On appeal from The United States District Court for the Southern District of Illinois ">

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Date: 11-14-2021

Case Style:

United States of America v. Rex A. Hopper

Case Number: 20-1162

Judge: Kenneth Francis Ripple

Court: United States Court of Appeals For the Seventh Circuit
On appeal from The United States District Court for the Southern District of Illinois

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

Chicago, IL - Criminal defense Lawyer Directory


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‐
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
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
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
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
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
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
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.
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
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.
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
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
(b) Add 2 points for each prior sentence of im‐
prisonment of at least sixty days not counted in
(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
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
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‐
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.

Outcome: For the reasons set forth in the foregoing opinion, the
judgment of the district court is affirmed.

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