                              NONPRECEDENTIAL DISPOSITION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
                                                                  Appeal from the United
UNITED STATES OF AMERICA,                                         States District Court for the
      Plaintiff-Appellee,                                         Northern District of Illinois,
                                                                  Eastern Division.
                v.
                                                                  No. 05 CR 107
DAVID E. MALONE ,                                                 Elaine E. Bucklo, Judge.
      Defendant-Appellant.



                                                 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                                                               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
