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Residual Clause

By: Derek Hawkins//September 6, 2016//

Residual Clause

By: Derek Hawkins//September 6, 2016//

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7th Circuit Court of Appeals

Case Name: United States of America v. Patrick S. McGuire

Case No.: 15-2071

Officials: ROVNER, SYKES, and HAMILTON, Circuit Judges

Focus: Residual Clause

Court erred included residual clause in the career-offender guideline

The district judge counted two of McGuire’s prior convictions as crimes of violence, one of which—a conviction for fleeing the police—qualified only under the residual clause. With the career-offender enhancement in the mix, McGuire’s Guidelines range increased from 63–78 months to 151–188 months. Citing McGuire’s extensive criminal history, the judge imposed a 188-month sentence. In doing so she noted her surprise that the government hadn’t asked for the statutory maximum sentence of 20 years. McGuire appeals, arguing that in light of Johnson v. United States, 135 S. Ct. 2551 (2015), the residual clause in the career-offender guideline is unconstitutionally vague. The government agrees and confesses error. In a recent decision circulated to the full court under Circuit Rule 40(e), we also agreed and invalidated § 4B1.2(a)(2)’s residual clause as unconstitutionally vague. United States v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (en banc). Applying Hurlburt here, McGuire was wrongly classified as a career offender. As in most cases involving miscalculation of a defendant’s Guidelines range, that error warrants full resentencing.

Vacated and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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