USA v. David Malone

Filing 38

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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
Submitted December 19, 2008 Decided January 5, 2009

Before
FRANK H. EASTERBROOK , Chief Judge RICHARD A. POSNER , Circuit Judge TERENCE T. EVANS, Circuit Judge

No. 07-3295
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID E. MALONE , Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 CR 107 Elaine E. Bucklo, Judge.

Order We vacated Malone's conviction for money laundering and remanded so that the district court could consider whether this affected Malone's sentence on the remaining counts. United States v. Malone, 484 F.3d 916 (7th Cir. 2007). The district court held that it

This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

No. 07-3295 does not and left all of the remaining sentences in place.

Page 2

Malone contends, in this successive appeal, that the judge violated the Due Process Clause by resentencing him without a hearing at which he could provide evidence of his rehabilitation while in prison. There are two problems with this argument. First, it was waived. The district judge asked Malone whether he wanted a hearing; Malone replied that he did not. Second, the judge did not "resentence" Malone. The judge set aside the sentence on the vacated count and left the remaining sentences as is. A conclusion that a sentence imposed in 2006 should not be disturbed in 2008 does not require a hearing. AFFIRMED