Argued September 15, 2014
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cr-30239-- G. Patrick Murphy, Judge.
For United States of America, Plaintiff -- Appellee: Monica A. Stump, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL.
For Jevon M. Jenkins, also known as: TWIN, Defendant - Appellant: Peter W. Henderson, Attorney, John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.
Before FLAUM, KANNE, and SYKES, Circuit Judges.
Kanne, Circuit Judge
In 2011, Jevon Jenkins pled guilty in Illinois state court to one felony count of Aggravated Unlawful Use of a Weapon (" AUUW" ), in violation of 720 ILCS 5/24-1.6(a)(1). He received a sentence of probation. Following Jenkins's conviction, both this court and the Supreme Court of Illinois held the portion of the AUUW statute under which he was convicted to be facially unconstitutional.
In October of 2013, Jenkins pled guilty in United States District Court to one count of aiding and abetting a kidnapping, in violation of 18 U.S.C. § § 1201(a)(1) and (2) and received a federal sentence of 168 months.
In Jenkins's federal presentence report, the probation officer recommended three criminal history points due to the prior Illinois AUUW conviction. The district court adopted those findings and assessed a resultant criminal history category of III. The district court determined that this category, combined with Jenkins's offense level of thirty-three, resulted in a sentencing range of 168-210 months.
In this federal appeal, Jenkins argues that the district court erred when it assessed three criminal history points based on Illinois's constitutionally invalidated AUUW statute. Jenkins argues that he should have been assessed only one criminal history point and a criminal history category of I, which would have resulted in a sentencing range of 135-168 months. Because the criminal history points assessed by the district court were plainly erroneous, we vacate and remand for resentencing.
A. Facts and Procedural History
In July 2012, Jevon Jenkins (" Jenkins" ), his brother Antwon Jenkins (" Antwon" ), and several other individuals participated in the kidnapping of victim Amir Hunt. Antwon claimed that Hunt had stolen money and an Xbox video gaming console from his home in Cahokia, Illinois. In an attempt to recover the purportedly stolen property, Antwon lured Hunt to a residence in East St. Louis, Illinois. There, the perpetrators attempted to force a confession from Hunt by severely beating him and threatening to further injure or kill him. The victim insisted that he had not stolen the property.
Antwon and several other participants eventually placed Hunt into Antwon's truck and transported him into Missouri. Antwon twice stopped the truck and threatened to kill Hunt if he did not turn over the items. During the second stop, Antwon ordered Hunt out of the truck and instructed him to lie on his stomach, so that he could be shot. Hunt instead fled into a nearby wooded area. A Missouri State Highway Patrolman later found him severely injured on the side of the road. The allegedly stolen property was found later that day at Antwon's residence in Cahokia.
Jenkins was indicted by a federal grand jury and charged that he " did unlawfully seize, confine, inveigle, kidnap, abduct, or carry away, and hold for ransom or reward or otherwise, [Hunt] and did wilfully ...