In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1772
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LAN J. M C N EIL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-CR-236—J.P. Stadtmueller, Judge.
A RGUED F EBRUARY 10, 2009—D ECIDED JULY 21, 2009
Before C UDAHY, W ILLIAMS and T INDER, Circuit Judges.
C UDAHY, Circuit Judge. Alan McNeil was arrested for
being a felon-in-possession of a firearm while he was
on parole from three state convictions. His state parole
was revoked due to the felon-in-possession charge and
he received three new state sentences. The district court
then imposed an 84-month sentence for the felon-in-
possession charge, to run concurrent with two of those
state sentences. It is impossible to tell from the record
whether the third state sentence had been discharged
2 No. 08-1772
when the federal sentence was imposed. Because McNeil
and the government agreed to a recommendation that
McNeil would receive concurrent time with any state
sentence he was serving, the district court erred by not
determining the status of the third state sentence. We
therefore remand McNeil’s sentence for the district court
to supplement the record regarding the status of that
third sentence and to determine whether McNeil should
be resentenced in light of it.
McNeil was arrested on July 18, 2007 when Milwaukee
police officers executed a narcotics search warrant at the
home of McNeil’s girlfriend. That night McNeil told the
officers that he had hidden a pistol in a heating vent at the
home. After obtaining a second search warrant, the officers
found the gun where McNeil told them it would be. In
December 2007, McNeil pleaded guilty to one count of
felon-in-possession, in violation of 18 U.S.C. §§ 922(g),
924(a)(2).
Following his plea, on January 24, 2008, McNeil’s
parole was revoked on one of his prior state convictions,
Case No. 04-CF-1846, and he received an additional
state sentence of three months and one day (hereinafter
the “2004 sentence,” so called because McNeil was con-
victed and received the original sentence for this offense
in 2004). Roughly two weeks later, on February 5, 2008,
McNeil’s parole was revoked on the other two state
convictions, Case Nos. 01-CF-833 and 01-CF-2651, and he
received additional sentences of two years, five months
and four days for each (hereinafter the “2001 sentences”).
Beyond these bits of information, gleaned from the
No. 08-1772 3
Presentence Investigation Report (PSR), the record is
silent in crucial respects. In particular, the record
does not establish whether the 2004 sentence had already
been discharged on the date of McNeil’s federal sentenc-
ing, March 7, 2008. This matters because it appears that
the district court would have ordered the federal sen-
tence to run concurrent with any state sentence McNeil
was serving. If the 2004 sentence had already been dis-
charged, then the court was correct to order the
federal sentence concurrent with only the 2001 sentences;
the court cannot order a sentence to run concurrent with
a nullity, see 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(c). But
if the 2004 sentence had not been discharged, it appears
from the circumstances that the district court would
properly have ordered the federal sentence to run con-
current with all three state sentences. It was incumbent
on the district court to figure this out.
Unfortunately, this issue was not addressed at McNeil’s
federal sentencing hearing. Instead, McNeil urged more
generally in his sentencing memorandum, and the gov-
ernment agreed, that “the Court should impose a sen-
tence to run concurrent to the sentence imposed by the
State of Wisconsin resulting from McNeil’s possession
of the firearm charged in this case.” At sentencing,
McNeil’s attorney reiterated that, “[i]n the memorandum
I had also asked the Court in fashioning a sentence to
consider giving Mr. McNeil concurrent time for the
revocation time that he’s facing.” The government’s
attorney joined the recommendation for concurrent
time, noting that although such a position was unusual
for the government, it reflected the need to provide
4 No. 08-1772
McNeil with an incentive to plead guilty and also re-
warded him for cooperating with law enforcement and
for pleading guilty early in the case. McNeil’s plea agree-
ment memorializes the parties’ joint recommendation
that the federal sentence be ordered concurrent with any
state sentence resulting from McNeil’s gun possession,
and the PSR also states that the government “agrees to
recommend the sentence be concurrent to any sentence
imposed by the State of Wisconsin resulting from the
defendant’s possession of the firearm charged in this
case.” (Emphasis supplied.)
The district court found that McNeil’s guidelines sen-
tencing range was 110 to 137 months, but that it was
capped at 120 months by the ten-year statutory maxi-
mum. 18 U.S.C. §§ 922(g), 924(a)(2). McNeil requested a
reduced sentence of 80 months to reflect his acceptance
of responsibility and his cooperation with police. The
government’s attorney also noted that 110 months, the
guidelines minimum, is “a lot of time . . . a good chunk of
time,” without making any more specific request
regarding the length of the sentence. The court imposed
a sentence of 84 months, to run concurrent with the two
2001 sentences, but did not mention the 2004 sentence.
McNeil’s assistant federal defender did not mention it
either, much less did she address whether it had been
discharged.
In ordering the federal sentence to run concurrent with
only the 2001 sentences, it appears that the district court
relied on the PSR, which stated that McNeil was on
supervised release for only the 2001 sentences at the
No. 08-1772 5
time of his arrest for the felon-in-possession charge. In
particular, the PSR notes that “[t]he defendant’s super-
vision in Case Nos. 01CF833 and 01CF2651 was revoked
for involvement in the instant offense.” This section of
the PSR does not mention the 2004 sentence.1 In a
separate document included in the record on appeal,
entitled “Sentencing Recommendation,” the same proba-
tion officer who prepared the PSR recommended a 137-
month sentence, to run consecutive to the 2001 sen-
tences, again with no mention of the 2004 sentence.
Elsewhere, however, as we have already discussed, the
PSR does list the 2004 conviction and sentence, in the
section on McNeil’s criminal history. This section of the
PSR makes clear that McNeil was released on parole
on October 18, 2005, and that he was still on parole for
all three state convictions when he was arrested for the
felon-in-possession charge at issue here. Again, his
parole was revoked and he was resentenced for the
2004 conviction on January 24, 2008, and for the 2001
1
This section of the PSR also notes that, pursuant to U.S.S.G.
§ 5G1.3, Application Note 3(C), if the defendant was on parole
at the time of the instant offense, and had had that parole
revoked, “it is recommended the sentence for the instant offense
be imposed to run consecutively to the term imposed for the
revocation.” (Emphasis supplied.) The PSR accurately para-
phrases the guidelines application note. Of course, the guide-
lines are advisory only, and the parties agreed to recommend
concurrent, rather than consecutive, time. The district court
therefore was within its discretion in declining to adopt
this aspect of the recommendation.
6 No. 08-1772
convictions on February 5, 2008. The PSR does not specifi-
cally address whether the 2004 sentence was discharged
at the time the federal sentence was imposed. It merely
implies as much by virtue of its recommendation that
the federal sentence be ordered to run consecutive to
only the 2001 sentences. McNeil’s attorney did not object
to this omission from the PSR or request that the proba-
tion officer supplement the record.2 However, the 2004
sentence could have been imposed in a number of ways.
Questions to ask were whether the 2004 sentence was
ordered to commence on the date it was issued, or
whether, although it was issued two weeks prior to the
2001 sentences, it was ordered to run concurrent with
the 2001 sentences, or whether it was to run consecutive
to the 2001 sentences, and if so, whether the 2004
sentence or the 2001 sentences were to be discharged first.3
2
Nor did McNeil’s attorney specifically object to the PSR’s
recommendation that the federal sentence be consecutive to,
rather than concurrent with, the state sentences. It is clear,
however, that McNeil and the government agreed to an order
of concurrent time, which the district court appears to
have adopted.
3
State law does not help us answer these questions. Wisconsin
does not appear to have a rule dictating that sentences
initially ordered to run consecutively must, upon revocation
of parole and resentencing, also be consecutive. See State v.
Carter, 208 Wis.2d 142, 154–55, 560 N.W.2d 256, 261 (Wis. 1997)
(“When a resentencing is required for any reason, the initial
sentence is a nullity; it ceases to exist.”); see also State v.
(continued...)
No. 08-1772 7
Nor does the record indicate whether McNeil received
credit for the state time he had already served by the
date of his revocation hearing and resentencing in
January 2008 (it appears he was in state custody from the
date of his arrest in July 2007). If McNeil received credit
for seven months of state custody (from the July 2007
arrest until the January 2008 state sentencing), then the
2004 sentence—which, recall, was only for three months
and one day—may have been discharged on the date it
was imposed. If, however, the 2004 sentence was
ordered to run consecutive to the 2001 sentences, he
would not have begun serving the 2004 sentence until
sometime after the federal sentencing on March 7, 2008.
It is also possible that McNeil began serving the 2004
sentence on January 24, the date it was imposed, or on
February 5, the date the new 2001 sentences were im-
posed. In either case, the 2004 sentence would not have
been discharged by March 7, when the district court
imposed the federal sentence.
At oral argument, McNeil’s attorney (who did not
handle the case in the district court) admitted that he did
not know whether the 2004 sentence had been dis-
charged prior to the federal sentencing hearing. The
government’s attorney (also not the same attorney to
handle the case below) did not know either. He argued
(...continued)
Thums, 295 Wis.2d 664, 672, 721 N.W.2d 729, 733 (Wis. Ct. App.
2006) (finding that on resentencing, “[t]he court may . . . revisit
whether the companion charges should be concurrent
or consecutive as the court sees fit”).
8 No. 08-1772
only that it was logical to assume that the sentence had
been discharged based on the PSR, and urged that the
relevant question was whether the district court’s
reliance on the PSR was reasonable.
As we have already discussed, however, the PSR
makes it impossible to tell for sure whether McNeil was
serving the 2004 sentence at the time of his federal sen-
tencing, and therefore it was unreasonable for the
district court not to supplement the record. Moreover, as
noted in the PSR, McNeil’s plea agreement includes a
joint recommendation that the federal sentence be “con-
current to any sentence imposed by the State of Wisconsin
resulting from defendant’s possession of the firearm
charged in this case.” This provision of the plea agree-
ment is binding on the sentencing court under Federal
Rule of Criminal Procedure 11, and therefore the court
was required to order the federal sentence concurrent
with all undischarged state sentences once it accepted
the plea agreement. Fed. R. Crim. P. 11(c)(1)(C) (“[T]he
plea agreement may specify that an attorney for the
government will . . . agree that a specific sentence or
sentencing range is the appropriate disposition of the
case, or that a particular provision of the Sentencing
Guidelines, or policy statement, or sentencing factor
does or does not apply (such a recommendation or
request binds the court once the court accepts the plea
agreement).”); see also United States v. Cole, No. 06-2547,
slip op. at 7 (7th Cir. June 30, 2009) (discussing cases).
It almost goes without saying that, to fulfill this require-
ment, the sentencing court was bound to determine
the nature and number of all of McNeil’s undischarged
state sentences related to his gun possession.
No. 08-1772 9
That the PSR failed to include sufficient information
for the district court to make that determination is par-
ticularly frustrating given that the Wisconsin Depart-
ment of Corrections possesses documents that would
provide easy answers to these questions. Gathering such
information is one of the principal tasks of a probation
officer in preparing a PSR. The government’s attorney
acknowledged that the district court should have
ordered the probation office to supplement the record
when it determined that the PSR was not clear on this
point. The government’s attorney also argued, however,
that no one brought this particular issue to the district
court’s attention, and therefore that it had not been liti-
gated, so the U.S. Attorney’s office did not chase down
the state conviction documents.4 Further, the govern-
4
We emphasize “particular” here because, as discussed above,
McNeil’s attorney did request that the federal sentence be
ordered “to run concurrent to the sentence imposed by the
State of Wisconsin resulting from McNeil’s possession of the
firearm charged in this case.” The sentence imposed by the
State of Wisconsin happens to include the sentence for the
2004 offense; but McNeil’s attorney did not spell that out or
object to the PSR recommendation, which addressed only the
2001 sentences. Nevertheless, even if McNeil’s failure to raise
this issue more particularly before the district court subjects
his claim to plain error review here, United States v. Olano, 507
U.S. 725, 732–36 (1993), as discussed infra, we find that the
district court plainly erred by not ordering the probation
office to supplement the record to determine the status of the
2004 sentence. Moreover, there were other aspects of the
probation office’s report and sentencing recommendation that
(continued...)
10 No. 08-1772
ment’s attorney raised a practical difficulty routinely
faced by the U.S. Attorney’s office: determining where to
draw the line on fact-gathering for issues that may
never come up.
We recognize that there is a balancing act to be per-
formed here. The government cannot be expected to
gather every piece of paper imaginable on the chance
that an issue will be litigated. We also emphasize what
is obvious: defense attorneys are wise to scrutinize
PSRs carefully before sentencing and to timely raise ambi-
guities and discrepancies. But where, as here, the PSR
omits crucial information, leaving ambiguity on the face
of that document about the nature of a defendant’s
state sentences, and therefore uncertainty about how the
federal sentence ought to be imposed, we find that it is
plain error not to supplement the record to resolve that
ambiguity. United States v. Olano, 507 U.S. 725, 732–36
(...continued)
should have put the court on notice that they might contain
errors and therefore should be read closely. The sentence
recommended was 137 months, the top end of the guidelines
range and a full 17 months above the statutory maximum. This
error was corrected at the sentencing hearing. The probation
office also recommended a consecutive sentence based on the
relevant guidelines application note, U.S.S.G. § 5G1.3, Ap-
plication Note 3(C), even though the PSR clearly states that the
government agreed to concurrent time. This discrepancy passed
without comment at the hearing, possibly because it is simply
the probation office’s policy to recommend whatever the
guidelines recommend. Yet this inattention to detail should
have flagged the need to scrutinize the report.
No. 08-1772 11
(1993). The PSR’s omission could have affected McNeil’s
substantial rights (we cannot know for sure without
reviewing the Wisconsin sentencing documents). If the
2004 sentence had not been discharged at the time of
federal sentencing, then the federal sentence would run
consecutive to the 2004 state sentence, lengthening the
total time served by up to three months and one day.
See United States v. Jackson, 546 F.3d 465, 472 (7th Cir.
2008) (explaining that if the district court does not
specify whether sentences imposed at different times are
to run concurrently or consecutively, they will run con-
secutively) (citing 18 U.S.C. § 3584(a)). This state of
affairs certainly affects the fairness and integrity of the
judicial proceedings. We exercise our discretion to order
a remand for the court to determine whether the 2004
sentence had been discharged. Olano, 507 U.S. at 735–36.
McNeil also argues that it was plain error for the
district court not to reduce his federal sentence to
reflect the seven months and nineteen days he had
already spent in state custody at the time of his federal
sentencing. McNeil argues that the sentencing transcript
makes clear that the court intended his federal sentence
to be “fully concurrent” with his state sentences, and
that the only way for the district court to impose a
“fully concurrent” sentence was to reduce the federal
sentence by the amount of time already served on the
state sentences. The reason for this conclusion is that the
district court lacks the authority to order the Bureau of
Prisons to give credit for time served before the federal
sentence is imposed. United States v. Ross, 219 F.3d 592,
594 (7th Cir. 2000). McNeil concedes that his failure to
raise this issue below subjects it to plain error review.
12 No. 08-1772
But we see no error here. The district court calculated a
guidelines range of 110 to 120 months, and then ordered a
reduced sentence of 84 months to reflect McNeil’s accep-
tance of responsibility. The district court was not
required to reduce the federal sentence to reflect time
served in state custody, nor does McNeil argue that it
was. Instead, he argues merely that the district court
intended to order a so-called “fully concurrent” sentence.
But nothing in the record reflects such an intent. The
district court judge did not say that he wished he
could give McNeil credit for time served but that he
was unable to do so, nor did he attempt to order the
Bureau of Prisons to give him such credit, which, as
we have already stated, he was not authorized to do.
Nor did the judge state that he wished to make the sen-
tences “fully concurrent.” McNeil makes no showing of
error here, much less of plain error, and therefore we
do not displace this aspect of the sentence.
We R EVERSE AND R EMAND McNeil’s sentence, so that the
district court may supplement the record to determine
the status of the 2004 sentence and whether the federal
sentence should be ordered to run concurrent with it
as well as with the 2001 sentences.
7-21-09