Sentencing — criminal history

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — criminal history

Negligent abandonment of a llama is a minor offense that should not count in determining a defendant’s criminal history under U.S.S.G. 4A1.2(c).

“Burge received ten years in prison instead of the two years or less that the Guidelines would have advised. No one, including the district judge, the prosecuting attorneys, defense counsel, or this court, found that result to be appropriate under all the circumstances. And Congress has not compelled that result, at least if the safety valve applies. In subsection 4A1.2(c), the Guidelines provide examples rather than an exhaustive list of prior offenses that should not count as criminal history points. This permits district courts to use their judgment in situations involving unusual offenses, such as negligent abandonment of a llama. It would be manifestly unjust (and perhaps unbearably ironic) for Burge to serve eight or more additional years in a federal penitentiary because he once allowed his llama to escape from its pen. The district court plainly erred in failing to exclude Burge’s llama abandonment conviction under subsection 4A1.2(c). The error seriously affected Burge’s rights and the fairness of the proceedings such that a remand for re-sentencing is required.

Affirmed in part, and Vacated in part.

11-3495 U.S. v. Burge

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Hamilton, J.