United States v. Scott Carnell

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2135 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

SCOTT A. CARNELL, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Illinois. No. 4:18-cr-40066 — J. Phil Gilbert, Judge. ____________________

ARGUED MARCH 30, 2022 — DECIDED JUNE 2, 2022 ____________________

Before EASTERBROOK, WOOD, and HAMILTON, Circuit Judges. WOOD, Circuit Judge. In 2019 Scott Carnell pleaded guilty to one count of conspiracy to distribute a mixture containing methamphetamine. At Carnell’s sentencing hearing, however, the district court found that Carnell had conspired to distrib- ute 2.37 kilograms of pure methamphetamine, a finding that increased Carnell’s base offense level under the U.S. Sentenc- ing Guidelines by four points. Carnell appealed, and we

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reversed in part and remanded because the government had not met its burden to prove the greater level of purity. United States v. Carnell, 972 F.3d 932 (7th Cir. 2020) (“Carnell I”). On remand, the district court recalculated both Carnell’s offense level and his criminal-history category. It increased the latter from category III to V to account for Carnell’s convictions on two Illinois offenses while Carnell I was on appeal. The court also specified for the first time that Carnell’s federal sentence would be consecutive to any state sentence resulting from several other charges that were pending at the time. Carnell appealed again, asserting that both the criminal-history recal- culation and the consecutive-sentencing order exceeded the scope of the Carnell I remand. This time, we find no merit in Carnell’s arguments, and so we affirm. I We begin with a few more details about our decision in Carnell I and subsequent events. Carnell’s 2019 guilty plea was to one count of violating 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 846. Together, those provisions make it a federal crime to conspire to distribute 50 grams or more of a mixture or substance containing methamphetamine. The pro- bation office prepared a presentence investigation report (PSR), in which it concluded that Carnell’s relevant conduct involved 2.37 kg of pure methamphetamine (also known as “ice”), not a mixture, and that this called for a base offense level of 36. (The federal sentencing guidelines distinguish be- tween methamphetamine mixtures and ice, treating distribu- tion of the latter more severely. See U.S.S.G. § 2D1.1, note C.) The PSR also calculated a criminal-history category of III and proposed a three-point acceptance-of-responsibility reduc- tion to Carnell’s total offense level.

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At the sentencing hearing, Carnell objected to the PSR’s classification of the drugs as ice. But the district court rejected his arguments, adopted the PSR’s findings and recommenda- tions, and calculated a guideline range of 168 to 210 months. It sentenced Carnell to 192 months’ imprisonment. Carnell appealed, arguing that the government had not carried its burden to prove drug purity. For present purposes, it suffices to say that we agreed with him. For more details, see Carnell I, 972 F.3d at 938–45. We reversed the district court’s finding as to drug purity, vacated Carnell’s sentence, and remanded “for further proceedings consistent with [the] opinion.” Id. at 946. We did not discuss criminal history, other than to note in passing that the district court had considered it as part of its guideline calculation. Id. at 935. And, apart from the mandate just quoted, our opinion did not instruct the district court on its next steps. On remand, the probation office prepared a revised PSR. That PSR added four points to Carnell’s criminal history, all for Illinois charges that had been pending during the first sen- tencing proceeding but had resulted in convictions by the time we decided Carnell’s first appeal. The revised PSR in- creased Carnell’s criminal-history category from III to V, to account for the four additional points. Consistent with Car- nell I, it used the guidelines for mixtures and downgraded Carnell’s base offense level from 36 to 32 (meaning his total adjusted offense level was 29 after the acceptance-of-respon- sibility reduction). The PSR calculated a new guideline range of 140 to 175 months. At the sentencing hearing on remand, the district court adopted the PSR’s findings and calculations in full. When asked, neither Carnell nor his attorney voiced any objection

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to the criminal-history recalculation. The court sentenced Car- nell to 165 months (i.e., 27 months less than the sentence it gave on the first go-round). It specified that the sentence was to be served consecutively to, among other things, “any sen- tence imposed in any pending felony charges in … St. Clair County, Illinois.” At the time of resentencing, Carnell was fac- ing charges of burglary and possession of a firearm by a felon in that county. Carnell did not object or otherwise take excep- tion to the consecutive sentence at the hearing. He now ar- gues, however, that the court erred both by increasing his criminal history to category V and by running this sentence consecutively to any sentence in the St. Clair matter. II A We begin with Carnell’s criminal-history argument. A re- mand for resentencing may be general or limited. 28 U.S.C. § 2106; United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016). Carnell argues that the district court was not authorized to increase his history category from category III to category V because the Carnell I remand was limited and the history re- calculation exceeded its scope. Normally, we review de novo whether a district court exceeded its mandate on remand. United States v. White, 406 F.3d 827, 831 (7th Cir. 2005). But when a defendant fails to raise an issue at sentencing, thereby forfeiting it, we instead assess only whether plain error exists. United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Hyatt, 28 F.4th 776, 782 (7th Cir. 2022). The latter standard ap- plies here, because Carnell did not object to the history recal- culation in the district court.

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The Supreme Court has explained that plain-error review involves four steps: First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. … Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. … Third, the error must have affected the appel- lant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. … Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of ju- dicial proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009) (cleaned up). We recently addressed how the plain-error standard ap- plies when a defendant’s criminal-history category is recalcu- lated on a limited remand. In United States v. Hopper, 934 F.3d 740 (7th Cir. 2019) (“Hopper I”), as here, a first appeal led us to vacate a defendant’s sentence and remand for resentencing using a lower advisory offense level. As here, the district court on remand lowered the offense level but also increased the defendant’s criminal-history category because of a new con- viction. And as here, the defendant raised no objection to these changes in the district court, but then argued on appeal that the entire topic of criminal history was beyond the scope

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of the first appeal’s limited remand. See United States v. Hop- per, 11 F.4th 561, 563, 570–71 (7th Cir. 2021) (“Hopper II”). Applying plain-error review, we concluded in Hopper II that the remand was limited, but we rejected the rest of the defendant’s argument. We held that “in fashioning an indi- vidualized sentence” on remand, a court “may consider inter- vening events that alter the assessment of factors made at the earlier sentencing.” Id. at 573. Because the “statutory scheme reflects the congressional realization that district courts sen- tence and resentence real persons in real time,” it “places no barrier on the district court’s consideration of developments that have occurred after the original sentencing that are rele- vant to the sentencing process.” Id. We emphasized that such events may include not only “intervening conviction[s]” but also things like “[p]roof of significant rehabilitation.” Id. In other words, reconsideration of criminal history on remand may redound to the benefit of a defendant, not just to her dis- advantage. Id. The sequence of events at issue in Hopper II resembles the one now before us in every relevant respect. Carnell nonethe- less attempts to distinguish Hopper II on the ground that here, but not there, the first appeal directly addressed criminal his- tory. He suggests that by “referencing a Guidelines range that included a criminal history category III, Carnell [I] conclu- sively decided that Mr. Carnell had a criminal history cate- gory III.” The problem is that Carnell I did not mention “a criminal history category III.” As we already have said, its only reference to criminal history was a passing allusion to “increases and decreases for criminal history and acceptance of responsibility” in its account of the first guideline range

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calculation. 972 F.3d at 935. That is hardly enough to settle the issue. Carnell also urges that Hopper II is fundamentally irrecon- cilable with other decisions of this court, chiefly United States v. Husband, 312 F.3d 247 (7th Cir. 2002). Carnell reads Husband to have held that the court’s silence on an issue implies that the issue is not available for consideration upon remand. But Husband did not say that. It addressed two narrow situations: first, when an issue “could have been but was not raised on appeal”; and second, when an issue was “conclusively de- cided by this court on the first appeal.” Id. at 251. Neither fits the facts here, where the issue of Carnell’s new convictions arose for the first time on remand. Husband itself acknowl- edged that “[i]ssues that arise anew on remand are generally within the scope of the remand.” Id. at 251 n.4. In light of Hop- per II, we thus find no error (plain or otherwise) in the district court’s recalculation of Carnell’s criminal-history category. B We can be brief with Carnell’s second point, which chal- lenges the district court’s decision to order that his federal sentence run consecutively to “any sentence imposed in any pending felony charges in … St. Clair County, Illinois.” As we have explained, Carnell was facing two such charges at the time of his resentencing. Both those pending charges have now been dismissed. The government conceded at oral argu- ment that if additional charges related to the same conduct are filed at a later date, those charges would be “new” charges, not “pending” charges of the sort contemplated by the district court’s order. Accordingly, the consecutive-sen- tence issue is moot; no charge is presently “pending” against Carnell in St. Clair County and no future charge would

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qualify as “pending.” See Qureshi v. Gonzales, 442 F.3d 985, 988 (7th Cir. 2006) (discussing mootness). Our holding on this point should be welcome news to Car- nell. We cannot, of course, tell the Illinois courts what to do. If Carnell is convicted in St. Clair County down the road, it will be up to the state courts to decide whether to run any resulting sentence concurrently or consecutively to his federal sentence. But as far as the federal courts are concerned, the district court’s order has run its course. III The judgment of the district court is AFFIRMED.