Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Mandy L. Hagen

Case No.: 18-1579

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Sentencing Guidelines

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 criminal 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 the listed offenses is non‐support, which involves failing to provide for a child’s basic needs. Permitting truancy is a similar offense, and a less serious one at that. Hagen’s criminal history score must be recalculated, this time excluding her two truancy‐related offenses.

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 Hagen’s criminal history score. Non‐support bears so many obvious 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 substantial right—Hagen’s freedom—by increasing her recommended 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 proceedings,” 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.

Reversed and Remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.