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IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 15-1686
)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
)
)
)
v.
)
Appeal from the United States
District Court for the Western
District of Wisconsin
Case No. 14-cr-00106-wmc
)
JOSHUA GILLESPIE,
Defendant-Appellant.
)
)
Honorable William M. Conley
Presiding
)
BRIEF OF PLAINTIFF-APPELLEE
John W. Vaudreuil
United States Attorney
Western District of Wisconsin
Rita M. Rumbelow (lead counsel)
Assistant U.S. Attorney
Suite 700
222 W. Washington Avenue
Madison, WI 53703
(608) 264-5158
TTY (608) 264-5006
Attorneys for Plaintiff-Appellee
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IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 15-1686
)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
)
)
)
v.
)
Appeal from the United States
District Court for the Western
District of Wisconsin
Case No. 14-cr-00106-wmc
)
JOSHUA GILLESPIE,
Defendant-Appellant.
)
)
Honorable William M. Conley
Presiding
)
BRIEF OF PLAINTIFF-APPELLEE
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................................. ii
JURISDICTIONAL STATEMENT .................................................................................. 1
STATEMENT OF THE ISSUE ......................................................................................... 2
STATEMENT OF THE CASE.......................................................................................... 3
SUMMARY OF ARGUMENT ......................................................................................... 7
ARGUMENT ..................................................................................................................... 8
I.
The Government Agrees That Johnson’s Vagueness Holding Applies In
This Guidelines Case But Only A Limited Remand Is Required At This
Time To Determine Whether Defendant Should Be Resentenced ................. 8
A.
Standard of Review .................................................................................... 8
B.
Discussion .................................................................................................... 8
CONCLUSION ................................................................................................................ 17
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TABLE OF AUTHORITIES
Page(s)
Descamps v. United States, 133 S. Ct. 2276 (2013) ................................................... 14, 15
Gall v. United States, 552 U.S. 38 (2007) ........................................................................ 11
Henderson v. United States, 133 S. Ct. 1121 (2013) ......................................................... 8
Irizarry v. United States, 553 U.S. 708 (2008) .......................................................... 12, 13
James v. United States, 550 U.S. 192 (2007) ...................................................................... 9
Johnson v. United States, 135 S. Ct. 2551 (2015) ..................................................... passim
Peugh v. United States, 133 S. Ct. 2072 (2013) ................................................... 11, 13, 14
Sykes v. United States, 131 S. Ct. 2267 (2011) .................................................. 4, 9, 10, 14
United States v. Alphas, 785 F.3d 775 (1st Cir. 2015) .................................................... 12
United States v. Batchelder, 442 U.S. 114 (1979) ............................................................ 13
United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) ....................................... 12
United States v. Booker, 125 S. Ct. 738 (2005) ................................................................ 15
United States v. Booker, 543 U.S. 220 (2005) .................................................................. 14
United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ................................................... 10
United States v. Brooks, 468 Fed. Appx. 623 (7th Cir. 2012)........................................ 15
United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010) ............................................ 4, 14
United States v. Dominguez-Benitez, 542 U.S. 74 (2004) ................................................. 8
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United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) ................................................... 10
United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) ..................................................... 12
United States v. Kimbrough, 536 F.3d 463 (5th Cir. 2008) ............................................ 13
United States v. Maxwell, 724 F.3d 724 (7th Cir. 2013) ................................................ 16
United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012) .................................................. 11
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) ................................................ 15
United States v. Taylor, 520 F.3d 746 (7th Cir. 2008) .................................................... 16
United States v. Taylor, 630 F.3d 629 (7th Cir. 2010) .................................................... 15
United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) ...................................... 7, 13, 14
United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) ................................................ 10
United States v. Velzquez, 777 F.3d 91 (1st Cir. 2015) .................................................. 10
United States v. Woods, 576 F.3d 400 (7th Cir. 2009) ................................................... 14
RULES
Circuit Rule 28(b) .............................................................................................................. 1
STATUTES
18 U.S.C. § 922(g) .......................................................................................................... 3, 8
18 U.S.C. § 924(e) (Armed Career Criminal Act, ACCA) .................................. passim
18 U.S.C. § 3231 ................................................................................................................. 1
18 U.S.C. § 3553(a) .......................................................................................................... 12
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18 U.S.C. § 3742(a) ............................................................................................................ 1
28 U.S.C. § 1291 ................................................................................................................. 1
SENTENCING GUIDELINES
USSG § 2K1.3 ................................................................................................................... 10
USSG § 2K2.1(a) .......................................................................................................... 4, 10
USSG § 2S1.1 .................................................................................................................... 10
USSG § 4A1.1(e) .............................................................................................................. 10
USSG § 4A1.2(p) .............................................................................................................. 10
USSG § 4B1.1 ..................................................................................................................... 9
USSG § 4B1.2 ............................................................................................................ passim
USSG § 5K2.17 ................................................................................................................. 10
USSG § 7B1.1(a) ............................................................................................................... 10
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JURISDICTIONAL STATEMENT
The jurisdictional statement set forth in appellant’s brief is not complete
and correct. Accordingly, pursuant to Circuit Rule 28(b), the United States
submits the following jurisdictional statement.
I.
District Court Jurisdiction
A.
The district court’s jurisdiction was based on Title 18, United States
Code, Section 3231.
II.
Appellate Court Jurisdiction
A.
This Court’s jurisdiction is based on Title 28, United States Code,
Section 1291, and Title 18, United States Code, Section 3742(a).
B.
Appellant Gillespie was sentenced on March 24, 2015, to 84 months
in prison, followed by a three-year term of supervised release. (R. 25, 27;
Appellant’s Appendix (App.) 1- 7). The judgment was docketed on March 25,
2015. (R. 27; App. 1 – 7).
C.
Gillespie did not file a motion for a new trial, alteration of the
judgment, or any other motion having the effect of tolling which to appeal.
D.
Gillespie filed a timely notice of appeal on March 30, 2015. (R. 30).
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STATEMENT OF THE ISSUE
Whether the district court plainly erred in holding that Wisconsin’s Fleeing
and Eluding statute is a crime of violence under the residual clause of U.S.S.G.
§ 4B1.2, and, if so, whether a limited remand is appropriate to determine whether
defendant should be resentenced.
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STATEMENT OF THE CASE
On October 9, 2014, a grand jury sitting in the Western District of
Wisconsin returned a one-count indictment charging appellant Gillespie with
violating Title 18, United States Code, Section 922(g)(1), as a felon in possession
of a firearm. (R. 1). Gillespie had been arrested on October 8, 2014, after officers
in Beloit, Wisconsin observed what they believed to be a drug transaction. (R. 15,
¶ 8). Gillespie failed to stop when police initiated a traffic stop and he
accelerated his speed. (Id.). Gillespie eventually parked his vehicle and fled on
foot. (Id.). He continued to disobey law enforcement orders and resisted arrest.
(Id.). A struggle ensued and the defendant threw a baggie from his hand. (Id.).
Defendant was arrested and between a search of his person, his vehicle, and the
area where he was subdued, officers recovered a loaded .357 Smith and Wesson
revolver, crack cocaine, two cell phones (one of which was actively scanning
police channels), and a digital scale. (Id.).
Gillespie was interviewed following his arrest and he said he possessed
the firearm for protection. (R. 15, ¶12). He told the arresting officers that he
“loved the game” and was addicted to the drug-dealing lifestyle. (Id.). He said
he did not enjoy working a normal job and that he would rather be charged with
possessing a firearm than being shot. (Id.).
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Gillespie’s criminal history began at the age of 12 and he had 19 criminal
history points, placing him in a criminal history category of VI. (R. 15, ¶¶ 33, 48).
He had previously been convicted of being a felon in possession of a firearm in
2012 and was on probation for that offense in October 2014. (R. 15, ¶ 45).
Appellant Gillespie entered a timely guilty plea on January 13, 2015. (R.
13). The presentence investigation report (PSR) was filed on February 13, 2015.
(R. 15). Paragraph 19 of the PSR recommended a base offense level of 20 under
U.S.S.G. § 2K2.1(a)(4) because appellant Gillespie had a 2010 Wisconsin
conviction for fleeing and eluding, a crime of violence under U.S.S.G. §
4B1.2(a)(2). (R. 15, ¶ 19).1 On March 3, 2015, Gillespie objected to paragraph 19,
claiming Wisconsin’s fleeing and eluding statute was indivisible and therefore
could not categorically be defined as a crime of violence. (R. 18). He did not
argue that the statute or guideline was void for vagueness. (Id.).
Gillespie was sentenced on March 24, 2015. (R. 25, 29). The district court
addressed his objection and held that United States v. Dismuke, 593 F.3d 582 (7th
Cir. 2010), and Sykes v. United States, 131 S. Ct. 2267 (2011), controlled. The
district court then calculated the guideline range, noting that if the enhancement
did not apply, Gillespie’s guideline range would be 51 to 63 months. (R. 29, p. 3;
Section 2K2.1(a)(4) cross-references the definition of crime of violence under the
residual clause of U.S.S.G. § 4B1.2.
1
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App. 10). However, because of the enhancement, the guideline range was 92 –
115 months. (R. 29, p. 5; App. 12). After calculating the guidelines, the district
court stated “That’s an awful lot of, I’m almost inclined to say, gobbledegook.
The guidelines have – they have their problems, including problems that
historically have driven sentences, I think by consensus of Congress, too high.”
(R. 29, p. 6; App. 13).
After hearing comments from counsel and the defendant, the district court
further stated that “I will tell you that the guideline range is not the driver for the
Court now. It’s trying to arrive at an appropriate sentence, given all of the
history of this defendant and given the facts of his offense here.” (R. 29, p. 11;
App. 18). The district court found it “disturbing to think of a young man who’s
boastfully talking about adopting a lifestyle which involves drugs and guns,
which is the kind of combination that is either going to put you in prison for a
very long time –and you’re going to get a longer sentence than you’ve ever had
before today, substantially longer.” (R. 29, p. 13; App. 20).
The district court chose a sentence of 84 months, noting, among other
things, that Gillespie presents a danger to the community because of his current
and past involvement in drug distribution and possession of firearms. (R. 29, pp.
18, 19; App. 1-7; 25-26). The court acknowledged that the sentence would
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disappoint the defendant and the government, commenting that “[s]ometimes
they say that that means maybe I got it right.” (R. 29, p. 22; App. 29). Gillespie’s
term of imprisonment is to be followed by a three-year term of supervised
release. (App. 26). Gillespie filed his timely notice of appeal on March 30, 2015.
(R. 30).
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SUMMARY OF ARGUMENT
The government concedes that Johnson v. United States, 135 S. Ct. 2551
(2015) applies to the identically-worded residual clause definition of crime of
violence in U.S.S.G. § 4B1.2(a)(2). The government agrees with the defendant
that under Johnson, the guidelines’ residual-clause definition of crime of violence
is unconstitutionally vague, and also agrees that the Court should overrule
United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). Assuming this Court
agrees, the resulting error in the guidelines in this case is reviewed for plain
error, because Gillespie did not challenge Wisconsin’s fleeing and eluding statute
on vagueness grounds below.2
In light of the district court’s remarks at sentencing, particularly its
statement that its choice of a sentence was not being driven by the guidelines,
Gillespie is entitled at most to a limited remand to determine if the district court
would choose a different sentence.
At the time of Gillespie’s sentencing, the Supreme Court had granted certiorari in
Johnson and it was first argued on November 5, 2014. Johnson, 135 S. Ct. 2551. Given the
fact that the residual clauses in 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. § 4B1.2(a)(2) are
identical, a similar challenge could have been raised below to avoid plain-error review.
2
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ARGUMENT
I.
The Government Agrees That Johnson’s Vagueness Holding Applies In
This Guidelines Case But Only A Limited Remand Is Required At This
Time To Determine Whether Defendant Should Be Resentenced.
A.
Standard of Review
Because Gillespie did not raise a vagueness challenge below, plain-error
review applies and he has the burden of showing that any Johnson error affected
his substantial rights and seriously affected the fairness, integrity or public
reputation of the judicial proceedings. Henderson v. United States, 133 S. Ct. 1121,
1126-27 (2013). Gillespie can only satisfy that burden if he shows a reasonable
probability that his sentence would be different on remand. United States v.
Dominguez-Benitez, 542 U.S. 74, 81-82 (2004).
B.
Discussion
The Armed Career Criminal Act of 1984 (ACCA) provides for a mandatory
minimum sentence of 15 years of imprisonment for a defendant who violates 18
U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious
drug offense.” 18 U.S.C. § 924(e)(1). In Johnson v. United States, 135 S. Ct. 2551
(2015), the Supreme Court held that ACCA’s residual clause, i.e., the provision
that defines a “violent felony” to include an offense that “involves conduct that
presents a serious potential risk of physical injury to another,” 18 U.S.C.
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§ 924(e)(2)(B)(ii), is impermissibly vague and, therefore, imposing an increased
sentence under the residual clause “violates the Constitution’s guarantee of due
process.”3 See Johnson, 135 S. Ct. at 2563. The Court overruled its decisions in
James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 131 S. Ct.
2267 (2011), which previously rejected the contention of dissenting Justices that
the residual clause was vague. Johnson, 135 S. Ct. at 2563.
The career offender provision of the Sentencing Guidelines provides for
enhanced sentences for certain defendants who have two prior convictions for a
“crime of violence” or “serious drug offense.” Guidelines § 4B1.1. The definition
of “crime of violence” in Guidelines § 4B1.2 contains a residual clause that is
identical to ACCA’s residual clause. See Guidelines § 4B1.2(a)(2) (defining
“crime of violence” to include an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to another”). Because that
identical language is unconstitutionally vague under Johnson, a sentencing court
may not classify a defendant as a career offender based on an offense that
qualifies as a crime of violence under the residual clause.4
The relevant ACCA subsection, in full, defines a “violent felony” as an offense that “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C
§ 924(e)(2)(B)(ii).
4 Johnson’s constitutional holding regarding ACCA’s residual clause also applies to
other guidelines that use the career offender guideline’s definition of “crime of
3
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The career-offender guideline’s residual clause uses the same language
that Johnson held was impermissibly vague because it “produces more
unpredictability and arbitrariness than the Due Process Clause tolerates.” 135 S.
Ct. at 2558. Like other courts of appeals, this Court has held that ACCA’s
residual clause and the guideline’s residual clause must be interpreted in the
same way and has applied decisions interpreting the two provisions
interchangeably. United States v. Griffin, 652 F.3d 793, 802 (7th Cir. 2011) (“the
definition of ‘violent felony’ under the ACCA is the same as the definition of
‘crime of violence’ in section 4B1.2 of the guidelines, and it would be
inappropriate to treat identical texts differently just because of a different
caption”) (internal punctuation marks omitted). See also United States v.
Velázquez, 777 F.3d 91, 94-98 & n.1 (1st Cir. 2015) (interpreting guideline using
“ordinary case” analysis that Johnson found “speculative” and unreliable); United
States v. Travis, 747 F.3d 1312, 1314-1317 & n.2 (11th Cir. 2014) (applying James
and Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185, 1187 &
n.1 (8th Cir. 2014) (court construes ACCA “violent felony” and guidelines “crime
violence.” See Guidelines § 2K1.3 & comment n.2 (explosive materials guideline);
Guidelines § 2K2.1 & comment. n.1 (firearms guideline); Guidelines § 2S1.1 & comment.
n.1 (money laundering guideline); Guidelines §§ 4A1.1(e), 4A1.2(p) (criminal history
guidelines); Guidelines § 5K2.17 & comment. n.1 (departure guideline for semiautomatic firearms); Guidelines § 7B1.1(a)(1) & comment. n.2 (probation and supervised
release guideline).
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of violence” as “interchangeable”); United States v. Meeks, 664 F.3d 1067, 10701072 & n.1 (6th Cir. 2012) (same analysis applies to ACCA and guidelines); The
ACCA cases on which courts have relied to decide whether offenses fall within
the guideline’s residual clause are now overruled, leaving courts with no body of
law to apply. After Johnson, judges attempting to determine whether a particular
offense qualifies as a crime of violence under the residual clause would be forced
to rely on “guesswork and intuition.” Johnson, 135 S. Ct. at 2559.
Application of a vague guideline conflicts with the proper role of the
guidelines in providing a uniform baseline for sentencing. Under the advisory
guidelines system, district courts are still required to “begin all sentencing
proceedings by correctly calculating the applicable Guidelines range” and to use
the guidelines as “the starting point and the initial benchmark” for sentencing.
Gall v. United States, 552 U.S. 38, 49 (2007); see Peugh v. United States, 133 S. Ct.
2072, 2083 (2013) (“That a district court may ultimately sentence a given
defendant outside the Guidelines range does not deprive the Guidelines of force
as the framework for sentencing.”). A district court that incorrectly calculates the
guidelines range is subject to reversal on appeal. Gall, 552 U.S. at 51; see Peugh,
133 S. Ct. at 2083 (“the rule that an incorrect Guidelines calculation is procedural
error ensures that they remain the starting point for every sentencing calculation
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in the federal system”). Accordingly, the use of a vague sentencing guideline to
calculate the defendant’s guidelines range violates due process because it
inevitably leads to unpredictable and arbitrary applications of the legal
framework for sentencing. See Johnson, 135 S. Ct. at 2557.
Consistent with sentencing courts’ discretion to sentence within or outside
the advisory guideline range, the Supreme Court has held that no notice is
required when a court imposes a sentence outside the guideline range based on
the factors in 18 U.S.C. § 3553(a), because defendants no longer have “[a]ny
expectation subject to due process protection” that they will receive a sentence
within the guideline range. Irizarry v. United States, 553 U.S. 708, 713 (2008). But
the guidelines are unlike the broad sentencing factors in Section 3553(a), in that
their function is to provide a precise starting point for sentencing. Courts have
discretion to weigh the Section 3553(a) factors and determine the appropriate
sentence, but they have no discretion about the proper legal interpretation of the
guidelines. This is evidenced by the numerous appellate decisions, involving
appeals brought by defendants and by the government, in which courts have
applied de novo review to questions of guidelines interpretation. See, e.g., United
States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015); United States v. Keys, 785
F.3d 1240, 1242 (8th Cir. 2015); United States v. Alphas, 785 F.3d 775, 780 (1st Cir.
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2015); United States v. Kimbrough, 536 F.3d 463, 465 (5th Cir. 2008). Moreover, the
notice concerns addressed in Irizarry are distinct from the danger of “arbitrary
enforcement by judges” presented by the residual clause. See Johnson, 135 S. Ct.
at 2557; id. at 2556 (Fifth Amendment forbids application of “a criminal law so
vague that it fails to give ordinary people fair notice of the conduct it punishes, or
so standardless that it invites arbitrary enforcement”) (emphasis added).
This Court previously held that guidelines provisions are not subject to
constitutional vagueness challenges because they “do not establish the illegality
of any conduct,” “are directives to judges for their guidance in sentencing
convicted criminals, not to citizens at large,” and merely “assist and limit the
discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358,
363-364 (7th Cir. 2012) (internal quotation marks omitted). But that precedent
predated, and is fatally undermined by, Johnson and Peugh. The Court’s decision
in Tichenor was premised on the view that sentencing provisions are not subject
to vagueness challenges. Johnson rejected that approach, holding that vagueness
principles “apply not only to statutes defining elements of crimes, but also to
statutes fixing sentences.” 135 S. Ct. at 2557 (citing United States v. Batchelder, 442
U.S. 114, 123 (1979)); cf. Tichenor, 683 F.3d at 365 (dismissing “[t]he isolated
comment from Batchelder” as “mere dictum”). Tichenor’s reasoning that the
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guidelines merely structure sentencing courts’ discretion was repudiated by the
Supreme Court’s decision in Peugh, in which the Court held that the Ex Post
Facto Clause applies to advisory guidelines. 133 S. Ct. at 2078. Peugh dismissed
the government’s argument that the guidelines were merely “guideposts” that
lacked “‘the force and effect of laws.’” Id. at 2085-2086 (quoting Booker, 543 U.S.
at 234). The Court identified numerous features of the post-Booker sentencing
system that ensure that the guidelines continue to have “legal force,” id. at 2087,
and serve as the “framework” for sentencing, even when a court ultimately
imposes a sentence outside the guidelines. Id. at 2083-2084. In light of Johnson
and Peugh, the government agrees with Gillespie that this Court’s decision in
Tichenor is no longer valid and should be overruled. See 7th Cir. R. 40(e) (setting
out procedure for overruling circuit precedent without convening full court for
hearing en banc).5
Johnson abrogated Sykes v. United States, 131 S. Ct. 2267 (2011), which found Indiana’s
fleeing and eluding statute was a violent felony under the ACCA’s residual clause. This
Court’s decision in United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010), pertaining to
Wisconsin’s similar statute is, therefore, no longer viable. The government disagrees,
however, with the defendant’s alternative argument that the Wisconsin statute is,
contrary to Dismuke, indivisible. The government also disagrees with the appellant’s
interpretation of state law and restrictive reading of the Supreme Court’s decision in
Descamps v. United States, 133 S. Ct. 2276 (2013), on when and how to apply the modified
categorical approach. (Appellant’s opening brief, pp. 19 – 22). The government
opposes the means versus elements distinction defendant relies on as inconsistent with
Descamps and notes this Court has not endorsed that distinction in analyzing divisible
statutes. See, e.g. United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009)(a statute is
divisible where it “creates several crimes or a single crime with several modes of
5
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However, given the district court’s comments at Gillespie’s sentencing, the
defendant cannot demonstrate that the court would have imposed a lower
sentence, had it known the residual-clause definition of a crime of violence was
void for vagueness. The Court, therefore, should remand for the limited purpose
of clarifying whether the district court would have issued a lower sentence in
this case. See, e.g. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005):
“The only practical way (and it happens also to be the shortest, the easiest, the
quickest, and the surest way) to determine whether the kind of plain error
argued in these cases has actually occurred is to ask the district judge.” The
Court in Paladino continued:
[W]hat an appellate court should do in Booker cases in
which it is difficult for us to determine whether the
error was prejudicial is, while retaining jurisdiction of
the appeal, order a limited remand to permit the
sentencing judge to determine whether he would (if
required to resentence) re-impose his original sentence.
If so, we will affirm the original sentence against a
plain-error challenge provided that the sentence is
reasonable, the standard of appellate review prescribed
by Booker, 125 S. Ct. at 765.
commission. By ‘modes of commission’ we mean modes of conduct identified
somehow in the statute”); United States v. Brooks, 468 Fed. Appx. 623, 627 (7th Cir.
2012)(unpublished), United States v. Taylor, 630 F. 3d 629, 633 (7th Cir. 2010). Although
these cases pre-date Descamps, they are consistent with Descamps’s guidance. In any
event, this Court need not reach this issue if it agrees that Johnson applies and warrants
a limited remand in this case.
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Paladino, 401 F.3d at 484. See also United States v. Maxwell, 724 F.3d 724, 729 (7th
Cir. 2013) (applying limited-remand approach to determine if defendant’s
sentence would be the same under the Fair Sentencing Act); United States v.
Taylor, 520 F.3d 746, 788-799 (7th Cir. 2008) (applying limited-remand approach
for forfeited Kimbrough-type arguments regarding the disparities between crack
and powder cocaine).
On limited remand, should the district court indicate it would have
imposed the same sentence, Gillespie’s 84-month sentence should be affirmed as
reasonable. Only if the district court indicates it would impose a different
sentence will Gillespie be entitled to a remand for full resentencing.
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CONCLUSION
For the foregoing reasons, the government respectfully requests that the
Court order a limited remand to determine whether the district court would
impose a different sentence.
Dated this 14th day of September 2015.
Respectfully submitted,
JOHN W. VAUDREUIL
United States Attorney
By:
/s/
RITA M. RUMBELOW
Assistant U. S. Attorney
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2015, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the
Seventh Circuit by using the CM/ECF system. I certify that all participants in
the case are registered CM/ECF users and that service will be accomplished by
the CM/ECF system.
/s/
SHARON MARTIN
17