At page 528 A party cannot use the accident of a remand to raise in a second appeal an issue which could just as well have been raised in the first appeal because the remand did not affect it. · 42 citing cases
- Amy Sullivan v. Flora, Inc., 63 F.4th 1130 (7th Cir. 2023). (If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.)
- Cloutier v. GOJET Airlines, LLC, No. 1:16-cv-01146 (N.D. Ill. Jan. 3, 2022).(If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.)
- United States v. Jason Nebinger, 987 F.3d 734 (7th Cir. 2021).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Luce, No. 1:11-cv-05158 (N.D. Ill. July 10, 2019).(If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.)
- United States v. Booker Sewell, No. 17-3108 (7th Cir. Mar. 22, 2018).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal … .)
- United States v. Sylvester Purham, 667 F. App'x 552 (7th Cir. 2016).(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 w…)
- Williams v. People, 64 V.I. 618 (2016).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- Recontrust Co. v. Zhang, 130 Nev. 1 (Nev. 2014). (A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal. . . .)
- Rawlins v. People, 59 V.I. 1069 (2013).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Terrence Vance, No. 12-3707 (7th Cir. Aug. 20, 2013).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
Show 32 more citing cases
- United States v. Jesus Tello, No. 10-2677 (7th Cir. Oct. 17, 2012).(If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.)
- United States v. Barnes, 660 F.3d 1000 (7th Cir. 2011). (A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Javier Hernandez, No. 08-3829 (7th Cir. Sept. 28, 2010).(If the opinion identifies a discrete, particular error that can be corrected on remand without the need for redetermination of other issues, the district court is limited to correcting that error.)
- United States v. Jaime Andrade, 376 F. App'x 600 (7th Cir. 2010). (A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Schroeder, 536 F.3d 746 (7th Cir. 2008). ([T]he scope of the remand is determined not by formula, but by inference from the opinion as a whole.)
- Avello, Nicholas T. v. SEC, No. 05-2850 (7th Cir. July 21, 2006).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first No. 05-2850 13 appeal because the remand did not affect it.)
- Avello, Nicholas T. v. SEC, No. 05-2850 (7th Cir. May 26, 2006).(A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Sumner, Thomas J., No. 02-1335 (7th Cir. Apr. 8, 2003).(A party cannot use the accident of a remand to raise in a second appeal an issue that [she] could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Eunice Husband, 312 F.3d 247 (7th Cir. 2002). (A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal.)
- United States v. Husband, Eunice, No. 01-4082 (7th Cir. Nov. 4, 2002). (A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal.)
- United States v. Salvador Acosta, 129 F.3d 1268 (7th Cir. 1997). (Any issue not arising out of th[e] correction could have been raised in the original appeal and was therefore waived by not being raised then.)
- United States v. Ticchiarelli, 171 F.3d 24 (1st Cir. 1999). (A party cannot use the accident of a remand to raise in a second appeal an issue which could just as well have been raised in the first appeal because the remand did not affect it.)
- United States v. Garza, 127 F.4th 954 (5th Cir. 2025).See, e.g., United States v. Ticchiarelli, 171 F.3d 24 , 32–33 (1st Cir. 1999); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996); United States v. Whren, 111 F.3d 956, 960 (D.C.
- Anderson v. Raymond Corp., No. 3:19-cv-00800 (S.D. Ill. Oct. 27, 2023).The Court quoted United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
- Blue Mountain Homes, LLC v. Page, 526 P.3d 648 (Haw. App. 2023).Light Co. (HELCO), 149 Hawai#i 239, 241- 42, 487 P.3d 708, 710-11 (2021) ("[T]he scope of remand is determined 'not by formula, but by inference from the opinion as a whole.'" (quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1…
- Eddie Bradley v. Vill. of Univ. Park, Illinois, 59 F.4th 887 (7th Cir. 2023).Whether a particular issue is within or outside the scope of remand is “determined not by formula,” Husband, 312 F.3d at 251 , quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996), but through careful examination of the prior…
- United States v. John Buncich, 20 F.4th 1167 (7th Cir. 2021).United States v. Adams, 746 F.3d 734, 745 (7th Cir. 2014), quoting United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
- In re: Hawai'i Elec. Light Co., Inc., 487 P.3d 708 (Haw. 2021).This blinkered approach is unreasonable given that the scope of remand is determined “not by formula, but by inference from the opinion as a whole.” United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
- Young v. Act Fast Delivery of West Virginia, Inc., No. 5:16-cv-09788 (S.D.W. Va Apr. 10, 2020).Parties are “not permitted to ‘use the accident of remand to raise . . . an issue that [they] could just as well have raised in the first appeal.’” United States v. Pileggi, 703 F.3d 675, 680 (4th Cir. 2013) (quoting United States v. Parke…
- United States v. Gwendolyn Jackson, No. 17-3350 (7th Cir. Nov. 26, 2018).An additional hearing is not required.” Al‐ buray, 415 F.3d at 788 (citing United States v. Maro, 272 F.3d 817, 825 (7th Cir. 2001); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996)).
- United States v. Jason Guidry, No. 17-3166 (7th Cir. Sept. 21, 2018).And in any event, we explicitly remanded Guidry’s case for reconsideration of specified conditions of supervised release, so “the district court [was] limited to correcting that error.” See United States v. Parker, 101 F.3d 527, 528 (7th C…
- United States v. Calvin Sanders, 690 F. App'x 427 (7th Cir. 2017).“a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error”
- United States v. Lisa Lewis, No. 16-1401 (7th Cir. Nov. 16, 2016).If our opinion “identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.” United States v. Parker, 101 F.3d 527,…
- United States v. Lewis, 842 F.3d 467 (7th Cir. 2016).If our opinion “identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error.” United States v. Parker, 101 F.3d 527,…
- United States v. David Crisp, Jr., 820 F.3d 910 (7th Cir. 2016).(A party cannot use the accident of a remand to raise in a *913 second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.)
- United States v. Timothy Durham, 630 F. App'x 634 (7th Cir. 2016).“If this [cjourt remands to correct a ‘discrete, particular error that can be corrected ... without ... a rede-termination of other issues, the district court is limited to correcting that error.’ ” United States v. Barnes, 660 F.3d 1000,…
- United States v. Harold Perkins, 563 F. App'x 492 (7th Cir. 2014).United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996).
- United States v. Montarico Johnson, 756 F.3d 532 (7th Cir. 2014).See United States v. Baker, No. 13-1641, 755 F.3d 515, 523-25 , 2014 WL 2736016, at *6 (7th Cir. June 17, 2014); Alburay, 415 F.3d at 788 ; United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996).
- United States v. Tommy Adams, 746 F.3d 734 (7th Cir. 2014). He should not be able to “use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.” 6 United States v. Parker, 101 F.3d 527, 528 (7th…
- United States v. Raymond Martin, No. 12-3835 (7th Cir. Feb. 6, 2014).See United States v. Peel, 668 F.3d 506, 507 (7th Cir. 2012); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
- United States v. Martin, 554 F. App'x 515 (7th Cir. 2014).See United States v. Peel, 668 F.3d 506, 507 (7th Cir.2012); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996).
- United States v. Carlos Vigneri, No. 13-1294 (7th Cir. Jan. 17, 2014).See United States v. Longstreet, 669 F.3d 834, 838 (7th Cir. 2012); United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
v.
Clinton S. PARKER, Also Known as Spanky, Defendant-Appellant
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[*528] 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 re-sentenced 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 nondis-cretionary 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 (7th Cir.1995); United States v. Atkinson, 15 F.3d 715, 718-19 (7th Cir.1994); United States v. Atkinson, 979 F.2d 1219, 1223 (7th Cir.1992); United States v. Barnes, 948 F.2d 325, 330 (7th Cir.1991). That would not be a correct interpretation or result. As made clear in United States v. Polland, supra, the scope of the remand is determined not by formula, but by inference from the opinion as a whole. If the opinion identifies a discrete, particular error that can be corrected on remand without the need for a redetermination of other issues, the district court is limited to correcting that error. A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it. The sentencing issues that Parker wishes to raise in this second appeal were not affected by the error in the obstruction of justice enhancement that necessitated the remand. They are therefore waived.
The Anders motion is granted and the appeal dismissed.