United States v. Barnes, 030118 FED7, 17-2574

Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
Judge Panel:Before Flaum, Easterbrook, and Barrett, Circuit Judges.
Opinion Judge:Barrett, Circuit Judge
Party Name:United States of America, Plaintiff-Appellee, v. David N. Barnes, Defendant-Appellant.
Case Date:March 01, 2018
Docket Nº:17-2574
 
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United States of America, Plaintiff-Appellee,

v.

David N. Barnes, Defendant-Appellant.

No. 17-2574

United States Court of Appeals, Seventh Circuit

March 1, 2018

          Argued January 17, 2018

         Appeal from the United States District Court for the Southern District of Illinois. No. 4:09-cr-40069-NJR-1 - Nancy J. Rosenstengel, Judge.

          Before Flaum, Easterbrook, and Barrett, Circuit Judges.

          Barrett, Circuit Judge

         David Barnes appeals his sentence. He argues that the district court incorrectly calculated his Guidelines range by counting a local ordinance violation for "Smoking Marihuana at a Public Park" in his criminal history score. Because Barnes has waived this argument, we affirm the district court.

          I.

         In 2010, Barnes pleaded guilty to several offenses related to the distribution of crack cocaine. The district court sentenced him to 300 months of imprisonment, five years of supervised release, a fine of $600, and a special assessment of $300. Barnes did not appeal.1 In 2012, Barnes moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the ground that two Illinois convictions used to classify Barnes as a career offender-one for robbery and the other for aggravated discharge of a firearm-were no longer valid predicates. After he received his federal sentence, Barnes persuaded an Illinois state court to convert these convictions from adult felony convictions to adjudications of delinquency. (Barnes was fifteen when he committed these crimes but was tried as an adult.) Now that they were juvenile offenses, Barnes claimed, they no longer justified the enhancement he had received under the Sentencing Guidelines for being a career offender.

         The district court granted his § 2255 motion and ordered that a revised presentence investigation report (PSR) be prepared for resentencing. The revised PSR did not use the adjudications of delinquency to classify Barnes as a career offender. It did, however, count them in his criminal history score. The PSR assigned Barnes ten criminal history points: two for the adjudication of delinquency for robbery, two for the adjudication of delinquency for aggravated discharge of a firearm, one point apiece for three convictions of marijuana possession, one point for smoking marijuana at a public park, and two points for committing the instant offense while on the parole imposed as part of his sentence for the convictions now classified as adjudications of delinquency.

         Defense counsel and the government went back and forth about Barnes's criminal history...

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