In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1579
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MANDY L. HAGEN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 17‐CR‐40011 — J. Phil Gilbert, Judge.
____________________
ARGUED NOVEMBER 7, 2018 — DECIDED JANUARY 2, 2019
____________________
Before ROVNER, SYKES, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. Mandy Hagen was convicted twice
under Illinois law for failing to get her children to school.
When she later pleaded guilty in federal court for conspiring
to distribute methamphetamine, the district court counted her
two convictions for allowing child truancy toward her crimi‐
nal history score. That was an error. Section 4A1.2(c) of the
Sentencing Guidelines excludes certain crimes, and those
“similar to” them, from a defendant’s criminal history. One of
2 No. 18‐1579
the listed offenses is non‐support, which involves failing to
provide for a child’s basic needs. Permitting truancy is a sim‐
ilar offense, and a less serious one at that. Hagen’s criminal
history score must be recalculated, this time excluding her
two truancy‐related offenses.
I.
In 2013, Mandy Hagen joined a scheme to distribute meth‐
amphetamine to several counties in Illinois. As part of this en‐
terprise, she sold meth, provided ingredients and a venue for
its manufacture, and collected drug debts. After a few close
calls with law enforcement, Hagen was finally arraigned in
May 2017. She pleaded guilty to a single count of conspiracy
to distribute more than 50 grams of methamphetamine.
At sentencing, the government contended that the district
court should count Hagen’s two prior offenses for Guardian
Allows Child Truancy, a crime under 105 Ill. Comp. Stat. 5/26‐
10, in calculating her criminal history score. See U.S.S.G.
§ 4A1.1(c). Hagen had pleaded guilty to this offense twice.
During the 2013–14 school year, she allowed her child M.F. to
be truant for 21 days. Then in 2015, she allowed another of her
children, B.F., to accumulate 18 unexcused absences. Includ‐
ing these two convictions in the calculation of Hagen’s crimi‐
nal history score put her in a higher criminal history category
than she would have otherwise been in.
Hagen objected to their inclusion, insisting that they fell
within § 4A1.2(c) of the Guidelines, which excludes certain
specific offenses—and those “similar to” them—from a de‐
fendant’s criminal history. According to Hagen, Guardian Al‐
lows Child Truancy is similar enough to the listed excluded
offense of “[j]uvenile status offenses and truancy” that it
No. 18‐1579 3
should be excluded. The government responded that permit‐
ting truancy is a more serious offense than actually being tru‐
ant, since adult guardians are held to a higher standard of re‐
sponsibility than are the children in their care. The district
court sided with the government, and Hagen appeals that de‐
cision.
II.
Under the Guidelines, prior offenses—including misde‐
meanors and petty offenses—typically increase the defend‐
ant’s criminal history score, which in turn affects the recom‐
mended sentencing range. But § 4A1.2(c) of the Guidelines
provides two lists of offenses that courts are to treat differ‐
ently when calculating a criminal history score. Section
4A1.2(c)(1) instructs that
[s]entences for the following prior offenses and
offenses similar to them, by whatever name
they are known, are counted only if (A) the sen‐
tence was a term of probation of more than one
year or a term of imprisonment of at least thirty
days, or (B) the prior offense was similar to an
instant offense[.]
It then lists various offenses, including careless driving,
gambling, contempt of court, prostitution, and non‐support.
Section 4A1.2(c)(2) says that certain offenses should never be
counted. Those include offenses such as fish and game viola‐
tions, juvenile status offenses and truancy, loitering, and
speeding. U.S.S.G. § 4A1.2(c)(2). Like § 4A1.2(c)(1), this sec‐
tion states that any offenses “similar to” the enumerated of‐
fenses, “by whatever name they are known,” are not to be
counted. Id.
4 No. 18‐1579
Hagen concedes that allowing truancy is not specifically
listed in either § 4A1.2(c)(1) or (c)(2). The question is whether
her convictions should be excluded from her criminal history
score because they are “similar to” one or more of those listed
offenses. The Guidelines commentary on § 4A1.2(c) lists five
factors for courts to consider in analyzing this issue: (1) “a
comparison of punishments imposed for the listed and un‐
listed offenses,” (2) “the perceived seriousness of the offense
as indicated by the level of punishment,” (3) “the elements of
the offense,” (4) “the level of culpability involved,” and (5)
“the degree to which the commission of the offense indicates
a likelihood of recurring criminal conduct.” U.S.S.G. § 4A1.2
cmt. 12(A). In applying these factors, courts are to take a
“common sense approach.” Id.
The Illinois Code makes it a crime for “[a]ny person hav‐
ing custody or control of a child … to whom notice has been
given of the child’s truancy … [to] knowingly and willfully
permit[] such a child to persist in his truancy within that
school year.” 105 Ill. Comp. Stat. 5/26‐10.1 A child is truant if
they are “absent without valid cause … from such attendance
for more than 1% but less than 5% of the past 180 school
days.” 105 Ill. Comp. Stat. 5/26‐2a. A guardian who allows
truancy commits a Class C misdemeanor punishable by up to
“30 days [of] imprisonment and/or a fine of up to $500.” 105
Ill. Comp. Stat. 5/26‐10. Class C misdemeanors are the least
serious misdemeanors in the Illinois code. See 730 Ill. Comp.
1 Though the name doesn’t seem to appear in the Illinois code, we take
the parties’ lead in calling this offense “Guardian Allows Child Truancy.”
No. 18‐1579 5
Stat. 5/5‐4.5‐10, 5/5‐4.5‐65. And the maximum fine for allow‐
ing truancy is lower than the usual $1,500 cap for a Class C
misdemeanor in Illinois. See id. at 5/5‐4.5‐65(e).
Hagen’s argument below was that her offenses were sim‐
ilar to “[j]uvenile status offenses and truancy,” an offense
listed in § 4A1.2(c)(2). She renews this argument on appeal.
Her basic point is that Guardian Allows Child Truancy is
nothing more than aiding and abetting truancy. If that’s right,
she says, then allowing truancy would be at most identical in
seriousness to the underlying offense it abets, and it couldn’t
logically be worse.
We disagree. Adults who allow (or abet) truancy are more
culpable than the truant children themselves. They are held
to a higher standard than those in their care, and for good rea‐
son. Children can’t generally be expected to understand the
importance of their school attendance. But adults should
know better.
The truancy laws in Illinois reflect this reasoning. The Illi‐
nois Code doesn’t criminalize truancy by children—it doesn’t
even allow for any punitive action to be taken unless support‐
ive services and resources have been provided to the student.
105 Ill. Comp. Stat. 5/26‐12. But it does criminalize the allow‐
ance of truancy by a guardian. 105 Ill. Comp. Stat. 5/26‐10. In‐
deed, “criminal proceedings under the [truancy statutes] are
directed against those having custody of the child, not the
child himself.” In re K.S.Y., 416 N.E.2d 736, 739 (Ill. Ct. App.
1981). This is a significant difference in punishment, and it in‐
dicates different levels of seriousness between the offenses.
We therefore conclude that Guardian Allows Child Truancy
is not sufficiently similar to truancy itself to merit exclusion
under that part of § 4A1.2(c)(2).
6 No. 18‐1579
III.
That is not to say that Guardian Allows Child Truancy
should necessarily count toward Hagen’s criminal history cat‐
egory. Hagen contends that even if this offense is insuffi‐
ciently similar to truancy, it should be excluded because of its
similarity to other offenses marked for exclusion by
§§ 4A1.2(c)(1) and (c)(2).
Hagen did not raise this more general argument before the
district court; there, she focused solely on the comparison be‐
tween allowing truancy and truancy itself. Because she for‐
feited the point she now presses, the government is correct
that we can review it only for plain error. See United States v.
Garrett, 528 F.3d 525, 527 (7th Cir. 2008). Under the plain error
test, we “decide whether there was an error, whether it was
plain, and whether it affected substantial rights.” Id. If so, then
“we may exercise our discretion only if the error seriously af‐
fects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
None of the offenses listed in §§ 4A1.2(c)(1) and (c)(2) is
exactly like Guardian Allows Child Truancy. But while allow‐
ing truancy is more serious than simple truancy, it is substan‐
tially less serious than one comparable offense listed in
§ 4A1.2(c)(1): non‐support, which involves various failures to
support or provide maintenance for a spouse or child to
whom one is obligated. See, e.g., 750 Ill. Comp. Stat. 16/15(a).
Non‐support is a (c)(1) offense. Those offenses (and those
similar to them) are only counted if the sentence was a term
of probation of more than one year or a term of imprisonment
of at least thirty days, or if the prior offense was similar to an
No. 18‐1579 7
instant offense. U.S.S.G. § 4A1.2(c)(1). Hagen’s Guardian Al‐
lows Child Truancy sentences were for only four days total,
and they were not similar to the drug conspiracy conviction
for which she is being sentenced here.2 Thus, if her prior of‐
fenses were similar to non‐support, the district court should
not have included them.
As noted, non‐support bears an obvious resemblance to
allowing truancy because both offenses involve a guardian’s
failure to fulfill her responsibilities to a minor in her care. And
the following analysis of the five factors from the Guidelines
commentary does more than confirm this resemblance—it re‐
veals that non‐support is a significantly more serious offense
than Guardian Allows Child Truancy. It would plainly violate
our common sense approach to hold that the less serious of‐
fense must be counted while the more serious one is exempt.
The first factor compares the punishments for each of‐
fense. Looking at Illinois’s code, we see that a person con‐
victed of non‐support is guilty of a Class A misdemeanor at
best, and a Class 4 felony at worst. 750 Ill. Comp. Stat.
16/15(b). The former carries a sentence of less than one year of
imprisonment, and the latter carries a sentence of not less than
one year and not more than three years. 730 Ill. Comp. Stat.
5/5‐4.5‐45, 5/5‐4.5‐55. These sentences are both much more
significant than the 30‐day maximum imprisonment for Class
2 Hagen’s first Guardian Allows Child Truancy offense earned her
two days’ imprisonment, six months of delayed court supervision, and a
fine of $210. Her second resulted in a sentence of two weekends’ impris‐
onment, twelve months of court supervision, and a $180 fine. Her second
fine and both terms of imprisonment were stayed.
8 No. 18‐1579
C misdemeanors like Guardian Allows Child Truancy. 730 Ill.
Comp. Stat. 5/5‐4.5‐65.
The relative sentences suggest a considerable difference in
the seriousness of these two offenses as indicated by their
punishments, which we consider under the second commen‐
tary factor. And the fact that Guardian Allows Child Truancy
is the less serious of the two cuts very strongly in favor of ex‐
cluding it under § 4A1.2(c)(1).
Under the third factor, we compare the elements of the of‐
fense. Here again, we see similarity between the two. Guard‐
ian Allows Child Truancy involves positions of authority over
a child and a willful failure to fulfill one’s responsibilities to
that child. See 105 Ill. Comp. Stat. 5/26‐10. Non‐support in‐
volves a similar, and we think more serious, failure toward a
child or spouse. See 750 Ill. Comp. Stat. 16/15(a).
This comparative culpability goes toward the fourth fac‐
tor. Refusing to support a child strikes us as a more severe
offense than allowing truancy. Non‐support involves one
who “without lawful excuse, deserts or willfully refuses to
provide for the support or maintenance of his or her
child … .” Id. We think that one who deserts a child or fails to
provide for the child’s basic necessities is more culpable than
one who permits a child to skip school.
The fifth factor asks us to compare the extent to which
these offenses suggest a likelihood of recurring criminal con‐
duct. It isn’t entirely clear which way this cuts, since both
crimes could be committed under many different circum‐
stances. But at the very least, it doesn’t seem that permitting
truancy is any more likely to suggest future criminal conduct
than is non‐support.
No. 18‐1579 9
In sum, the five‐factor test confirms that Guardian Allows
Child Truancy is similar to the offense of non‐support and
that § 4A1.2(c)(1) therefore required its exclusion from Ha‐
gen’s criminal history score. Non‐support bears so many ob‐
vious similarities to Guardian Allows Child Truancy that the
court plainly ought to have considered it. And it is so clearly
more serious than Hagen’s offenses that we are convinced
that the court committed plain error. This error affected a sub‐
stantial right—Hagen’s freedom—by increasing her recom‐
mended sentence under the Guidelines. See Garrett, 528 F.3d
at 527 (“A sentence based on an incorrect Guideline range
constitutes an error affecting substantial rights and can thus
constitute plain error, which requires us to remand unless we
have reason to believe that the error did not affect the district
court’s selection of a particular sentence.”). And the fact that
the more serious offense of non‐support is excluded would
make it particularly unjust to count the similar, less serious
offense of Guardian Allows Child Truancy toward Hagen’s
criminal history score. We believe that letting this error stand
would “seriously affect[] the fairness … of judicial proceed‐
ings,” justifying a rare exercise of our discretion in reversing
under a plain error standard. See Garrett, 528 F.3d at 527.
* * *
We REVERSE the district court’s sentence and REMAND
for resentencing in accordance with this opinion.