# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 15, 2012 *

Decided February 28, 2012

Before

MICHAEL S. KANNE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11

‐ 1977

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

TERRELL ROGERS,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 05 CR 758

‐ 1

Blanche M. Manning,

Judge

.

O R D E R

If Terrell Rogers had kept “walking down the street, he would not have been

arrested,” as his probation officer would later tell the court. But when Rogers—a convicted

sex offender—stopped walking and waited with his friend outside her child’s school, he

violated an Illinois law forbidding child sex offenders from loitering in a school zone. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and record. See F ED

. R. A PP

. P.

34(a)(2)(C).No. 11

‐ 1977 Page 2

See 720 ILCS § 5/11

‐ 9.3. By committing this crime, Rogers violated the terms of his

supervised release from federal prison, where he had served a 51

‐ month sentence for credit

‐

card fraud, 18 U.S.C. § 1029(a)(2), and identity theft, 18 U.S.C. § 1028A(a)(1). (Rogers also

admitted using marijuana, a further violation of his terms of release.) The district court

revoked Rogers’ supervised release—he was serving concurrent terms, one for each

conviction—and sentenced him to two consecutive 24

‐ month terms of reimprisonment. On

appeal, Rogers argues that his total term of reimprisonment exceeded the statutory

maximum. The government concedes this error. We agree and vacate Rogers’ sentence.

After Rogers’ conviction in state court for loitering in a school zone, the district court

held a revocation hearing. Rogers did not contest the charges at the hearing, but asked that

any sentence be concurrent with his sentence in state prison. The government requested a

total term of reimprisonment of 24 months, but the judge appeared to misunderstand the

government’s request, and announced two 24

‐ month terms of reimprisonment to run

consecutively for a total of 48 months. Defense counsel interjected that the government

requested only 24 months total. The government replied that while it requested only 24

months, the court had discretion to impose a longer term.

At this point, the government told the judge that 48 months’ reimprisonment was

authorized by the statute. That was not correct. The probation officer told the judge that 48

months was within the Sentencing Guidelines. That was also not correct. And defense

counsel’s sole response to this abrupt shift was: “Oh, well.” With all of this erroneous

information before the court, the judge then sentenced Rogers to 48 months’

reimprisonment, consisting of two consecutive 24

‐ month terms.

On appeal, Rogers argues that the district court committed plain error by imposing

an unlawful sentence. Rogers did not object at sentencing, so we review for plain error. See

United States v. Anderson

, 604 F.3d 997, 1001 (7th Cir. 2010); United States v. Randle

, 324 F.3d

550, 555 (7th Cir. 2003). The government concedes there was plain error. Because Rogers’

sentence exceeded the statutory maximum, it was an unlawful sentence and the district

court committed plain error in imposing it. United States v. Pawlinski

, 374 F.3d 536, 540–41

(7th Cir. 2004); cf. United States v. Brown

, 662 F.3d 457, 462 (7th Cir. 2011) (court’s mistaken

application of a mandatory minimum constituted plain error). Congress set the maximum

terms of reimprisonment according to felony class: 60 months for a Class A felony, 36

months for a Class B felony, 24 months for a Class C or D felony, and 12 months for all other

offenses. 18 U.S.C. § 3583(e)(3); United States v. Flagg

, 481 F.3d 946, 949 (7th Cir. 2007).

Rogers’ credit

‐ card fraud was a Class C felony because the maximum sentence was 120

months, 18 U.S.C. §§ 3559(a), 1029(c)(1)(A); and his identity

‐ theft conviction was a Class E

felony because it carried a maximum sentence of 12 months. Id. §§ 3559(a), 1028A(a)(1).

Therefore, the maximum term of reimprisonment was 36 months: 24 months for credit

‐ cardNo. 11

‐ 1977 Page 3

fraud and 12 months for identify theft. See United States v. Eskridge

, 445 F.3d 930, 934 (7th

Cir. 2006) (courts may impose consecutive terms of reimprisonment for violations of

concurrent terms of supervised release). The district court did not have legal authority to

impose the sentence of 48 months’ reimprisonment.

Rogers also argues that the district court committed plain error by failing to calculate

the Sentencing Guidelines correctly before sentencing him. We agree. The district court was

obliged to begin with the properly calculated guideline range. See United States v. Neal

, 512

F.3d 427, 438 (7th Cir. 2008). The probation officer misadvised the court that the guideline

range was 18 to 48 months, both orally at the hearing and in a written report. That range

was incorrect because it exceeded the statutory maximum, but the correct guideline range

was also disputed. Defense counsel argued for a guideline range of 18 to 24 months, based

on Rogers’ most serious violation being loitering in a school zone (a Class B violation) and

his extensive criminal career (a criminal history category of V). See U.S.S.G. § 7B1.4. But the

probation officer presumed that § 7B1.4 applied separately to each term of supervised release

. If

that is correct, the guideline range would be 18 to 36 months: 18 to 24 months for credit

‐ card

fraud, and (at the judge’s discretion) 12 months (the maximum) for identity theft. The

government takes no position, but urges us to remand without deciding the correct

guideline range.

Because Rogers’ guideline range incorrectly exceeded the statutory maximum, the

case must be remanded for resentencing, and we decline to reach Rogers’ assertion that the

correct range was only 18 to 24 months. On remand, the parties should address the

calculation of the guideline range under U.S.S.G. § 7B1.4. We remind the parties and the

district court that the Guidelines are, after all, guidelines. They must be considered seriously

and applied carefully, but in the end, the sentence is the responsibility of the district judge,

after careful consideration of all the relevant factors under 18 U.S.C. § 3553(a). As we have

explained: A district court facing a tricky but technical issue under the Guidelines may

exercise its discretion under section 3553(a) and may spell out on the record whether and to

what extent the resolution of the guideline issue affected the final sentence. United States v.

Lopez

, 634 F.3d 948, 954 (7th Cir. 2011).

Accordingly, we VACATE the sentence and REMAND for resentencing consistent

with this order.