United States of America v. Scott A. Carnell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2135
U NITED STATES OF A MERICA ,
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.
____________________
A RGUED MARCH 30, 2022 — D ECIDED J UNE 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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2 No. 21-2135
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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No. 21-2135 3
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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4 No. 21-2135
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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No. 21-2135 5
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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6 No. 21-2135
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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No. 21-2135 7
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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8 No. 21-2135
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.

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