May 18, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 2:14-cr-00231-JPS-1 - J. P.
BAUER, Easterbrook, and SYKES, Circuit Judges.
December 12, 2014, Jason Tyson was indicted on one count of
being a felon in possession of a firearm. He pleaded guilty
on September 4, 2015, and the district court accepted the
plea the same day. The plea agreement included a stipulation
that, pursuant to § 2K2.1(a)(2) of the United States
Sentencing Commission Guidelines, the applicable base offense
level was 24. The parties stipulated to that base level
because Tyson had a prior federal conviction for possession
of heroin, as well as a prior Wisconsin state conviction for
burglary. The parties agreed the burglary constituted a
"crime of violence" under the Guidelines.
See U.S.S.G. §2K2.1(a)(2).
March 2, 2016, the United States Probation Office prepared
its revised Presentence Investigation Report, which also
identified Tyson's burglary conviction as a crime of
violence. The PSR recommended a two-level enhancement because
the firearm involved in the current conviction was stolen,
and a three-level reduction for acceptance of responsibility,
for a total offense-level recommendation of 23. Combined with
his category VI criminal history, the PSR recommended a
Guidelines range of 92 to 115 months' imprisonment. In
his written response to the PSR, Tyson objected to the
two-level stolen firearm enhancement, but did not object to
the characterization of his burglary as a crime of violence.
was sentenced on May 6, 2016. At the hearing, both Tyson and
the government agreed that the PSR's calculation of the
offense level was accurate. The court stated that it had no
reason to disagree with or challenge any of the findings or
calculations in the PSR, and adopted the Guidelines range
recommendation of 92 to 115 months' imprisonment.
Tyson's counsel argued for a sentence of 48 months, while
the government recommended a sentence of 77 months.
court noted that Tyson was sincere in his regret for his
actions, and while acknowledging the dangerousness of the
crime, stated that the Guidelines were "a bit off the
chart or off the reservation" as applied to Tyson's
situation. The court stated that this was particularly true
in light of Tyson's state and federal supervision that
would be revoked as a result of the firearm conviction. The
court also acknowledged, however, that there must be a level
of accountability and consequences for Tyson's conduct.
Ultimately, the court sentenced Tyson to 50 months'
imprisonment, followed by a three-year term of supervised
release. Tyson timely appealed his sentence.
argues that he is entitled to resentencing because his
Wisconsin burglary conviction does not qualify as a
"crime of violence" as contemplated by the
Sentencing Guidelines, and therefore, the court set the
incorrect base offense level for his Guidelines calculation.
Indeed, shortly after Tyson's sentencing, we held that
because the Wisconsin burglary statute covers a "greater
swath of conduct" than the elements of the Guidelines
offense, it cannot serve as a predicate offense under §
2K2.l(a). United States v. Edwards, 836 F.3d 831,
838 (7th Cir. 2016).
did not raise this argument before the district court and
stipulated to the accuracy of the Guidelines range in his
plea agreement and at the sentencing hearing. Under those
circumstances, we would typically hold that the Tyson has
waived the argument, thus barring our review of the issue.
See, e.g., United States v. Fuentes, 858 F.3d 1119,
1120-21 (7th Cir. 2017). In its brief before this Court,
however, the government does not discuss waiver and contends
only that Tyson forfeited the argument in the district court.
Therefore, the government has waived any waiver defense it
may have had. United States v. Waldrip, 859 F.3d
446, 450 (7th Cir. 2017). Accordingly, we treat the argument
as forfeited and review for plain error. See
the plain error standard, we will reverse a sentence only if
the following conditions are met: (1) there was an error; (2)
the error is plain; (3) there is a reasonable probability
that the error affected the defendant's substantial
rights, meaning the outcome would have been different but for
the error; and (4) the error "seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Molina-Martinez v. United States,
136 S.Ct. 1338, 1343 (2016) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
first two conditions have been met here because, after
Edwards, it was plain error for the court to use
Tyson's Wisconsin burglary conviction as a predicate to
set the base offense level under § 2K2.l(a) of the
Guidelines. Edwards, 836 F.3d at 838. There is also
support for Tyson's contention that he satisfies the
third condition. In Molina-Martinez, the Supreme
Court held that "[w]hen a defendant is sentenced under
an incorrect Guidelines range-whether or not the ultimate
sentence falls within the correct range-the error itself can,
and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error."
136 S.Ct. at 1345. For our purposes here, we can assume,
without deciding, that the error affected Tyson's
substantial rights because he was sentenced under an
incorrect Guidelines range.
Olano made clear, however, that does not end our
inquiry. We will only exercise our discretion to find
reversible plain error "in those circumstances in which
a miscarriage of justice would otherwise result." 507
U.S. at 736 (citation omitted). No such circumstances exist
here. The parties agree that, after the base offense level is
adjusted appropriately, the correct Guidelines range would
have been 63 to 78 months' imprisonment. The court
sentenced Tyson to 50 months-13 ...