883 F.3d 955
7th Cir.2018Background
- David Barnes pled guilty in 2010 to offenses related to distributing crack cocaine and was sentenced (initially 300 months, later reduced to 269 months). He did not appeal that sentence.
- In 2012 Barnes obtained state-court conversions of two prior adult convictions (robbery and aggravated discharge of a firearm) to juvenile adjudications and moved under 28 U.S.C. § 2255 to have his federal sentence vacated/enhanced status revisited as these would not qualify as career-offender predicates.
- The district court granted relief under § 2255, prepared a revised PSR that did not treat those adjudications as career-offender predicates but still counted them in criminal history; the PSR assigned ten criminal-history points initially, later revised to four points (three marijuana possession tickets plus one municipal ordinance for smoking marijuana in a park) after negotiations.
- Defense counsel expressly sought a criminal-history score of four points (one point for each marijuana offense, including the park-smoking ordinance) and repeatedly represented to the district court that four points was the correct total.
- On resentencing, Barnes objected only to counting the juvenile adjudications and related parole violation; he did not object to the inclusion of the municipal "Smoking Marihuana at a Public Park" ordinance conviction.
- Barnes appealed, arguing the municipal ordinance could not be counted because Illinois has no distinct state crime named "Smoking Marihuana at a Public Park," and local ordinances count only if the underlying conduct would violate state law. The Seventh Circuit held Barnes waived the objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counting a local ordinance conviction for "Smoking Marihuana at a Public Park" in Barnes's federal criminal-history score was erroneous | Barnes: The ordinance has no counterpart state crime, so it should not count under U.S.S.G. § 4A1.2(c)(2) | Government: Barnes waived the objection by affirmatively asking the court to include that item in the four-point calculation; in any event, the conduct (smoking) implies possession, which violated Illinois law at the time | Court: Waiver — Barnes repeatedly told the court the correct criminal-history total was four points including the park smoking offense, so he cannot now challenge its inclusion |
Key Cases Cited
- United States v. Haddad, 462 F.3d 783 (7th Cir. 2006) (distinguishes waiver from forfeiture)
- United States v. Brodie, 507 F.3d 527 (7th Cir. 2007) (forfeiture reviewed for plain error; waiver extinguishes error)
- United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005) (accepting a PSR without objection does not necessarily constitute waiver)
- United States v. Jenkins, 772 F.3d 1092 (7th Cir. 2014) (failure to raise some PSR objections does not automatically waive others; strong claims may suggest forfeiture rather than waiver)
- United States v. Walton, 255 F.3d 437 (7th Cir. 2001) (affirmative statement that a single objection is the sole objection can constitute waiver of others)
- United States v. Milquette, 214 F.3d 859 (7th Cir. 2000) (ordinance violations count in criminal history if they also violate state law)
- United States v. Trotter, 270 F.3d 1150 (7th Cir. 2001) (consumption of a drug can support an inference of possession for purposes of state drug laws)
The district court's judgment is AFFIRMED.