United States of America v. David E. Malone

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).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-3295 Page 2
does not and left all of the remaining sentences in place.
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

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