NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 3, 2008
Decided September 16, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 07-3405 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 02 CR 398
RANDY VELLEFF , Joan Humphrey Lefkow,
Defendant-Appellant. Judge.
Order
Randy Velleff has been convicted of several charges related to robbery, the distribu-
tion of drugs, and firearms offenses. The jury convicted him of five crimes and also
found, in a special verdict, that he had conspired to distribute more than five kilograms
of cocaine. That set the maximum penalty at life in prison, see 21 U.S.C. §841(b)(1)(A),
and as a career offender Velleff is subject to the statutory requirement that the actual
penalty be “at or near the maximum term”. 28 U.S.C. §994(h). The district court sen-
tenced Velleff to 430 months’ imprisonment.
His first appeal led to a remand for resentencing, because the district court had acted
before United States v. Booker, 543 U.S. 220 (2005), established the advisory character of
the Sentencing Guidelines. On remand, the district judge sentenced him to 300 months’
imprisonment, and Velleff has appealed a second time.
His principal arguments on appeal concern the validity of his convictions. These ar-
guments were forfeited by their omission from the first appeal. Our remand was lim-
ited to resentencing; such a remand does not entitle a litigant to raise novel arguments.
The district court must stick to the scope of the remand. See, e.g., United States v. Swan-
son, 483 F.3d 509, 515 (7th Cir. 2006); United States v. Husband, 312 F.3d 247, 250–51 (7th
Cir. 2002); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996). The remand in this
No. 07-3405 Page 2
case covers only the length of imprisonment in light of Booker, not whether each charge
states an offense or some counts are multiplicitous.
Velleff attempts to avoid these rules by arguing that the charge failed to state an of-
fense, a problem that he characterizes as “jurisdictional.” It is not. See United States v.
Cotton, 535 U.S. 625 (2002). The district court had subject-matter jurisdiction under 18
U.S.C. §3231, which authorizes district courts to resolve all criminal charges arising un-
der the laws of the United States. Errors or omissions in the indictment, and shortfalls in
the proof, do not affect the court’s subject-matter jurisdiction. See United States v. Mar-
tin, 147 F.3d 529 (7th Cir. 1997). (Not that any of the arguments now advanced has
merit; Velleff should not think that he can do better by contending that his lawyer on
the first appeal furnished ineffective assistance.)
The sentence of 300 months is 120 months below the bottom of the Guideline range.
Velleff maintains that the district judge should not have treated him as a career of-
fender, but he meets the requirements of U.S.S.G. §4B1.1. That his current drug crime is
conspiracy to distribute, rather than a completed distribution, is not material under
§4B1.1(a)(2), which treats inchoate and completed drug offenses identically. The district
court may have taken the inchoate nature of the current drug crime into account when
imposing a sentence ten years below the bottom of the guideline range. Velleff also
contends that the judge was free to disregard the jury’s special verdict, but that’s
wrong. See United States v. Rivera, 411 F.3d 864 (7th Cir. 2005). This sentence cannot be
called unreasonably high, given the substantial discretion that district judges possess
after Booker. See, e.g., Gall v. United States, 128 S. Ct. 586 (2007); Rita v. United States, 127
S. Ct. 2456 (2007); United States v. Wallace, 531 F.3d 504 (7th Cir. 2008).
AFFIRMED