NONPRECEDENTIAL DISPOSITION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
Submitted January 5, 2017*
Decided February 7, 2017
Before
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-‐‑2349 Appeal from the United
States District Court for
UNITED STATES OF AMERICA,
the Northern District of
Plaintiff-‐‑Appellee,
Illinois, Eastern Division.
v.
No. 10 CR 759-‐‑2
FRANCISCO NARVAEZ, also known as Paco, John J. Tharp, Jr., Judge.
Defendant-‐‑Appellant.
Order
The district court sentenced Francisco Narvaez to 72 months’ imprisonment,
within the Guideline range of 70 to 87 months calculated by the presentence
report. His lawyer did not protest the use of that range. But on appeal Narvaez
contends that the range should have been lower—in particular, that he should
* We have unanimously agreed to decide the case without argument because the briefs and
record adequately present the facts and legal arguments, and argument would not significantly
aid the court. See Fed. R. App. P. 34(a)(2)(C).
No. 16-‐‑2349 Page 2
have been in criminal history category I rather than criminal history category II.
Confessing error, the prosecutor has conceded that Narvaez is correct.
The presentence report counted, toward Narvaez’s criminal history, a 2005
conviction in Illinois for aggravated unlawful use of a weapon. Such a conviction
is indeed on his record, but the Supreme Court of Illinois has held that the statute
under which Narvaez had been convicted violates the Constitution’s Second
Amendment. See People v. Aguilar, 2013 IL 112116 (Sept. 12, 2013). The Sentencing
Commission has decided that convictions under statutes later found to be
unconstitutional must not be counted toward criminal history. U.S.S.G. §4A1.2
Application Note 6. It follows that the district court erred in calculating
Narvaez’s recommended range, and the error is sufficiently well established and
(potentially) consequential that it meets the standard for correction under the
plain-‐‑error standard. Whether a lower recommended range affects the sentence
is a question for the district court to consider.
The judgment of the district court is vacated, and the case is remanded for
resentencing.