In the
United States Court of Appeals
For the Seventh Circuit
No. 16-2194
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON J. TYSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:14-cr-00231-JPS-1 — J. P. Stadtmueller, Judge.
ARGUED MAY 18, 2017 — DECIDED JULY 11, 2017
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
BAUER, Circuit Judge. On 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 agree-
ment included a stipulation that, pursuant to § 2K2.1(a)(2) of
the United States Sentencing Commission Guidelines, the
2 No. 16-2194
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 convic-
tion for burglary. The parties agreed the burglary constituted
a “crime of violence” under the Guidelines. See U.S.S.G.
§ 2K2.1(a)(2).
On 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 responsi-
bility, for a total offense–level recommendation of 23. Com-
bined with his category VI criminal history, the PSR recom-
mended a Guidelines range of 92 to 115 months’ imprison-
ment. 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.
Tyson 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 govern-
ment recommended a sentence of 77 months.
The 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
No. 16-2194 3
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.
DISCUSSION
Tyson 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 sentenc-
ing, we held that because the Wisconsin burglary statute covers
a “greater swath of conduct” than the elements of the Guide-
lines offense, it cannot serve as a predicate offense under
§ 2K2.1(a). United States v. Edwards, 836 F.3d 831, 838 (7th Cir.
2016).
Tyson 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
4 No. 16-2194
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
id.
Under 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)).
The first two conditions have been met here because, after
Edwards, it was plain error for the court to use Tyson’s Wiscon-
sin burglary conviction as a predicate to set the base offense
level under § 2K2.1(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 proba-
bility 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.
As Olano made clear, however, that does not end our
inquiry. We will only exercise our discretion to find reversible
No. 16-2194 5
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
months below the low end of the correct range. It can hardly be
said that such a sentence constitutes a miscarriage of justice.
At the hearing, the court went out of his way to explain his
view that the Guidelines range was too high and that the
calculated recommendation was not serving as the basis for the
sentence he imposed. The court described the applicable range
as “off the reservation” and noted that the Guidelines present
“very fertile ground for the court to impose something differ-
ent.” There is no indication in the record that the calculation
error in any way affected the fairness or integrity of Tyson’s
sentencing proceedings. Therefore, Tyson cannot satisfy the
fourth condition, and his challenge cannot survive plain error
review.
CONCLUSION
For the foregoing reasons, the sentence is AFFIRMED.