United States v. William Conour, 16-1698

Background

William Conour, a former attorney, pleaded guilty to wire fraud for stealing settlement proceeds from clients over many years, converting about $4.5 million.
At initial sentencing the district court applied enhancements (vulnerable victims; sophisticated means), denied other adjustments, gave a 3-level acceptance reduction, and sentenced Conour to 120 months imprisonment plus one year supervised release and over $6M restitution.
Conour appealed; the parties jointly requested a Thompson remand and this court granted resentencing in light of United States v. Thompson.
On remand Conour proceeded pro se, submitted a resentencing memorandum raising both previously litigated issues and new factual challenges (e.g., zero loss, fewer victims, no abuse of trust, no restitution), and sought dismissal and bond; the district court denied dismissal and bond.
The district judge believed the Thompson remand was limited and declined to revisit prior guideline rulings or entertain the new arguments; the judge resentenced Conour to 10 years imprisonment but eliminated supervised release.
The court also failed to invite Conour to allocute before imposing sentence; allocution occurred only after the sentence was pronounced and was not accompanied by any indication the judge would reconsider the sentence.

Issues

Issue	Plaintiff's Argument (United States)	Defendant's Argument (Conour)	Held
Scope of Thompson remand	Remand did not require full resentencing; parties sought limited relief	Remand permitted full resentencing; court may reconsider whole case	Court: Thompson remand allows full resentencing; judge erred in thinking he lacked discretion to revisit prior rulings
Waiver of new arguments	Conour waived collateral issues by not raising them earlier; law of the case bars relitigation	New arguments can be heard on Thompson remand, even if not previously raised	Court: District court should have discretion to entertain new arguments on remand; error to refuse without merit-based consideration
Harmlessness of district court’s refusal	Any error about scope was harmless because judge would not have changed sentence and arguments lacked merit	Refusal prevented consideration of factual disputes (e.g., loss amount) that could affect guidelines	Court: Error not harmless—record does not show judge would have rejected arguments on the merits; remand required
Right to allocute	Conour had opportunities to speak; post-sentence allocution cured any defect	Conour was entitled to be invited to allocute before sentence; post-sentence allocution without reconsideration is insufficient	Court: Denial of pre-sentence allocution was plain error and prejudicial; remand for resentencing required

Key Cases Cited

United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) (remand principles governing resentencing)
United States v. Mobley, 833 F.3d 797 (7th Cir. 2016) (Thompson remand permits full resentencing; allocution revived on remand)
United States v. Lewis, 842 F.3d 467 (7th Cir. 2016) (harmless-error treatment where court reconsidered new arguments on merits)
United States v. Locke, 643 F.3d 235 (7th Cir. 2011) (loss-amount is a factual inquiry for sentencing)
United States v. Barnhart, 599 F.3d 737 (7th Cir. 2010) (factual findings govern loss calculations)
United States v. Barnes, 948 F.2d 325 (7th Cir. 1991) (allocution is a personal right separate from counsel)
Green v. United States, 365 U.S. 301 (U.S. 1961) (allocution and the defendant’s personal right to speak at sentencing)
United States v. Luepke, 495 F.3d 443 (7th Cir. 2007) (prejudice presumed if allocution is denied before sentencing unless court effectively reopens sentence)
Johnson v. United States, 520 U.S. 461 (U.S. 1997) (standard for correcting errors that affect substantial rights)
United States v. Noel, 581 F.3d 490 (7th Cir. 2009) (circumstances where allocution error did not warrant remand)
United States v. Pitre, 504 F.3d 657 (7th Cir. 2007) (allocution in revocation context and when remand is unnecessary)
United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (allocution’s broader rehabilitative and informational functions)
United States v. Tova-Pina, 713 F.3d 1143 (7th Cir. 2013) (standards for reassignment of case on remand)

Vacated and remanded for resentencing to allow full reconsideration and to permit pre-sentence allocution.