                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 03-3078
UNITED STATES OF AMERICA,
                                                  Plaintiff-Appellee,
                                  v.

ELIZABETH R. ROACH,
                                             Defendant-Appellant.

                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 00 CR 411—Matthew F. Kennelly, Judge.
                           ____________
     SUBMITTED JANUARY 9, 2004*—DECIDED JUNE 24, 2004
                      ____________




    Before POSNER, EVANS, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. In this successive appeal we
consider for the second time the propriety of Elizabeth R.
Roach’s sentence for her conviction for wire fraud. Roach
contends that our remand order vacating the district court’s
sentence permitted the court to consider additional evidence


*
  We have concluded, after an examination of the briefs and the
record, that oral argument is unnecessary. The appeal is, there-
fore, submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2                                               No. 03-3078

regarding the vacated downward departure for diminished
capacity. Therefore, she reasons, the district court erred at
the resentencing hearing when it did not allow expert
testimony regarding her state of mind at the time she
committed the charged offense. We disagree. For the
reasons stated below, we affirm.


                    I. BACKGROUND
  We assume familiarity with the general facts of this case
as set forth in United States v. Roach, 296 F.3d 565 (7th
Cir. 2002) (Roach I). We will repeat only those facts perti-
nent to this appeal. Roach pled guilty to wire fraud in
violation of 18 U.S.C. § 1343, for knowingly executing a
scheme to defraud her employer of more than $240,000. The
scheme involved padding her expenses, submitting false
expense reports, requesting reimbursement for conferences
that she registered for but did not attend, resubmitting
expense reports that were already paid, and falsely labeling
personal expenses as business expenses. She used the
embezzled funds to repay credit card debts that she accrued
from excessive purchases of jewelry and clothes.
   In Roach I, the district court concluded, and we agreed,
that Roach suffers from chronic depression and turned to
what her doctors described as compulsive shopping to re-
lieve that depression. Her actions caused enormous strain
on her marriage as she consistently engaged in behavior to
hide her shopping binges from her husband. For years, she
underwent psychiatric therapy for her depression and
shopping disorder.


A. The Original Sentence and First Appeal
  At Roach’s original sentencing hearing, the district court
granted her motion for a downward departure based on
No. 03-3078                                                     3

diminished capacity pursuant to U.S.S.G. § 5K2.13.1 As ex-
plained in detail in Roach I, absent the downward depar-
ture, Roach would have been required to serve a minimum
of 12 months in prison. See Roach I, 296 F.3d at 567. The
court sentenced Roach to five years of probation, six weeks
of work release at the Salvation Army Center, six weeks of
home confinement with weekend electronic monitoring, and
prohibited her from obtaining credit cards without the
court’s prior permission.
  On appeal in Roach I, 296 F.3d at 571, we held that the
record lacked sufficient evidence to conclude that Roach
suffered from a significantly impaired mental capacity
when she committed the offense. Accordingly, we found that
the district court abused its discretion in granting the
downward departure and we remanded her case for resen-
tencing consistent with our ruling. Id. at 573.


B. The Resentencing
  The district court, over the government’s objections,
granted Roach’s motion for leave to file a renewed motion
for downward departure. Roach intended to use expert wit-
nesses to prove that her mental capacity was significantly
impaired at the time she committed the offense. Prior to the
admission of any evidence, the government filed a motion to
reconsider based on supplemental authority, in light of
United States v. Sumner, 325 F.3d 884 (7th Cir. 2003). In
granting the government’s motion, Judge Kennelly opined
that under Sumner:


1
  Section 5K2.13 provides in pertinent part: “A sentence below
the applicable guideline range may be warranted if (1) the
defendant committed the offense while suffering from a signifi-
cantly reduced mental capacity; and (2) the significantly reduced
mental capacity contributed substantially to the commission of the
offense.”
4                                                No. 03-3078

    if a sentencing factor or departure motion is fully
    litigated in the district court, and the district
    court’s ruling is reversed due to insufficiency of
    the evidence supporting the ruling, then the party
    bearing the burden of proof is not entitled to an
    opportunity to correct the defect on remand, absent
    a showing of special circumstances justifying such
    an opportunity.
Mem. Op. & Order at 7. After granting the government’s
motion, the district court sentenced Roach, without the
downward departure, to 12 months and one day of impris-
onment. Roach appeals, arguing that the district court
should have allowed her to supplement the record with ad-
ditional evidence regarding her mental capacity.


                     II. DISCUSSION
  Roach’s contention that the district court erred in not
fully revisiting the issue of her mental capacity at the time
she committed her offense is a question of law that we re-
view de novo. United States v. Husband, 312 F.3d 247, 251
(7th Cir. 2002).
  Roach’s insistence that our remand order subjected her
resentencing to a “clean slate,” and, therefore, a rehearing
on her request for a downward departure, is incorrect. The
“clean slate” analogy, like the parallel “unbundling of the
sentencing package” analogy, refers to a district court’s
ability to restructure sentences after part or all of the sen-
tence is severed or vacated. See United States v. Polland, 56
F.3d 776, 778-79 (7th Cir. 1995) (vacating a sentence re-
sults in a “clean slate” for the district court to resentence);
United States v. Noble, 299 F.3d 907, 910 (7th Cir. 2002)
(Noble II) (“[I]t is settled that after the appellate court va-
cates the sentence on a particular count, the district court
on remand may adjust the entire sentencing ‘package.’ ”).
These concepts allow a district court to effectuate its orig-
No. 03-3078                                                  5

inal sentencing intent, see United States v. Binford, 108
F.3d 723, 728-29 (7th Cir. 1997), but they do not permit the
district court to reopen fully heard issues anew. We ar-
ticulated this limit in United States v. Wyss, 147 F.3d 631
(7th Cir. 1998), where we precluded the government from
presenting additional evidence on an enhancement during
the resentencing hearing, stating: “The government was
entitled to only one opportunity to present evidence on the
issue.” Id. at 633; see also United States v. Noble, No. 03-
2088, 2004 WL 943541, at *1 (7th Cir. May 4, 2004) (Noble
III) (holding that “the government is not permitted on
remand to try again and submit new evidence in a belated
effort to carry its burden.”); United States v. Leonzo, 50 F.3d
1086, 1088 (D.C. Cir. 1995) (holding that the government
should not get a “second bite at the apple” after remand, as
the government bore the burdens of production and persua-
sion). But see United States v. Matthews, 278 F.3d 880, 889
(9th Cir. 2002) (en banc) (holding that a district court can
generally consider additional evidence for remanded
sentencing guidelines issues). We clarified in Sumner, 325
F.3d at 888, however, that this limit is not absolute, as
there is a “difference between an issue that was fully
explored at the initial sentencing hearing and one that
received no attention, but was nonetheless reviewed on
appeal under the plain error standard.” In the latter case it
may be appropriate to admit additional evidence, whereas
if an issue has been fully explored, the party bearing the
burden of proof should be precluded from presenting
additional evidence. See id. at 889.
  Here, the district court rightly declined to allow Roach to
supplement the record at her resentencing, as Roach’s
mental capacity was fully explored at her initial sentencing
hearing. In fact, the record demonstrates both that the
government objected to the application of the downward
departure and that Roach presented evidence in support of
her contention that she was significantly impaired at the
6                                              No. 03-3078

time she committed the offense. Indeed, Roach submitted
three doctors’ statements, her binge shopping history, and
the activities surrounding those binges in her attempt to
persuade the court that she qualified for the downward
departure. In Wyss and Noble III, we held that the govern-
ment fully explored the sentencing enhancement issue after
submitting testimony to prove drug quantity. Wyss, 147
F.3d at 633 (presenting defendant’s testimony); Noble III,
2004 WL 943541, at *1 (presenting government witness’s
testimony). And, just as in those cases, we find that Roach
was not entitled to a second bite at the apple on remand.
  Although this is our first application of the Wyss rule to
defendants, Roach, correctly, does not argue that the rule
should apply to the government but not to defendants. Just
as the government has the burden when seeking a sentence
enhancement, United States v. Sienkowski, 359 F.3d 463,
466 (7th Cir. 2004), Roach had the burden of establishing
that she was entitled to a downward departure. See United
States v. Chavez-Chavez, 213 F.3d 420, 422 (7th Cir. 2000)
(noting that the defendant bears the burden when seeking
a downward departure). When either party fails to meet its
burden to prove a guidelines’ sentencing departure or en-
hancement, it cannot use the opportunity of a remand to
supplement the record in its favor.


                   III. CONCLUSION
  For the reasons stated above, the judgment of the district
court is AFFIRMED.
No. 03-3078                                          7

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—6-24-04
