The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2071
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PATRICK S. MCGUIRE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 14-CR-30148-NJR-1 — Nancy J. Rosenstengel, Judge.
____________________
ARGUED MAY 24, 2016 — DECIDED AUGUST 30, 2016
____________________
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 § 4B1.1(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. § 4B1.1(a) (2014). “Crime of violence” is defined in
§ 4B1.2 and includes “any offense … that … is burglary of a
2 No. 15-2071
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 convic-
tions 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 statu-
tory 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 miscalcula-
tion 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
No. 15-2071 3
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 sub-
stantially 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 ar-
guments in mitigation, they certainly don’t call
for anything below the [G]uidelines range.
And I’m actually a little surprised that the gov-
ernment 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
1 The judge’s assessment was based primarily on McGuire’s extensive
criminal history: Over the past three decades, he had been found guilty
of more than 50 offenses, including 15 felonies.
4 No. 15-2071
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) and seriously impugning the fairness,
integrity, or public reputation of the judicial proceedings.”
Id. at 1097 (quotation marks omitted).
In Johnson the Supreme Court invalidated the residual
clause in the Armed Career Criminal Act as unconstitution-
ally vague. 135 S. Ct. at 2563. The residual clause in the
career-offender guideline is identical. The government
agrees that Johnson’s holding applies to § 4B1.2(a)(2)’s resid-
ual clause and therefore confesses error in McGuire’s case.
In our recent decision in United States v. Hurlburt,
No. 14-3611, we accepted the government’s concession and
overruled our circuit precedent in United States v. Tichenor,
683 F.3d 358 (7th Cir. 2012), which held that the Sentencing
Guidelines are immune from vagueness challenges. Slip op.
at *3, 17 (7th Cir. Aug. 29, 2016) (en banc). Applying Johnson,
we held that the residual clause in the career-offender
guideline is unconstitutionally vague. 2 Id.
Hurlburt resolves the central issue in this case. Relying on
an unconstitutional guideline to calculate McGuire’s Guide-
lines range is plain error. See Henderson v. United States,
133 S. Ct. 1121, 1130 (2013) (explaining that “whether a legal
question was settled or unsettled at the time of trial, ‘it is
enough that an error be plain at the time of appellate consid-
2 The Sentencing Commission amended the career-offender guideline to
remove the residual clause in light of Johnson v. United States, 135 S. Ct.
2551 (2015); the amendment became effective August 1, 2016. See 81 Fed.
Reg. 4741, 4742 (2016).
No. 15-2071 5
eration’” (quoting Johnson v. United States, 520 U.S. 461, 468
(1997))).
The question remains whether the Johnson error “affected
[McGuire’s] substantial rights.” United States v. Goodwin,
717 F.3d 511, 520 (7th Cir. 2013). To satisfy the prejudice
requirement of plain-error review, a defendant typically
must “‘show a reasonable probability that, but for the error,’
the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76,
82 (2004)). “When a defendant is sentenced under an incor-
rect Guidelines range[,] … the error itself can, and most often
will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Id. at 1345 (emphasis
added).
There’s no question that McGuire was sentenced under
an incorrect Guidelines range: Without the career-offender
enhancement, McGuire’s range drops from 151–188 months
to 63–78 months. That’s obviously a substantial difference,
and McGuire asks us to remand for full resentencing. Here’s
where the parties’ positions diverge. The government argues
that in light of the judge’s comments at sentencing, it’s
unclear whether she would have chosen a different sentence
had she properly calculated McGuire’s Guidelines range.
Specifically, the judge noted that she was “actually a little
surprised that the government isn’t seeking the statutory
maximum in this case because … they would have all the
argument for why that is appropriate.” The government
urges us to order a limited remand similar to the procedure
we adopted in United States v. Paladino, 401 F.3d 471 (7th Cir.
2005).
6 No. 15-2071
The Paladino remand was devised in the wake of United
States v. Booker, 543 U.S. 220 (2005), to determine whether a
sentencing judge’s misunderstanding of the Guidelines’
legal effect implicated the defendant’s substantial rights—in
other words, whether the judge would have imposed a
different sentence had he known that the Guidelines were
merely advisory. Paladino, 401 F.3d at 483. In holding that a
limited remand was the appropriate remedy, we empha-
sized the unique circumstances that necessitated this solu-
tion. We explained:
[U]nless any of the judges in the cases before
us had said in sentencing a defendant pre-
Booker that he would have given the same sen-
tence even if the [G]uidelines were merely ad-
visory … , it is impossible for a reviewing court
to determine—without consulting the sentencing
judge … —whether the judge would have done
that.
Id. at 482. Accordingly, we fashioned a limited-remand
procedure “to permit the sentencing judge to determine
whether he would (if required to resentence) reimpose his
original sentence.” Id. at 484.
Consistent with its origins, a Paladino remand is generally
not appropriate when the judge’s sentencing error involves a
miscalculation of the defendant’s Guidelines range as op-
posed to a misunderstanding of the Sentencing Guidelines’
legal effect. United States v. Williams, 742 F.3d 304, 307 (7th
Cir. 2014); see also United States v. Adams, 746 F.3d 734, 743
(7th Cir. 2014). “When a district court incorrectly calculates
the [G]uideline[s] range, we normally presume the improp-
erly calculated [G]uideline[s] range influenced the judge’s
No. 15-2071 7
choice of sentence, unless he says otherwise.” Adams,
746 F.3d at 743. That presumption follows naturally from the
Guidelines’ centrality to the sentencing process: “The Guide-
lines inform and instruct the district court’s determination of
an appropriate sentence. In the usual case then, the systemic
function of the selected Guidelines range will affect the
sentence.” Molina-Martinez, 136 S. Ct. at 1346.
Of course the presumption can be overcome. See id. (“The
sentencing process is particular to each defendant, of course,
and a reviewing court must consider the facts and circum-
stances of the case before it.”). We have sometimes ordered a
Paladino-style limited remand in cases involving miscalcula-
tion of the defendant’s Guidelines range when the sentence
imposed fell either within or below the correct range, creat-
ing ambiguity about whether the miscalculation actually
affected the defendant’s sentence. See United States v. Max-
well, 724 F.3d 724, 728–29 (7th Cir. 2013); United States v.
Billian, 600 F.3d 791, 794–95 (7th Cir. 2010). But it remains
“[o]ur normal practice … to presume that the improperly
calculated [G]uidelines range influenced the choice of sen-
tence unless the judge said otherwise at sentencing.”
Williams, 742 F.3d at 307.
McGuire’s sentence (188 months) falls far above the cor-
rect range (63–78 months), so there’s no ambiguity on that
front. And the judge did note that she was surprised the
government had not requested the statutory maximum of
20 years. However, she also explicitly cited McGuire’s
(miscalculated) Guidelines range to justify the 188-month
sentence: “[I]f I look at the [G]uidelines … as I must, I think
a high end sentence … will be sufficient.” On this record we
see no reason to depart from the usual presumption that the
8 No. 15-2071
judge’s miscalculation of McGuire’s Guidelines range influ-
enced her choice of sentence. And to the extent that the
miscalculation resulted in a higher Guidelines range, it
seriously affected the integrity of the proceedings. See United
States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008).
Accordingly, we VACATE McGuire’s sentence and
REMAND for full resentencing.
No. 15‐2071 9
HAMILTON, Circuit Judge, concurring. While I dissented in
United States v. Hurlburt, No. 14‐3611, — F.3d — (7th Cir. 2016)
(en banc), it is now the law of the circuit. As Judge Sykes ex‐
plains, it requires a remand in this case for re‐sentencing. On
remand, however, the district judge will have the power and
the right to impose the same sentence she did in the first place.
See Hurlburt, slip op. at 25–26, — F.3d at — (Hamilton, J., dis‐
senting). The advice from the Sentencing Guidelines will be
different on remand, but that should not necessarily change
the judgeʹs assessment of the relevant sentencing factors un‐
der 18 U.S.C. § 3553(a). In particular, the criminal history pro‐
visions in the Guidelines have always been somewhat arbi‐
trary. (For example, a defendant receives the same three
points for a bar fight that produced a fourteen‐month sen‐
tence and a first‐degree murder conviction. See U.S.S.G.
§ 4A1.1.) That’s why the Guidelines have always encouraged
departures on the basis that a defendant’s guideline calcula‐
tion of criminal history is under‐ or over‐representative.
U.S.S.G. § 4A1.3. On remand, the judge needs to exercise her
judgment under § 3553(a).