his sentence. Regarding his sentence,

Mr. Hopper maintained that the district court improperly

had applied the enhancement for maintaining a drug prem‐

ises. He also asserted that the district court had engaged in

improper double counting because it attributed to him drug

amounts from transactions described by both Lucas Holland

and Randall Riley. These two individuals, however, were

describing the same transaction.

2 R.68 at 2.

No. 20‐1162 5

We rejected Mr. Hopper's challenges to his conviction

and to the enhancement for maintaining a drug premises.

With respect to the drug calculation, however, we concluded

that the record clearly showed that the transactions de‐

scribed by Holland and Riley were the same and that the

presentence report should not have counted those amounts

twice in determining the quantity of drugs attributable to

Mr. Hopper. We also determined that attributing to

Mr. Hopper double the amount of drugs actually involved in

the transactions "affected Mr. Hopper's substantial rights

because it increased his base offense level and his corre‐

sponding guidelines imprisonment range.” Hopper I, 934

F.3d at 768. The Government had contended that "any error

in calculating Mr. Hopper's relevant conduct was harmless”

because the district court could have relied on other transac‐

tions in which Mr. Hopper was involved. Id. at 769. Never‐

theless, we declined

to affirm Mr. Hopper's sentence based on rele‐

vant conduct calculations that the Government

presented for the first time on appeal. Because

neither party challenged the relevant conduct

calculations below, "the district court, which

has sentencing responsibility,” had no oppor‐

tunity to consider any arguments regarding the

proper calculation of Mr. Hopper's relevant

conduct. The parties must present their drug

quantity calculations to the district court to

consider in the first instance on remand.

Id. at 769–70 (citation omitted).

We therefore affirmed "Mr. Hopper's conviction for con‐

spiracy to distribute methamphetamine and affirm[ed] the

6 No. 20‐1162

district court's determination that he was subject to a sen‐

tence enhancement for maintaining a residence for the pur‐

pose of distributing methamphetamine.” Id. However, we

"vacate[d] his sentence and remand[ed] his case to the dis‐

trict court for resentencing based on our conclusion that

there was plain error in the calculation of Mr. Hopper's rele‐

vant conduct.” Id.

C. Proceedings on Remand

When the case returned to the district court, the proba‐

tion office prepared a revised presentence report. This report

removed the double‐counted drug amounts and determined

that the total relevant conduct was 1.17 kilograms of "ice,”3

which yielded a base offense level of 34. As for Mr. Hopper's

criminal history, the revised report noted additional pending

charges for Mr. Hopper, but no resulting change in criminal

history points. The resulting guidelines range was 188 to 235

months.

The following month, the probation office issued another

revised presentence report.4 This version noted that, during

the pendency of his first appeal, a state residential burglary

charge from 2017 previously listed as "pending,” had result‐

ed in a conviction and sentence. The report also indicated

that this residential burglary sentence, designated by the

state sentencing court to be served concurrently with his

federal sentence, had been stayed. The state court had set a

status conference on the matter for September 6, 2018, but no

3 R.130 at 6 (¶22).

4 See R.133.

No. 20‐1162 7

hearing had occurred, and no further details were available.

The presentence report therefore assessed one additional his‐

tory point for this conviction.5 The additional history point

resulted in a criminal history category of II, and Mr. Hop‐

per's resulting guideline range was 210 to 262 months.

At the sentencing hearing held on October 31, 2019, the

parties and the court discussed the increase in the number of

criminal history points. The Government explained that,

[a]t the initial sentencing of Mr. Hopper he had

not pled guilty to this offense yet, so he did not

receive a criminal history point for it. ... This

change of plea occurred two days after the ini‐

tial sentencing, so now he has two criminal his‐

5 The presentence report indicated that the basis for the assessment of

one criminal history point was U.S.S.G. § 4A1.2(a)(4) and 4A1.2(b)(2).

Section 4A1.2(a)(4) provides:

Where a defendant has been convicted of an offense, but

not yet sentenced, such conviction shall be counted as if

it constituted a prior sentence under § 4A1.1(c) if a sen‐

tence resulting from that conviction otherwise would be

countable. In the case of a conviction for an offense set

forth in § 4A1.2(c)(1), apply this provision only where

the sentence for such offense would be countable regard‐

less of type or length.

"Convicted of an offense,” for purposes of this provi‐

sion, means that the guilt of the defendant has been es‐

tablished, whether by guilty plea, trial, or plea of nolo

contendere.

Section 4A1.2(b)(2) provides: "If part of a sentence of imprisonment was

suspended, 'sentence of imprisonment' refers only to the portion that

was not suspended.”

8 No. 20‐1162

tory points, which would make him a Criminal

History Category II, and his advisory guideline

range is now 210 to 262 months.6

After the Government indicated that this matter was "the

only change,” the court turned to defense counsel and in‐

quired, "Is that your understanding ... ?”7 Defense counsel

responded: "Yes, it is Your Honor. ... I did look into the va‐

lidity of it. We don't have objection to the new presentence

report. I think it accurately sets forth the guidelines.”8

The district court then inquired whether Mr. Hopper had

had an opportunity to review the revised report with coun‐

sel and offered Mr. Hopper a continuance if he needed more

time. Mr. Hopper declined the offer, and, when the court

asked him whether there were "any errors, corrections, al‐

terations, or additions to the report which [he] wish[ed] to

make,” Mr. Hopper responded, "No, sir.”9 The court then

asked defense counsel if "the Defendant ha[d] any objections

... that would affect the advisory guidelines range.” Defense

counsel responded, "No, we do not, Your Honor.”10

Minutes later, however, defense counsel asked for a mo‐

ment to consult with Mr. Hopper. He then stated:

6 R.153 at 3–4.

7 Id. at 4.

8 Id.

9 Id. at 5.

10 Id. at 6.

No. 20‐1162 9

[T]his is ... where we stand: There were some

objections that I think Mr. Hopper had talked

to me about earlier when we originally met.

They're based on what would be kind of Ap‐

prendi or Alleyne challenges to the guidelines.

I've provided some materials and explanation

about why I don't think there's a good faith ba‐

sis for those objections. I indicated to Mr. Hop‐

per that I wouldn't be filing them, but I would

bring it to the Court's attention if he wanted to

proceed pro se or if he wanted different coun‐

sel, but that I don't have a basis for filing

those.11

In response to further questioning by the court, Mr. Hopper

indicated that he had objections "[a]bout the weight and pu‐

rity.”12 Specifically, he thought the weight and purity

"should have been put to the jury.”13 Defense counsel reiter‐

ated that he did not believe there was "a good faith basis [on

which] to advance that objection.”14

The court questioned Mr. Hopper to ascertain the crux of

his argument and tried to explain that the resulting guide‐

lines range fell within the statutory limits. The court also of‐

fered to appoint another attorney for Mr. Hopper. Mr. Hop‐

11 Id. at 7.

12 Id. at 8.

13 Id.

14 Id. at 9.

10 No. 20‐1162

per stated that he wanted to keep his attorney, but he simply

wanted his objections documented on the record. The court

then decided that the best course was to reset the sentencing.

At that point, the court raised the issue of the state resi‐

dential burglary conviction. It noted that the sentence for

that conviction had been suspended but, depending on what

transpired before the new hearing date, Mr. Hopper "could

be bumped from a Criminal History Category II to a III.”15

All acknowledged that possibility and agreed that objections

to any further revisions to the presentence report should be

in writing.

At the continued hearing on November 21, 2019, defense

counsel indicated that he and Mr. Hopper were in the same

place as they had been previously: Mr. Hopper wanted to

assert pro se objections to the presentence report that coun‐

sel could not in good faith make. The court therefore al‐

lowed Mr. Hopper to file his pro se objections with the un‐

derstanding that the probation office and the Government

would have an opportunity to respond. The state burglary

proceedings also were discussed, and Mr. Hopper acknowl‐

edged that, if the stay were lifted in those proceedings, a

postponement of his federal sentencing could affect his crim‐

inal history points and his criminal history category. The

sentencing hearing was then postponed a second time.

Mr. Hopper filed his pro se objections that same day. In

those objections, he stated:

15 Id. at 16.

No. 20‐1162 11

I object to the weight (500‐1.17kg),

I object to the purity (ICE) &

I object to the 2 point enhancement for

maintaining a premises for the purpose of drug

distribution based on solely Judge‐found‐facts.

This is a violation of my "Sixth Amendment

Right.”

On 3/1/2018 the jury found me (Rex Hopper)

guilty of the conspiracy charged in Count 1 of

the Super[s]eding Indictment. Pursuant to a

special verdict form, the Jury found me

(Rex A. Hopper) Guilty by proof beyond [a]

reasonable doubt of conspiracy to distribute

more than fifty (50) grams of a mixture and

substance containing methamphetamine,

that[']s what my Sentencing Guidelines should

have reflected. ...

I object to the fact that the Grand Jury indicted

me on a Schedule II substance "methamphet‐

amine,” but in my Presentence Investigation

Report[,] the court based on solely

judge‐found‐facts, sentenced me to a Schedule

III substance "ICE,” this is a violation of my

rights!16

The Government filed a response to Mr. Hopper's objec‐

tions. It first noted that "any argument raised by the defend‐

ant pro se other than the drug quantity involved is beyond

16 R.136 at 1–2 (capitalization removed).

12 No. 20‐1162

the scope of the remand in this case.”17 It further argued that

any argument that could have been raised in the initial ap‐

peal, but was not, had been waived. The Government also

addressed all possible interpretations of Mr. Hopper's objec‐

tions on the merits.18

At the continued sentencing hearing on January 28, 2020,

the court first recounted Mr. Hopper's pro se objections:

the first objection you objected to the relevant

conduct, and the second objection has to do

with the guidelines being –relevant conduct

being pursuant to the classification of ice

methamphetamine versus mixture and sub‐

stance, and your third objection objected to

two‐point enhancement for maintaining a

premise for the purpose of distribution solely

based on Judge‐found facts.19

Mr. Hopper confirmed that those were his objections. The

court also gave Mr. Hopper an opportunity to argue his ob‐

jections. Mr. Hopper stated:

It's just I went to jury trial, the jury found me

guilty of 50 grams or more of a mixture and

substance of methamphetamine, and I was sen‐

tenced. That's a Class II substance. I was sen‐

tenced to a Class III substance, ice, which is

17 R.139 at 1.

18 See id. at 2–5.

19 R.155 at 3.

No. 20‐1162 13

based solely on Judge‐found facts, and that's a

violation of my rights, I feel.20

Mr. Hopper believed the same rationale applied to the

weight of drugs attributed to him. The Government was giv‐

en an opportunity to respond and reiterated its belief that

any argument other than the quantity is out‐

side the scope of the remand in this case. The

Seventh Circuit was clear that there was not an

issue of whether the substance was ice or not

... . The only issue was the quantity, and the

Seventh Circuit believed that some of the

quantity was double‐counted.21

Beyond that, the Government stated that, even if the court

could consider it, Mr. Hopper's objection did not raise Apprendi

concerns because his guideline range was below the statutory

maximum.

The court then disposed of the objections:

[T]he Seventh Circuit found that this Court

plainly erred when it calculated Mr. Hopper's

relevant conduct and corresponding guideline

range. The Seventh Circuit found that in sepa‐

rate interviews between Lucas Holland and

Randall Riley that they were describing the

same transactions, and by including both

amounts this Court was double‐counting those

20 Id. at 4.

21 Id. at 6.

14 No. 20‐1162

quantities. So, the Court of Appeals vacated

Mr. Hopper's sentence and remanded this case

back to this Court for resentencing. Although

this case is back for a full resentencing, the

Court of Appeals affirmed the original findings

of this Court, including the specific offense

characteristics of the Defendant, the Defendant

maintaining a residence for the purpose of

manufacturing or distributing a controlled

substance, as well as the relevant conduct in‐

volved in the case being ice methamphetamine.

The Seventh Circuit has stated in previous

... opinions ... that if they remand to correct a

... discrete particular error that can be correct‐

ed without a redetermination of other issues,

the District Court is limited to correcting that

error, and the law of the case doctrine general‐

ly prohibits the District Court from reconsider‐

ing on remand the issues expressly or implied‐

ly decided by the higher Court. So, Mr. Nor‐

wood's argument as to the limitation of this

Court on remand is correct.

The issue as to whether the nature of the

substance being ice methamphetamine, as well

as the two‐point enhancement under

2D1.1(b)(12) of the guidelines has previously

been expressly or impliedly decided by the

Court of Appeals.22

22 Id. at 7–8.

No. 20‐1162 15

The district court went on to find that Mr. Hopper was re‐

sponsible for 1.17 kilograms of "ice” methamphetamine.

With the two‐level enhancement for maintaining a drug

premises, this yielded an adjusted offense level of 36. Com‐

bined with his criminal history category of II, the resulting

guideline range was 210 to 262 months. Before going any

further, the court asked counsel to confirm that "the guide‐

line calculations [were] correct”; defense counsel noted no

objections "apart from those that were leveled by Mr. Hop‐

per himself.”23 The court then heard argument from counsel

and again settled on a sentence of 235 months.24

Mr. Hopper again appealed his sentence.

II

DISCUSSION

A.

Mr. Hopper first contends that the Government failed to

meet its burden of establishing that the conspiracy for which

Mr. Hopper was convicted involved the distribution of "ice”

methamphetamine. He maintains that our recent decision,

United States v. Carnell, 972 F.3d 932, 945 (7th Cir. 2020),

makes clear that the Government failed to meet its burden of

establishing that the drugs at issue were "at least 80% pure

methamphetamine” because its proof consisted predomi‐

nantly of "circumstantial evidence by users, dealers and law

23 Id. at 9–10.

24 See id. at 23.

16 No. 20‐1162

enforcement that [the] drug appears to be ice based on look,

smell, effect, [and] nomenclature.”

Mr. Hopper acknowledges that we can consider this is‐

sue only if it falls within the scope of our remand in Hopper I.

He maintains that his current argument meets this criterion

because our remand concerned the calculation of drug quan‐

tity as it relates to relevant conduct. According to Mr. Hop‐

per, "[a]n objection as to the purity ... of methamphetamine”

falls within these parameters.25

We cannot accept this view. "As a general matter, we

have distinguished three types of remand.” United States v.

Uriarte, 975 F.3d 596, 600 n.2 (7th Cir. 2020) (en banc). In the

first type—not at issue here—"the appellate court seeks a

ruling or advice from the trial court and[,] pending its re‐

ceipt of that ruling or advice[,] retains jurisdiction over the

appeal.” Id. (alteration in original) (quoting United States v.

Simms, 721 F.3d 850, 852 (7th Cir. 2013)). In the second type,

"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.” Id. (emphasis

removed) (quoting Simms, 721 F.3d at 852). Finally, in the

third type, "the general remand,” "the appellate court re‐

turns the case to the trial court for further proceedings con‐

sistent with the appellate court's decision, but consistency

with that decision is the only limitation imposed by the ap‐

pellate court.” Id. (quoting Simms, 721 F.3d at 852).

25 Appellant's Br. 22.

No. 20‐1162 17

It is our "decision to remand and our corresponding

opinion” that determine the scope of that remand. United

States v. Barnes, 660 F.3d 1000, 1006 (7th Cir. 2011). When we

employ "broad” language, such as "we vacate the sentence[]

... on count 8 and remand for resentencing consistent with

this opinion,” a complete resentencing is required. Uriarte,

975 F.3d at 600 n.2 (capitalization removed) (alteration in

original) (quoting United States v. Cardena, 842 F.3d 959, 1002

(7th Cir. 2016)). By contrast, when our remand language is

limited to a specific issue, the parties generally are con‐

strained to that issue on remand. United States v. Adams, 746

F.3d 734, 744–45 (7th Cir. 2014) (issuing limited remand for

correction of offense level and redetermination of appropri‐

ate sentence in light of that correction).

Here, both our decision to remand and the remand lan‐

guage we employed in Hopper I focused on the calculation of

the amount of drugs attributable to Mr. Hopper. Although

Mr. Hopper raised another challenge to his sentence, namely

his maintenance of drug premises, the only sentencing error

we identified was the double counting of the Holland and

Riley transactions. We therefore concluded that "resentenc‐

ing based on recalculation of Mr. Hopper's relevant conduct

[wa]s required.” Hopper I, 934 F.3d at 769 (emphasis added).

We reiterated the focus of the remand later in our opinion, in

response to the Government's suggestion that we could af‐

firm based on other transactions on which the district court

had not explicitly relied. We explained that "the district

court, which has sentencing responsibility, had no oppor‐

tunity to consider any arguments regarding the proper cal‐

culation of Mr. Hopper's relevant conduct. The parties must

present their drug quantity calculations to the district court to

consider in the first instance on remand.” Id. at 770 (empha‐

18 No. 20‐1162

sis added) (internal quotation marks omitted) (internal cita‐

tion omitted). Finally, in the conclusion of Hopper I, we "re‐

mand[ed] [Mr. Hopper's] case to the district court for resen‐

tencing based on our conclusion that there was plain error in

the calculation of Mr. Hopper's relevant conduct.” Id. (emphasis

added).

Our remand in Hopper I was limited to correcting the dis‐

trict court's calculation of drug quantity. We therefore can‐

not accept Mr. Hopper's argument that our opinion allowed

for a broader inquiry into "relevant conduct.” "In assessing

the scope of our initial remand, an issue that could have

been raised on appeal[,] but was not[,] is waived and, there‐

fore, not remanded.” United States v. Whitlow, 740 F.3d 433,

438 (7th Cir. 2014); see also United States v. Dearborn, 873 F.3d

570, 573 (7th Cir. 2017) (quoting same). Consequently, the

district court did not err in rejecting Mr. Hopper's argument

about the purity of the "ice” methamphetamine as outside

the scope of our remand.

B.

Mr. Hopper also maintains that, in crafting his sentence

on remand, the district court erred when it included his 2018

conviction for burglary as part of his criminal history calcu‐

lation. The state court entered this conviction after the dis‐

trict court had imposed his sentence the first time. He con‐

cedes that he failed to raise this issue before the district court

and that, consequently, our review is only for plain error.

Under the plain error standard, Mr. Hopper must establish

that "(1) there was error, (2) it was plain, (3) it affected his

substantial rights and (4) the court should exercise its discre‐

tion to correct the error because it seriously affected the fair‐

ness, integrity or public reputation of the judicial proceed‐

No. 20‐1162 19

ings.” United States v. Jumah, 599 F.3d 799, 811 (7th Cir. 2010)

(citing United States v. Olano, 507 U.S. 725, 732–35 (1993)). In

order for error to be "plain,” it "must be clear or obvious,

rather than subject to reasonable dispute.” Puckett v. United

States, 556 U.S. 129, 135 (2009).

The district court assessed one criminal history point for

a burglary conviction dated July 19, 2018,26 two days after

the district court originally imposed sentence on his federal

distribution conviction. As we noted earlier, the state court

imposed a seven‐year sentence for the state burglary convic‐

tion and ordered that it be served concurrently with his fed‐

eral sentence. Later, on August 9, 2018, state court suspend‐

ed the sentence and set a status hearing on the stay of this

sentence for September 2018, but that hearing did not take

place.

In preparing its report for the district court during the

remand proceedings, the probation office, in calculating

Mr. Hopper's criminal history category, accounted for this

new state sentence by referring to U.S.S.G. §§ 4A1.1 and

4A1.2. Specifically, § 4A1.1 provides the number of criminal

history points to assess for each "prior sentence of impris‐

onment,” which § 4A1.2(a)(1) defines as "any sentence pre‐

viously imposed upon adjudication of guilt, whether by

guilty plea, trial, or plea of nolo contendere, for conduct not

part of the instant offense.” Generally, points are assessed

according to length of sentence:

26 See R.133 at 11 (¶48).

20 No. 20‐1162

(a) Add 3 points for each prior sentence of im‐

prisonment exceeding one year and one

month.

(b) Add 2 points for each prior sentence of im‐

prisonment of at least sixty days not counted in

(a).

(c) Add 1 point for each prior sentence not

counted in (a) or (b), up to a total of 4 points

for this subsection.

U.S.S.G. § 4A1.1. Sentences that are "totally suspended or

stayed [are] counted as a prior sentence under § 4A1.1(c).”

U.S.S.G. § 4A1.2(a)(3). If only "part of a sentence of impris‐

onment was suspended, 'sentence of imprisonment' refers

only to the portion that was not suspended.” U.S.S.G

§ 4A1.2(b)(2).

Applying these provisions, the probation office deter‐

mined that the state burglary sentence yielded an assess‐

ment of one criminal history point. Specifically, the sev‐

en‐year sentence for his burglary conviction was unrelated

to his federal offense and was imposed prior to his resen‐

tencing. Absent other circumstances, such a conviction

would warrant an assessment of three points under

§ 4A1.2(a)(1). However, because the state court had sus‐

pended the sentence three weeks after it was imposed, a fur‐

ther reduction was warranted.27

27 Whether the probation office treated the suspension by the state court

as a complete suspension under § 4A1.2(a)(3) or a partial suspension un‐

der § 4A1.2(b)(2), the number of criminal history points attributable to

this sentence decreased from three to one in accordance with § 4A1.1(c).

No. 20‐1162 21

Mr. Hopper does not contest this numerical calculation;

he agrees that, if his burglary sentence can be considered,

the district court accurately assessed him one criminal histo‐

ry point. Instead, Mr. Hopper maintains that the district

court erred in assessing him any criminal history points be‐

cause "prior sentence” does not mean "any sentence” that

was imposed before the resentencing; instead, it means "any

sentence” that was imposed before his original sentence.

Mr. Hopper rests his contention on the decision of the

First Circuit in United States v. Ticchiarelli, 171 F.3d 24, 35 (1st

Cir. 1999). In Ticchiarelli, the First Circuit concluded that "the

most sensible reading” of "prior sentence” was "a sentence

which is prior to the original sentence which was vacated

and remanded only for resentencing.” Id. at 35. According to

the First Circuit, this reading was most consistent with its

conception of "the mandate rule,” which "does not permit

de novo resentencing as to all aspects of a sentence when a

sentence has been vacated.” Id.

Mr. Hopper acknowledges, however, that a majority of

our sister circuits have reached the opposite view. See United

States v. Burke, 863 F.3d 1355, 1359 (11th Cir. 2017) ("Unlike

the effect of vacatur in the First Circuit, ... vacatur in our

Circuit wipes the slate clean. And that clean slate requires a

district court to consider pre‐vacatur sentences because a

district court conducts a resentencing as if no initial sentenc‐

ing ever occurred.” (citation omitted)); United States v. Tid‐

well, 827 F.3d 761, 763 (8th Cir. 2016) ("We decline to apply

this reasoning because the 'context' in this case is distin‐

guishable. Tidwell was not resentenced on remand from this

court. Rather, the district court granted him a de novo resen‐

tencing as postconviction relief under 28 U.S.C. § 2255. The

22 No. 20‐1162

First Circuit's reasoning was based in part on its restrictive

'mandate rule.' We take a less restrictive approach in con‐

struing the scope of our mandate when we remand for re‐

sentencing.” (citation omitted)); United States v. Klump, 57

F.3d 801, 802–03 (9th Cir. 1995) (concluding that a sentence

imposed after the first federal sentence but before resentenc‐

ing did not violate its rule against considering

post‐sentencing conduct because the conduct which formed

the basis for the intervening sentence pre‐dated the initial

sentencing).

At this point, we can draw several conclusions. Initially,

because our court has not yet had the occasion to address the

interpretative issue addressed by the other circuits, it is diffi‐

cult for Mr. Hopper to assert successfully that the district

court committed plain error. An error is plain if it is "clear or

obvious”28 at the time of appeal.29 To be clear or obvious,

"[i]t cannot be subtle, arcane, debatable, or factually compli‐

cated,” United States v. Caputo, 978 F.2d 972, 975 (7th Cir.

1992), but must be "contrary to well‐settled law,” United

States v. Salas, 889 F.3d 681, 687 (10th Cir. 2018). See United

States v. Jones, 873 F.3d 482, 497 (5th Cir. 2017) (explaining

that the district court's error could not have been "plain” be‐

cause there was a split in the circuits on which the Fifth Cir‐

cuit had not taken a position). Given the lack of controlling

28 Puckett v. United States, 556 U.S. 129, 135 (2009).

29 Henderson v. United States, 568 U.S. 266, 271 (2013) (holding that

whether error is plain is assessed according to the law "in effect at the

time [the appellate court] renders its decision” (internal quotation marks

omitted)).

No. 20‐1162 23

precedent in our circuit, and the disagreement among the

other courts of appeals, we cannot conclude that the district

court's decision to consider Mr. Hopper's state burglary sen‐

tence a "prior sentence” for purposes of calculating his crim‐

inal history category was "plain” error. See United States v.

Koch, 978 F.3d 719, 726 (10th Cir. 2020) ("In the absence of

Supreme Court or circuit precedent directly addressing a

particular issue, a circuit split on that issue weighs against a

finding of plain error.” (internal quotation marks omitted)).

Additionally, a forthright reading of our earlier decision

in this case makes clear that, having determined that the ini‐

tial sentence rested on a misapprehension of the quantity of

drugs involved, we contemplated that the district court

would have to examine any other aspect of the previous sen‐

tence infected by this error. We therefore "vacate[d] his sen‐

tence and remand[ed] his case to the district court for resen‐

tencing based on our conclusion that there was plain error in

the calculation of Mr. Hopper's relevant conduct.” Hopper I,

934 F.3d at 770.

Such a resentencing necessarily involves more than sub‐

stituting the correct amount of drugs in the guideline calcu‐

lation. A change in drug quantity certainly will affect the

way the sentencing court views other factors that must be

taken into account in the final sentencing determination. In‐

deed, in Pepper v. United States, 562 U.S. 476 (2011), the Su‐

preme Court emphasized that "Congress could not have

been clearer in directing that '[n]o limitation ... be placed on

the information concerning the background, character, and

conduct' of a defendant that a district court may 'receive and

consider for the purpose of imposing an appropriate sen‐

tence.'” Id. at 490 (alterations in original) (quoting 18 U.S.C.

24 No. 20‐1162

§ 3661). The plain wording of this statutory command re‐

quires no judicial gloss. Furthermore, Congress has directed

that the district courts consider specific factors in crafting an

appropriate sentence. See 18 U.S.C. 3553(a). These mandato‐

ry considerations include the defendant's "history and char‐

acteristics” and the need to accomplish certain sentencing

policy goals, such as protecting the public from further crim‐

inal conduct and affording "the defendant ... needed educa‐

tional or vocational training ... or other correctional treat‐

ment.” Id.

Consequently, in fashioning an individualized sentence,

the district court certainly may consider intervening events

that alter the assessment of factors made at the earlier sen‐

tencing. See Pepper, 562 U.S. at 491–92 (explaining how "evi‐

dence of postsentencing rehabilitation may be highly rele‐

vant to several ... § 3553(a) factors” on resentencing). Proof

of significant rehabilitation might inure to the defendant's

benefit, see id. at 492; an intervening conviction will have an

adverse effect, cf. Wasman v. United States, 468 U.S. 559, 572

(1984) (explaining that, "after retrial and conviction follow‐

ing a defendant's successful appeal, a sentencing authority

may justify an increased sentence by affirmatively identify‐

ing relevant conduct or events that occurred subsequent to

the original sentencing proceedings”).30 The statutory

30 Again, we note that the need to reopen those aspects of the sentence

that may have been affected by the error does not require the district

court to reexamine factual matters that already were determined, or

could have been determined, in earlier proceedings. Absent a showing of

new developments that could not have been considered by the court in

the previous proceeding, such matters are settled. See supra at pp.17–18.

No. 20‐1162 25

scheme reflects the congressional realization that district

courts sentence and resentence real persons in real time. It

therefore places no barrier on the district court's considera‐

tion of developments that have occurred after the original

sentencing that are relevant to the sentencing process.

Oftentimes, the new evidence is a factor favorable to the

defendant such as significant rehabilitation efforts while in‐

carcerated. Here, the new development was not favorable.

What had been simply a "pending” charged burglary at the

time of the Mr. Hopper's original sentencing had become a

conviction and sentence. Although the state court had miti‐

gated substantially the impact of the state sentence through

a stay, the conviction nevertheless warranted consideration.

Here, the district court did not consider the evidence of

Mr. Hopper's subsequent criminal activity to guide its choice

of guideline sentence. Instead, Mr. Hopper's state burglary

conviction was accounted for in the calculation of his crimi‐

nal history category, specifically, the district court employed

§ 4A1.1 and § 4A1.2(a)(1). Our case therefore does not in‐

volve direct application of Pepper, § 3661, or § 3553(a).

However, Pepper, § 3661, and § 3553(a) do inform our

understanding of what factors constitute legitimate consid‐

erations in sentencing. At bottom, Mr. Hopper's argument is

that "any sentence previously imposed” in § 4A1.2(a)(1) can‐

not include sentences imposed after his original sentencing

because district courts cannot consider evidence of interven‐

ing events. As we have demonstrated, this is not the case.

Moreover, similar to the mandates of § 3661 and § 3553(a),

the language of the Guideline is broad and inclusive. It di‐

rects courts, in the first instance, to include within the de‐

fendant's criminal history calculation any sentences im‐

26 No. 20‐1162

posed, including those imposed after a vacated original sen‐

tence.

Here, there was no plain error. Indeed, the district court

acted consistently with the language of the Guidelines, with

Congress's statutory requirements for sentencing, and with

the Supreme Court's guidance. Therefore, we cannot con‐

clude that the district court erred in assessing Mr. Hopper an

additional criminal history point.

For the reasons set forth in the foregoing opinion, the

judgment of the district court is affirmed.