United States v. Bryant, Sheldon , 168 F. App'x 742 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 17, 2006*
Decided February 23, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1497
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 4:03CR40069-001-JPG
SHELDON BRYANT,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
In August 2005 we denied a motion by Sheldon Bryant’s appointed counsel to
withdraw under Anders v. California, 386 U.S. 738 (1967). Bryant had pleaded
guilty to conspiracy to possess and distribute crack, 21 U.S.C. §§ 846, 841(a)(1), and
was sentenced to 132 months’ imprisonment. In our order, we held that there was a
nonfrivolous issue for appeal: the sentencing judge assessed Bryant a criminal
history point for a 1994 firearms conviction even though he was under age eighteen
at the time and did not meet the criteria of U.S.S.G. § 4A1.2(d) for counting juvenile
offenses. Counsel felt that the conviction was significant only insofar as it
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-1497 Page 2
precluded “safety valve” relief, 18 U.S.C. § 3553(f); U.S.S.G. §§ 5C1.2, 2D1.1(b)(7),
and that because other factors also stood in the way any error would be harmless.
We pointed out, however, that the error also bumped Bryant from criminal history
category I to category II, which carried a higher sentencing range. Bryant’s
sentence of 132 months fell within both ranges, but the district judge did not state
that he would have imposed the same sentence without the extra point; and
anyway, a misapplication of the guidelines after United States v. Booker, 543 U.S.
220 (2005), is still a reversible error, United States v. Scott, 405 F.3d 615, 617 (7th
Cir. 2005), and can be even under plain error review, United States v. Baretz, 411
F.3d 867, 877 (7th Cir. 2005).
Bryant’s counsel has now submitted a merits brief pressing these points, and
the government concedes the error: the juvenile conviction should not have been
counted, and therefore the district court should have considered the lower guideline
range when imposing sentence. See United States v. Spears, 159 F.3d 1081, 1088
(7th Cir. 1998); United States v. Croom, 50 F.3d 433, 435 (7th Cir. 1995). We
therefore VACATE the sentence and REMAND for resentencing—although we note
that the district court is free to impose the same sentence if it wishes.