Appeal from the United States District Court for the Western District of Wisconsin. No. 06 CR 102-John C. Shabaz, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge.
Before BAUER, POSNER and WILLIAMS, Circuit Judges.
Garrett challenges the district court's calculation of his criminal history score under the United States Sentencing Guidelines, arguing that the court erred when it included his prior conviction for bail jumping in its assessment of his criminal history. In this appeal, we consider the issue of whether a state conviction for bail jumping is "similar to" the offense of contempt of court under the Sentencing Guidelines, which would result in the exclusion of the conviction from a defendant's criminal history score. We find that it is, and for reasons set forth below, we vacate the district court's decision to include Garrett's bail jumping conviction and remand for resentencing.
In May of 2006, a federal grand jury indicted Garrett on five counts relating to the distribution of crack cocaine. Garrett pleaded guilty to Count Two of the indictment, distribution of five or more grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and the remaining counts were dismissed pursuant to Garrett's plea agreement. A probation officer prepared the presentence investigation report ("PSR"), which determined that Garrett distributed between 500 and 1500 grams of crack cocaine, thus setting his base offense level at thirty-six under U.S.S.G. § 2D1.1(c)(2). After a three-level reduction for acceptance of responsibility, this yielded a total offense level of thirty-three. Garrett received four criminal history points, which included one point for a 2003 conviction in Wisconsin for operating a vehicle without carrying a license and bail jumping (for which he received a fine) pursuant to U.S.S.G. § 4A1.1(c). This conviction raised Garrett's criminal history from Category II (151 to 188 months) to Category III (168 to 210 months).
On October 25, 2006, at the sentencing hearing, the district court was presented with the PSR's findings. After Garrett stated that he had no objections, the court accepted the plea agreement. After considering the extent and gravity of Garrett's criminal record and the factors set forth in 18 U.S.C. § 3553(a) (but without any discussion of the calculation of Garrett's criminal history points), the court adopted the PSR's Guidelines calculation and concluded that a sentence in the middle of the Guide- lines range would provide both deterrence and punishment, stating that:
Common sense suggests to this Court that you should be sentenced at the top of the guideline range, but out of deference to your family and friends the Court has balanced what you could have been instead of what you turned out to be and has given you a sentence at the middle of the guideline range, and I do so reluctantly because you're the type of people that has to be kept off the streets.
The court then sentenced Garrett to 189 months in prison. Garrett timely appealed. On May 11, 2007, Garrett's counsel moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), identifying one potential non-frivolous argument-whether the district court erred by including the bail jumping conviction in Garrett's criminal history score. We denied the motion, see United States v. Garrett, No. 06-3982 (7th Cir. October 31, 2007) (unpublished order), concluding that it would not be frivolous for counsel to address whether the district court overstated Garrett's criminal history score by assessing one point for the bail jumping conviction.
Garrett asserts that the district court plainly erred in its assessment of his criminal history points, because the offense of bail jumping under state law is "similar to" contempt of court under U.S.S.G. § 4A1.2(c)(1)(B) and thus warrants exclusion from his criminal history score. Garrett argues that his substantial rights were affected because without the inclusion of this conviction, his Guideline range would have been 151 to 188 months. The government concedes the district court plainly erred in including the bail jumping conviction, but argues that Garrett cannot show that the error impacted the fairness, integrity or public reputation of the judicial proceedings.
Normally we review a district court's application of the Sentencing Guidelines de novo. United States v. Samuels, 521 F.3d 804, 815 (7th Cir. 2008). Howeverboth parties agree that our review is for plain error because Garrett forfeited his argument when he failed to raise it before the district court. Forfeiture occurs because of neglect, while waiver happens intentionally. United States v. Charles, 476 F.3d 492, 495 (7th Cir. 2007). Waiver precludes review, while forfeiture permits plain error review. Id. While Garrett failed to timely assert his challenge to the assessment of a criminal history point for his bail jumping conviction, there is no indication on the record that Garrett knew that his criminal history score might be erroneous, nor would he choose to be sentenced under a higher criminal history score and thus a higher Guidelines range. A logical explanation is that neither Garrett nor his counsel realized that including the bail jumping conviction was incorrect, therefore we review for plain error. See United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005) (holding that a defendant's confirmation of a PSR's findings does not waive a challenge on appeal where there is no conceivable strategic reason for not objecting to a sentence at a higher offense level). Under the plain error test, we must decide whether there was an error, whether it was plain, and whether it affected substantial rights. United States v. Sawyer, 521 F.3d 792, 796 (7th Cir. 2008). If all three conditions are met, we may exercise our discretion only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.
When sentencing a defendant, the first step is to calculate the Guidelines range correctly, and a mistake in that calculation warrants resentencing. United States v. Hawk, 434 F.3d 959, 963 (7th Cir. 2006); See United State v. Thomas, No. 05-4222, ___ F.3d ___, 2008 WL 755297, at *5 (7th Cir. Mar. 24, 2008) (holding that even though the Guidelines are advisory, a district court must accurately calculate and consult the defendant's Guidelines range). A sentence based on an incorrect Guideline range constitutes an error affecting substantial rights and can thus constitute plain error, which requires us to remand unless we have reason to believe that the error did not affect the district court's selection of a particular sentence. United States v. Wallace, 32 F.3d 1171, 1174 (7th Cir. 1994).
The Sentencing Guidelines factor a defendant's prior criminal history into his sentence in an effort to penalize recidivist behavior, protect the public, and deter individuals from criminal behavior. 18 U.S.C. § 3553(a); United States v. Lock, 466 F.3d 594, 599 (7th Cir. 2006). Section 4A1.1 of the Guidelines sets forth point totals for a defendant's prior sentences, and the sum of those points determines a defendant's criminal history category. A district court counts all felonies as prior sentences, U.S.S.G. § 4A1.2(c), and misdemeanor and petty offenses are generally counted, except as provided in §§ 4A1.2(c)(1) and 4A1.2(c)(2). As relevant here, § 4A1.2(c)(1) provides that fifteen listed offenses, including contempt of court, and "offenses similar to them, by whatever name they are known, are counted ...