May 24, 2016
from the United States District Court for the Southern
District of Illinois. No. 14-CR-30148-NJR-1 - Nancy J.
Rovner, Sykes, and Hamilton, Circuit Judges
McGuire pleaded guilty to a single count of interfering with
commerce by threat or violence. At sentencing the district
court classified McGuire as a career offender under §
4Bl.l(a) of the Sentencing Guidelines, which increases the
offense level if the defendant has two prior felony
convictions for a "crime of violence." U.S.S.G.
§ 4Bl.l(a) (2014). "Crime of violence" is
defined in § 4B1.2 and includes "any offense ...
that ... is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another." Id. § 4B1.2(a)(2) (emphasis added).
The emphasized text is known as the residual clause.
district judge counted two of McGuire's prior convictions
as crimes of violence, one of which-a conviction for fleeing
the police-qualified only under the residual clause. With the
career-offender enhancement in the mix, McGuire's
Guidelines range increased from 63-78 months to 151-188
months. Citing McGuire's extensive criminal history, the
judge imposed a 188-month sentence. In doing so she noted her
surprise that the government hadn't asked for the
statutory maximum sentence of 20 years.
appeals, arguing that in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), the residual clause in
the career-offender guideline is unconstitutionally vague.
The government agrees and confesses error. In a recent
decision circulated to the full court under Circuit Rule
40(e), we also agreed and invalidated §
4B1.2(a)(2)'s residual clause as unconstitutionally
vague. United States v. Hurlburt, No. 14-3611 (7th
Cir. Aug. 29, 2016) (en banc).
Hurlburt here, McGuire was wrongly classified as a
career offender. As in most cases involving miscalculation of
a defendant's Guidelines range, that error warrants full
pleaded guilty to one count of interfering with commerce by
threat or violence, which carries a 20-year maximum sentence.
See 18 U.S.C. § 1951. At sentencing the judge
classified McGuire as a career offender based on two prior
felony convictions for crimes of violence. See
U.S.S.G. § 4B1.1. As relevant here, one of the
predicates for the career-offender enhancement-a conviction
for fleeing the police- qualified under the residual clause
of the crime-of-violence definition in § 4B1.2(a)(2).
Applying the enhancement substantially increased
McGuire's Guidelines sentencing range, which jumped from
63-78 months to 151-188 months.
government asked for a sentence at the high end of the range,
and the judge agreed that McGuire's extensive criminal
history warranted at least that:
But, if anything, I think all of the defense arguments in
mitigation, they certainly don't call for anything below
the [G]uidelines range. And I'm actually a little
surprised that the government isn't seeking the statutory
maximum in this case because I think they would have all the
argument for why that is appropriate.
judge sentenced McGuire to 188 months in prison and 3 years
of supervised release.
argues that the residual clause in the career-offender
guideline is unconstitutionally vague in light of the Supreme
Court's decision in Johnson. Ordinarily our
review would be de novo. United States v. Boatman,786 F.3d 590, 593 (7th Cir. 2015). But McGuire did not raise
this challenge at sentencing, so plain-error review applies
instead. United States v. Jenkins,772 F.3d 1092,
1096 (7th Cir. 2014). That standard requires McGuire to
establish "(1) an error or defect (2) that is clear or
obvious (3) affecting the defendant's substantial rights