United States Court of Appeals
For the Eighth Circuit
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No. 17-1378
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Markell Jay Hamilton, also known as Poo
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: December 11, 2017
Filed: January 25, 2018
[Unpublished]
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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Markell Hamilton directly appeals after the he pled guilty to a drug charge, and
the district court sentenced him to an above-Guidelines-range prison term. His
counsel has moved for leave to withdraw, and has filed a brief under Anders v.
California, 386 U.S. 738 (1967). Hamilton has filed a pro se brief, arguing, as
relevant, that the district court plainly erred in calculating his criminal history score
by including his Illinois conviction for aggravated unlawful use of a weapon, because
a portion of the relevant statute had been ruled unconstitutional by the Illinois
Supreme Court and the Seventh Circuit.
After careful review of the record and the parties’ arguments on appeal, we
vacate Hamilton’s sentence and remand for resentencing for the district court to
consider Hamilton’s criminal-history argument in the first instance. We express no
opinion as to the merits of this argument, and we note that it is unclear from the
record whether Hamilton was convicted under a portion of the statute that has been
ruled unconstitutional. Counsel’s motion to withdraw is denied.
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