U.S. v. Parker

Citation101 F.3d 527
Decision Date02 December 1996
Docket NumberNo. 95-3899,95-3899
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Clinton S. PARKER, also known as Spanky, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Jon E. DeGuilio, Andrew B. Baker, Jr., Office of the U.S. Attorney, Dyer, IN, for plaintiff-appellee.

Willie Harris, Karen M. Freeman-Wilson, Gary, IN, for defendant-appellant.

Clinton S. Parker, pro se.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

POSNER, Chief Judge.

This is the second appeal by Clinton Parker. In his first appeal, we rejected all but one of his claims: that he should not have received an enhancement in his sentence for obstructing justice. We vacated the judgment of the district court and remanded the case for further proceedings consistent with our opinion. 25 F.3d 442 (7th Cir.1994). On remand, the district court resentenced Parker by written order, without a new sentencing hearing. Parker appealed. His lawyer has filed an Anders brief, requesting permission to withdraw as counsel because there is no nonfrivolous ground for an appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The only ground for an appeal identified in the brief is that Parker had a right to be present when he was resentenced, and as the brief explains, there is no such right when as here the case is remanded not for a new sentencing hearing but merely for a nondiscretionary correction of the original sentence. The judge merely dropped the sentence from the lowest point in the guidelines range with a two-level enhancement to the lowest point in the range without the enhancement. The defendant was not required to be present. United States v. Tamayo, 80 F.3d 1514, 1518-20 (11th Cir.1996); United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir.1991); cf. Fed.R.Crim.P. 43(c)(4).

But in response to the Anders brief, the defendant raised a number of other challenges, not all frivolous, to his sentence. If his lawyer could have raised these challenges in this second appeal, the appeal is not frivolous and the Anders motion must be rejected. He could not have. The remand was limited to the enhancement for the obstruction of justice. Only an issue arising out of the correction of the sentence ordered by this court could be raised in a subsequent appeal. Any issue not arising out of that correction could have been raised in the original appeal and was therefore waived by not being raised then. United States v. Polland, 56 F.3d 776, 779 (7th Cir.1995); United States v. Soto, 48 F.3d 1415, 1419 n. 10 (7th Cir.1995).

This point is worth emphasizing because of language in some of our previous cases that might be read to say that a remand limits the issues open to consideration on remand only if the opinion or order directing it so states. United States v. Young, 66 F.3d 830, 836...

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    ...on remand without the need for a redetermination of other issues, the [trial] court is limited correcting that issue.” U.S. v. Parker, 101 F.3d 527, 528 (7th Cir.1996). LaSalle compares this situation to that in In re S & P, Inc. v. Pfeifer et al., 189 B.R. 173 (N.D.Ind.1995). In that case,......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 9, 2002
    ...139 F.3d 528, 530-31 (5th Cir.) (same), cert. denied, 525 U.S. 1056, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (same), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998); United States v. Ticchiarelli, 171 F.3d 24, 32 (......
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    ...or allocated ski areas.There is a need to ensure that CRAs are accurately mapped.R. at CRR2-0000011.3 See United States v. Parker , 101 F.3d 527, 528 (7th Cir. 1996) (remand to address discrete error); Avello v. S.E.C. , 454 F.3d 619, 627 (7th Cir. 2006) (agency voluntarily remanded the cas......
  • Fatir v. Thomas
    • United States
    • U.S. District Court — District of Delaware
    • July 13, 2000
    ...on remand and distinguishing cases in which the resentencing decisions on remand were not discretionary), United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (Posner, C.J.) (concluding that resentencing the defendant by written order without a new sentencing hearing was not error; not......
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  • NEPA's Trajectory: Our Waning Environmental Charter From Nixon to Trump?
    • United States
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    • May 1, 2020
    ...377 F. Supp. 3d 1223, 49 ELR 20044 (D. Colo. 2019) (No. 17-02519). he government invoked the following examples: United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996); Avello v. Securities & Exch. Comm’n, 454 F.3d 619, 627 (7th Cir. 2006); West Virginia v. Environmental Prot. Agency, 3......
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    • Georgetown Law Journal No. 110-Annual Review, August 2022
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    ...to attend resentencing hearing because remand limited to district court explaining reasons for original sentence); U.S. v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (defendant not entitled to attend resentencing hearing because hearing merely nondiscretionary correction of original sentence......

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