United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

November 29, 2016

Before

No. 14-1140

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH OLIVO,

Defendant-Appellant

Appeal from the United States District 

Court for the Northern District of 

Indiana, South Bend Division.

No. 12 CR 00110

Jon E. DeGuilio, Judge.

O R D E R

Joseph Olivo pled guilty to conspiring to distribute marijuana, possessing 

marijuana with intent to distribute, possessing a firearm in furtherance of a drug 

trafficking crime, and possessing a firearm as a felon. The district court concluded that 

Olivo was a career offender under the United States Sentencing Guidelines, and that 

determination resulted in an advisory guidelines range of 292 to 365 months’ 

imprisonment. The district court sentenced Olivo to 292 months. On appeal, we rejected 

Olivo’s challenge to the district court’s denial of his motion to suppress evidence seized 

at his home, and we affirmed his conviction. United States v. Olivo, 597 F. App’x 878 (7th 

Cir. 2015) (unpublished). 

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1
No. 14-1140 Page 2

The Supreme Court later ruled in Johnson v. United States, 135 S. Ct. 2551 (2015)

that the residual clause of the Armed Career Criminal Act (“ACCA”) is 

unconstitutionally vague. The Court then granted Olivo’s petition for a writ of certiorari

and remanded his case to us for further consideration in light of Johnson. Like the 

ACCA’s residual clause, the career offender guideline under which Olivo was 

sentenced provides in its residual clause that a qualifying offense includes an offense 

that “otherwise involves conduct that presents a serious potential risk of physical injury 

to another.” U.S.S.G. § 4B1.1(a)(2) (2013). The parties filed a joint Rule 54 statement of 

position that asked us to hold Olivo’s case pending resolution of United States v. 

Hurlburt, No. 14-3611, United States v. Gillespie, No. 15-1686, and United States v. 

McGuire, No. 15-2071, and to resolve Olivo’s case in similar fashion.

We have now decided those cases. We ruled that Johnson’s holding that the 

ACCA’s residual clause is unconstitutionally vague applies to the parallel residual 

clause in U.S.S.G. § 4B1.2(a)(1) and that it too is unconstitutionally vague. United States 

v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc).1 Because the Hurlburt 

defendants, like Olivo, had not raised a Johnson-type argument before the district court, 

we applied plain error review. Id. at 719. (Johnson was decided after the defendants were 

sentenced.) To succeed on plain error review, the Hurlburt defendants needed to show 

that the error affected their substantial rights, meaning in these circumstances a 

showing of “‘a reasonable probability that, but for the error, the outcome of the 

proceeding would have been different.’” Id. at 725 (quoting Molina-Martinez v. United 

States, 136 S. Ct. 1338, 1343 (2016)). We recognized that when “‘a district court 

incorrectly calculates the guidelines range, we normally presume the improperly 

calculated guidelines range influenced the judge’s choice of sentence, unless he says 

otherwise.’” Id. at 726 (quoting United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014) 

(internal brackets omitted)). As neither judge said otherwise, we vacated both 

defendants’ sentences and remanded for a full resentencing. Id. We followed a similar 

approach in United States v. McGuire, 835 F.3d 756 (7th Cir. 2016).

 

1 We issued our decision in Hurlburt while recognizing that the Supreme Court had 

granted certiorari in a case on collateral review that asked whether Johnson’s holding 

applies to the residual clause in U.S.S.G. § 4B1.2(a)(2). See 835 F.3d at 720 (citing Beckles 

v. United States, 616 F. App’x. 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016)). 

Beckles remains pending in the Supreme Court.
No. 14-1140 Page 3

Here, the presentence report concluded that Olivo was a career offender under 

the guidelines because he had at least two prior felony convictions of either a crime of 

violence or a controlled substance offense, see U.S.S.G. § 4B1.1(a), and the judge agreed.

Olivo has multiple prior felony convictions, but at least two were only qualifying 

felonies under the now-unconstitutional residual clause. The Supreme Court previously 

ruled that resisting law enforcement by flight is only a qualifying ACCA felony under 

the residual clause. Sykes v. United States, 564 U.S. 1 (2011). And we found that criminal 

recklessness can only qualify as a predicate crime as a residual clause offense. United 

States v. Clinton, 591 F.3d 968, 972–74 (7th Cir. 2010). As a result, the parties agreed that 

if Johnson’s holding applies to the Sentencing Guidelines, as we have now ruled it does,

those convictions no longer count as crimes of violence for career offender purposes.

The parties also agreed that under those circumstances the district court would need to 

further review the record and the charging documents for Olivo’s other offenses to 

decide whether he remains a career offender, as well as whether a change in Olivo’s 

career offender classification would change the sentence. We agree with this approach. 

With some previously qualifying convictions now out of the picture, the district court 

will need to reassess whether Olivo remains a career offender. And as in Hurlburt and 

McGuire, it is not clear from the sentencing transcript whether the career offender 

designation influenced the judge’s choice of sentence. 

Accordingly, we VACATE Olivo’s sentence and REMAND for resentencing.