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United States v. McGuire

United States Court of Appeals, Seventh Circuit

August 30, 2016

United States of America, Plain tiff-Appellee,
v.
Patrick S. McGuire, Defendant-Appellant.

          Argued May 24, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 14-CR-30148-NJR-1 - Nancy J. Rosenstengel, Judge.

          Before Rovner, Sykes, and Hamilton, Circuit Judges

          Sykes, Circuit Judge.

         Patrick 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.

         The 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.

         McGuire 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).

         Applying 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 resentencing.

         I. Background

         McGuire 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.

         The 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.[1]

         The judge sentenced McGuire to 188 months in prison and 3 years of supervised release.

         II. Discussion

         McGuire 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 (4) ...


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