NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 29, 2016
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-1140
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, South Bend Division.
v.
No. 12 CR 00110
JOSEPH OLIVO,
Defendant-Appellant Jon E. DeGuilio, Judge.
ORDER
Joseph Olivo pled guilty to conspiring to distribute marijuana, possessing
marijuana with intent to distribute, possessing a firearm in furtherance of a drug
trafficking crime, and possessing a firearm as a felon. The district court concluded that
Olivo was a career offender under the United States Sentencing Guidelines, and that
determination resulted in an advisory guidelines range of 292 to 365 months’
imprisonment. The district court sentenced Olivo to 292 months. On appeal, we rejected
Olivo’s challenge to the district court’s denial of his motion to suppress evidence seized
at his home, and we affirmed his conviction. United States v. Olivo, 597 F. App’x 878 (7th
Cir. 2015) (unpublished).
No. 14-1140 Page 2
The Supreme Court later ruled in Johnson v. United States, 135 S. Ct. 2551 (2015)
that the residual clause of the Armed Career Criminal Act (“ACCA”) is
unconstitutionally vague. The Court then granted Olivo’s petition for a writ of certiorari
and remanded his case to us for further consideration in light of Johnson. Like the
ACCA’s residual clause, the career offender guideline under which Olivo was
sentenced provides in its residual clause that a qualifying offense includes an offense
that “otherwise involves conduct that presents a serious potential risk of physical injury
to another.” U.S.S.G. § 4B1.1(a)(2) (2013). The parties filed a joint Rule 54 statement of
position that asked us to hold Olivo’s case pending resolution of United States v.
Hurlburt, No. 14-3611, United States v. Gillespie, No. 15-1686, and United States v.
McGuire, No. 15-2071, and to resolve Olivo’s case in similar fashion.
We have now decided those cases. We ruled that Johnson’s holding that the
ACCA’s residual clause is unconstitutionally vague applies to the parallel residual
clause in U.S.S.G. § 4B1.2(a)(1) and that it too is unconstitutionally vague. United States
v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc). 1 Because the Hurlburt
defendants, like Olivo, had not raised a Johnson-type argument before the district court,
we applied plain error review. Id. at 719. (Johnson was decided after the defendants were
sentenced.) To succeed on plain error review, the Hurlburt defendants needed to show
that the error affected their substantial rights, meaning in these circumstances a
showing of “‘a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.’” Id. at 725 (quoting Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016)). We recognized that when “‘a district court
incorrectly calculates the guidelines range, we normally presume the improperly
calculated guidelines range influenced the judge’s choice of sentence, unless he says
otherwise.’” Id. at 726 (quoting United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014)
(internal brackets omitted)). As neither judge said otherwise, we vacated both
defendants’ sentences and remanded for a full resentencing. Id. We followed a similar
approach in United States v. McGuire, 835 F.3d 756 (7th Cir. 2016).
1
We issued our decision in Hurlburt while recognizing that the Supreme Court had
granted certiorari in a case on collateral review that asked whether Johnson’s holding
applies to the residual clause in U.S.S.G. § 4B1.2(a)(2). See 835 F.3d at 720 (citing Beckles
v. United States, 616 F. App’x. 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016)).
Beckles remains pending in the Supreme Court.
No. 14-1140 Page 3
Here, the presentence report concluded that Olivo was a career offender under
the guidelines because he had at least two prior felony convictions of either a crime of
violence or a controlled substance offense, see U.S.S.G. § 4B1.1(a), and the judge agreed.
Olivo has multiple prior felony convictions, but at least two were only qualifying
felonies under the now-unconstitutional residual clause. The Supreme Court previously
ruled that resisting law enforcement by flight is only a qualifying ACCA felony under
the residual clause. Sykes v. United States, 564 U.S. 1 (2011). And we found that criminal
recklessness can only qualify as a predicate crime as a residual clause offense. United
States v. Clinton, 591 F.3d 968, 972–74 (7th Cir. 2010). As a result, the parties agreed that
if Johnson’s holding applies to the Sentencing Guidelines, as we have now ruled it does,
those convictions no longer count as crimes of violence for career offender purposes.
The parties also agreed that under those circumstances the district court would need to
further review the record and the charging documents for Olivo’s other offenses to
decide whether he remains a career offender, as well as whether a change in Olivo’s
career offender classification would change the sentence. We agree with this approach.
With some previously qualifying convictions now out of the picture, the district court
will need to reassess whether Olivo remains a career offender. And as in Hurlburt and
McGuire, it is not clear from the sentencing transcript whether the career offender
designation influenced the judge’s choice of sentence.
Accordingly, we VACATE Olivo’s sentence and REMAND for resentencing.