In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3818
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD W. S IMMS, II,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08 CR 86—Charles N. Clevert, Jr., Judge.
S UBMITTED JUNE 18, 2013—D ECIDED JULY 3, 2013
Before E ASTERBROOK, Chief Judge, and P OSNER and
T INDER, Circuit Judges.
P OSNER, Circuit Judge. This appeal is successive to an
appeal that we decided two years ago, in United States
v. Simms, II, 626 F.3d 966 (7th Cir. 2010). The defendant
had pleaded guilty to gun and drug offenses and been
sentenced to a total of 270 months in prison—240 months
for those offenses (of which 180 months was the manda-
tory minimum sentence for the gun offense because in
2 No. 12-3818
combination with his three previous “serious drug
offense[s]” it made him an armed career criminal, 18
U.S.C. § 924(e)(1))—plus 30 months for having violated
the terms of supervised release that had been imposed
for a previous drug offense. His appeal raised both
Fourth Amendment and sentencing issues. Our decision
affirmed the conviction but vacated the sentence and
remanded for resentencing. We said that the judge had
erred “in two minor respects. There may be no need
for another sentencing hearing.” 626 F.3d at 971.
His first error had been to make the sentence of
30 months that he was imposing for the defendant’s
violation of the terms of supervised release run consecu-
tively to the sentences that he was imposing for the
new crimes that the defendant had been convicted of, the
crimes for which the judge was imposing a total sentence
of 240 months. The judge reasoned that if the defendant
succeeded on appeal in overturning his gun or drug
sentence, his aggregate punishment might be insuf-
ficient given the gravity of his crimes. But this meant that
if those sentences were affirmed on appeal, the defendant
would end up with a heavier overall sentence (270
months) than the judge intended to impose. For all that
he had intended by making the sentence for violation of
the terms of supervised release consecutive was to
ensure that the defendant not serve fewer than 240
months in total.
The judge’s second error wasn’t an error in the sen-
tence imposed but rather a clerical error that created
confusion over whether that was the sentence he
No. 12-3818 3
actually intended. He had begun with the mandatory
minimum sentence for the gun offense—180 months—and
had then added 60 months because otherwise the de-
fendant would be punished only for the gun offense,
the source of the 180 months. He explained that “addi-
tional time [beyond 180 months] was necessary . . . in
light of the defendant’s long career as a criminal
starting from the time he was very youthful. So that is
why I made the other counts consecutive to count two.”
The result was a total sentence of 240 months (180 + 60)
apart from the judge’s mistaken imposition of a consecu-
tive sentence for violation of the terms of supervised
release.
The 240-month sentence exceeded by five months
the top of the applicable guidelines range of 188 to
235 months, and we were unsure whether the judge
knew he was sentencing above the range. For in the
“Statement of Reasons” for the sentence, required by 18
U.S.C. § 3553(c), he had checked both the box that said
“the court imposes a sentence outside the advisory sen-
tencing guideline system” and the box that said “the
sentence imposed is . . . below the advisory guideline
range”—which of course it was not. We thought that
the second checkmark probably had been an error.
Yet out of an abundance of caution we decided—wisely
as it has turned out—to order a limited remand to
enable the judge to advise us whether he wanted to
resentence the defendant within or outside the range. See
United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005).
But we rejected the defendant’s argument that the
judge had given excessive weight to the defendant’s
4 No. 12-3818
criminal history, which was extensive; and while it
also figured in the calculation of the guidelines range,
a judge is permitted to give more weight to criminal
history than the guidelines do—this is implicit in the
guidelines’ demotion by the Booker decision to merely
advisory status. United States v. Aljabari, 626 F.3d 940,
951 (7th Cir. 2010); United States v. Williams, 517 F.3d
801, 809 (5th Cir. 2008). Nor did we agree with the de-
fendant that the judge had ignored the sentencing
factors in 18 U.S.C. § 3553(a). We concluded by saying
that “the sentences must be corrected to make the
sentence for violation of supervised release run concur-
rently with the other sentences; and the judge is to in-
form us whether he wants to resentence the defendant to
a sentence within the applicable guidelines range. In all
other respects the judgment is A FFIRMED.” 626 F.3d at 973.
The judge responded that he hadn’t wanted to sen-
tence the defendant outside the guidelines range, so we
ordered the case remanded for resentencing. On
remand the judge held a hearing at the conclusion of
which he sentenced the defendant to 230 months—a
sentence the length of which was based solely on the
gun and drug offenses since we had ordered the
prison sentence for the violation of the terms of super-
vised release to run concurrently with the rest of the
defendant’s sentence. The overall sentence thus was
five months short of the top of the guidelines range.
The judge explained that he was reducing the sen-
tence from 240 months (his previous sentence minus the
consecutive sentence of 30 months for violation of super-
No. 12-3818 5
vised release) to 230 rather than 235 months (the latter
being the top of the applicable guidelines range) because
at the hearing on remand he had learned for the first
time of the defendant’s cooperation with law enforce-
ment, which he thought merited a modest sentencing
discount.
The judge’s new sentence was in conformity with
our order remanding for resentencing. So clear is this
that there would be nothing more for us to say except
“affirmed” were it not for the defendant’s insistence
that a remand for resentencing always requires the
district judge to resentence “from scratch,” that is to say,
as if the new sentence were to be the first sentence.
We should distinguish among three types of remand,
two limited and a general one. In the more limited of
the two types of limited remand the appellate court seeks
a ruling or advice from the trial court and pending
its receipt of that ruling or advice retains jurisdiction
over the appeal. E.g., United States v. Taylor, 509 F.3d 839,
845-46 (7th Cir. 2007); United States v. Alburay, 415 F.3d
782, 786 (7th Cir. 2005); United States v. Paladino, supra,
401 F.3d at 483-84. In a second type of limited remand
the appellate court returns the case to the trial court
but with instructions to make a ruling or other deter-
mination on a specific issue or issues and do nothing else.
See United States v. Polland, 56 F.3d 776, 778 (7th Cir. 1995),
and cases cited there. Finally, in a general remand the
appellate court returns the case to the trial court for
further proceedings consistent with the appellate court’s
decision, but consistency with that decision is the only
6 No. 12-3818
limitation imposed by the appellate court. The general
remand is the most common form of remand.
Our order of remand in this case was limited in form
but general in substance. We remanded to allow the
district judge to sentence the defendant within the guide-
lines range, as we learned the judge had intended to do.
All he had to do was make the sentence for violation of
the terms of supervised release concurrent and reduce
the 240-month sentence for the gun and drug offenses
by at least five months. He didn’t have to conduct a
new sentencing hearing and listen to new arguments.
At the same time, however, we did not tell him not to
conduct such a hearing, and consequently the remand
was general, as in United States v. Young, 66 F.3d 830, 835-
36 (7th Cir. 1995), where we said that “our order in no
way constrained the scope of the issues the district
court could consider on resentencing; rather, it simply
directed the district court to adhere to our command that
its quantity calculation reflect the amount of marijuana,
by weight, for which Mr. Young was accountable.” The
district judge in our case conducted a hearing and as a
result decided to reduce the defendant’s sentence by
ten months rather than five.
The defendant’s lawyer refuses to recognize the propri-
ety of a trial judge’s being given latitude by the appel-
late court with regard to the scope of resentencing. He
argues that a resentencing must always be, in his terminol-
ogy, “from scratch.” What is true is that vacating a part
of a sentence may justify or even require a new sen-
tencing hearing rather than just subtraction of the
No. 12-3818 7
vacated sentence from the defendant’s overall sentence.
Suppose for example that a defendant’s overall sen-
tence had been 40 years, consisting of two consecutive
sentences each of 20 years; the defendant was 30 years old
when sentenced; and the judge decided that 40 years
was a long enough sentence for this defendant
because he’d be harmless by the time he was 70. Cf. 18
U.S.C. § 3553(a)(2)(C); United States v. Johnson, 685 F.3d 660,
661-62 (7th Cir. 2012); United States v. Bullion, 466 F.3d 574,
576-77 (7th Cir. 2006). Suppose that 20 of those 40 years
of the overall sentence were attributable to the sentence
that the appellate court had ordered vacated. The judge
might decide that a 20-year sentence—all that would
remain if he simply subtracted the vacated sentence—was
too short, because released at age 50 the defendant
would still be dangerous. Assuming that the maximum
term of the sentence that had not been vacated exceeded
20 years, the judge would be justified in increasing
that sentence.
This case isn’t like that. Remember that the 30-
month sentence for violation of supervised release, the
sentence we ordered vacated, had not been intended by
the judge to extend the defendant’s overall sentence
beyond 240 months, but merely to maintain that sen-
tence (if possible) in the event that other parts of the
overall sentence fell out. As far as the 240-month sentence
was concerned, we did not vacate any part of it; we
just wanted to make sure that the judge had intended
to give it, which was unclear because of his checking
both boxes on the “Statement of Reasons” form. He could
just have said in response to our inquiry “I meant to
8 No. 12-3818
go above the top of the guidelines range,” and then the
240-month sentence would have stood. Or he could just
have said “I mean to stay within the range,” and cut the
sentence to 235 months. In neither case would a further
sentencing hearing have been required, or indeed have
served any purpose. Instead the judge conducted a brief
hearing that led him to give the defendant a slight addi-
tional break. This procedure and the sentence that re-
sulted were entirely consistent with our order of remand.
A FFIRMED.
7-3-13