UNITED STATES v. MORROW (2019)

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America Plaintiff-Appellee v. Dale Dexter MORROW, Jr. Defendant-Appellant

No. 18-3006

Decided: October 10, 2019

Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges. Andrew H. Kahl, Assistant U.S. Attorney, Richard D. Westphal, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA, for Plaintiff-Appellee Dale Dexter Morrow, Jr., Pro Se Paul Rosenberg, Paul Rosenberg, P.C., Des Moines, IA, for Defendant-Appellant

[Unpublished]

Dale Dexter Morrow appeals his sentence, arguing that it is substantively unreasonable. After the parties submitted their briefs, Morrow filed a motion to file supplemental briefing. He claimed that he was assigned criminal history points for a conviction based on an invalidated Illinois statute. See 720 Ill. Comp. Stat. 5/24-1.6. We ordered the parties to file supplemental briefing.

The parties agree that plain error review applies. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“There must be an error that is plain and that affect[s] substantial rights.” (internal quotation marks omitted and alteration in original)). In the Government’s supplemental brief, it acknowledged that Morrow was assessed three criminal history points based on a statute invalidated by the Illinois Supreme Court and that the error is plain. See People v. Aguilar, 377 Ill.Dec. 405, 2 N.E.3d 321 (Ill. 2013). The Government also conceded that the error affects Morrow’s substantial rights. See United States v. Jenkins, 772 F.3d 1092, 1097 (7th Cir. 2014) (holding that assigning a defendant three criminal history points under 720 Ill. Comp. Stat. 5/24-1.6 was plain error, vacating the sentence, and remanding for resentencing). Both parties request that we remand the case for resentencing.

We thus vacate the sentence and remand the case to the district court for resentencing.

PER CURIAM.