In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1772

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALAN J. MCNEIL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07-CR-236—J.P. Stadtmueller, Judge.

ARGUED FEBRUARY 10, 2009—DECIDED JULY 21, 2009

Before CUDAHY, WILLIAMS and TINDER, Circuit Judges.

CUDAHY, Circuit Judge. Alan McNeil was arrested for

being a felon-in-possession of a firearm while he was

on parole from three state convictions. His state parole

was revoked due to the felon-in-possession charge and

he received three new state sentences. The district court

then imposed an 84-month sentence for the felon-inpossession charge, to run concurrent with two of those

state sentences. It is impossible to tell from the record

whether the third state sentence had been discharged
2 No. 08-1772

when the federal sentence was imposed. Because McNeil

and the government agreed to a recommendation that

McNeil would receive concurrent time with any state

sentence he was serving, the district court erred by not

determining the status of the third state sentence. We

therefore remand McNeil’s sentence for the district court

to supplement the record regarding the status of that

third sentence and to determine whether McNeil should

be resentenced in light of it.

McNeil was arrested on July 18, 2007 when Milwaukee

police officers executed a narcotics search warrant at the

home of McNeil’s girlfriend. That night McNeil told the

officers that he had hidden a pistol in a heating vent at the

home. After obtaining a second search warrant, the officers

found the gun where McNeil told them it would be. In

December 2007, McNeil pleaded guilty to one count of

felon-in-possession, in violation of 18 U.S.C. §§ 922(g),

924(a)(2).

Following his plea, on January 24, 2008, McNeil’s

parole was revoked on one of his prior state convictions,

Case No. 04-CF-1846, and he received an additional

state sentence of three months and one day (hereinafter

the “2004 sentence,” so called because McNeil was convicted and received the original sentence for this offense

in 2004). Roughly two weeks later, on February 5, 2008,

McNeil’s parole was revoked on the other two state

convictions, Case Nos. 01-CF-833 and 01-CF-2651, and he

received additional sentences of two years, five months

and four days for each (hereinafter the “2001 sentences”).

Beyond these bits of information, gleaned from the
No. 08-1772 3

Presentence Investigation Report (PSR), the record is

silent in crucial respects. In particular, the record

does not establish whether the 2004 sentence had already

been discharged on the date of McNeil’s federal sentencing, March 7, 2008. This matters because it appears that

the district court would have ordered the federal sentence to run concurrent with any state sentence McNeil

was serving. If the 2004 sentence had already been discharged, then the court was correct to order the

federal sentence concurrent with only the 2001 sentences;

the court cannot order a sentence to run concurrent with

a nullity, see 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(c). But

if the 2004 sentence had not been discharged, it appears

from the circumstances that the district court would

properly have ordered the federal sentence to run concurrent with all three state sentences. It was incumbent

on the district court to figure this out.

Unfortunately, this issue was not addressed at McNeil’s

federal sentencing hearing. Instead, McNeil urged more

generally in his sentencing memorandum, and the government agreed, that “the Court should impose a sentence to run concurrent to the sentence imposed by the

State of Wisconsin resulting from McNeil’s possession

of the firearm charged in this case.” At sentencing,

McNeil’s attorney reiterated that, “[i]n the memorandum

I had also asked the Court in fashioning a sentence to

consider giving Mr. McNeil concurrent time for the

revocation time that he’s facing.” The government’s

attorney joined the recommendation for concurrent

time, noting that although such a position was unusual

for the government, it reflected the need to provide
4 No. 08-1772

McNeil with an incentive to plead guilty and also rewarded him for cooperating with law enforcement and

for pleading guilty early in the case. McNeil’s plea agreement memorializes the parties’ joint recommendation

that the federal sentence be ordered concurrent with any

state sentence resulting from McNeil’s gun possession,

and the PSR also states that the government “agrees to

recommend the sentence be concurrent to any sentence

imposed by the State of Wisconsin resulting from the

defendant’s possession of the firearm charged in this

case.” (Emphasis supplied.)

The district court found that McNeil’s guidelines sentencing range was 110 to 137 months, but that it was

capped at 120 months by the ten-year statutory maximum. 18 U.S.C. §§ 922(g), 924(a)(2). McNeil requested a

reduced sentence of 80 months to reflect his acceptance

of responsibility and his cooperation with police. The

government’s attorney also noted that 110 months, the

guidelines minimum, is “a lot of time . . . a good chunk of

time,” without making any more specific request

regarding the length of the sentence. The court imposed

a sentence of 84 months, to run concurrent with the two

2001 sentences, but did not mention the 2004 sentence.

McNeil’s assistant federal defender did not mention it

either, much less did she address whether it had been

discharged.

In ordering the federal sentence to run concurrent with

only the 2001 sentences, it appears that the district court

relied on the PSR, which stated that McNeil was on

supervised release for only the 2001 sentences at the
No. 08-1772 5

This section of the PSR also notes that, pursuant to U.S.S.G. 1

§ 5G1.3, Application Note 3(C), if the defendant was on parole

at the time of the instant offense, and had had that parole

revoked, “it is recommended the sentence for the instant offense

be imposed to run consecutively to the term imposed for the

revocation.” (Emphasis supplied.) The PSR accurately paraphrases the guidelines application note. Of course, the guidelines are advisory only, and the parties agreed to recommend

concurrent, rather than consecutive, time. The district court

therefore was within its discretion in declining to adopt

this aspect of the recommendation.

time of his arrest for the felon-in-possession charge. In

particular, the PSR notes that “[t]he defendant’s supervision in Case Nos. 01CF833 and 01CF2651 was revoked

for involvement in the instant offense.” This section of

the PSR does not mention the 2004 sentence. In a 1

separate document included in the record on appeal,

entitled “Sentencing Recommendation,” the same probation officer who prepared the PSR recommended a 137-

month sentence, to run consecutive to the 2001 sentences, again with no mention of the 2004 sentence.

Elsewhere, however, as we have already discussed, the

PSR does list the 2004 conviction and sentence, in the

section on McNeil’s criminal history. This section of the

PSR makes clear that McNeil was released on parole

on October 18, 2005, and that he was still on parole for

all three state convictions when he was arrested for the

felon-in-possession charge at issue here. Again, his

parole was revoked and he was resentenced for the

2004 conviction on January 24, 2008, and for the 2001
6 No. 08-1772

Nor did McNeil’s attorney specifically object to the PSR’s 2

recommendation that the federal sentence be consecutive to,

rather than concurrent with, the state sentences. It is clear,

however, that McNeil and the government agreed to an order

of concurrent time, which the district court appears to

have adopted.

State law does not help us answer these questions. Wisconsin 3

does not appear to have a rule dictating that sentences

initially ordered to run consecutively must, upon revocation

of parole and resentencing, also be consecutive. See State v.

Carter, 208 Wis.2d 142, 154–55, 560 N.W.2d 256, 261 (Wis. 1997)

(“When a resentencing is required for any reason, the initial

sentence is a nullity; it ceases to exist.”); see also State v.

(continued...)

convictions on February 5, 2008. The PSR does not specifically address whether the 2004 sentence was discharged

at the time the federal sentence was imposed. It merely

implies as much by virtue of its recommendation that

the federal sentence be ordered to run consecutive to

only the 2001 sentences. McNeil’s attorney did not object

to this omission from the PSR or request that the probation officer supplement the record. However, the 2004 2

sentence could have been imposed in a number of ways.

Questions to ask were whether the 2004 sentence was

ordered to commence on the date it was issued, or

whether, although it was issued two weeks prior to the

2001 sentences, it was ordered to run concurrent with

the 2001 sentences, or whether it was to run consecutive

to the 2001 sentences, and if so, whether the 2004

sentence or the 2001 sentences were to be discharged first.3
No. 08-1772 7

(...continued)

Thums, 295 Wis.2d 664, 672, 721 N.W.2d 729, 733 (Wis. Ct. App.

2006) (finding that on resentencing, “[t]he court may . . . revisit

whether the companion charges should be concurrent

or consecutive as the court sees fit”).

Nor does the record indicate whether McNeil received

credit for the state time he had already served by the

date of his revocation hearing and resentencing in

January 2008 (it appears he was in state custody from the

date of his arrest in July 2007). If McNeil received credit

for seven months of state custody (from the July 2007

arrest until the January 2008 state sentencing), then the

2004 sentence—which, recall, was only for three months

and one day—may have been discharged on the date it

was imposed. If, however, the 2004 sentence was

ordered to run consecutive to the 2001 sentences, he

would not have begun serving the 2004 sentence until

sometime after the federal sentencing on March 7, 2008.

It is also possible that McNeil began serving the 2004

sentence on January 24, the date it was imposed, or on

February 5, the date the new 2001 sentences were imposed. In either case, the 2004 sentence would not have

been discharged by March 7, when the district court

imposed the federal sentence.

At oral argument, McNeil’s attorney (who did not

handle the case in the district court) admitted that he did

not know whether the 2004 sentence had been discharged prior to the federal sentencing hearing. The

government’s attorney (also not the same attorney to

handle the case below) did not know either. He argued
8 No. 08-1772

only that it was logical to assume that the sentence had

been discharged based on the PSR, and urged that the

relevant question was whether the district court’s

reliance on the PSR was reasonable.

As we have already discussed, however, the PSR

makes it impossible to tell for sure whether McNeil was

serving the 2004 sentence at the time of his federal sentencing, and therefore it was unreasonable for the

district court not to supplement the record. Moreover, as

noted in the PSR, McNeil’s plea agreement includes a

joint recommendation that the federal sentence be “concurrent to any sentence imposed by the State of Wisconsin

resulting from defendant’s possession of the firearm

charged in this case.” This provision of the plea agreement is binding on the sentencing court under Federal

Rule of Criminal Procedure 11, and therefore the court

was required to order the federal sentence concurrent

with all undischarged state sentences once it accepted

the plea agreement. Fed. R. Crim. P. 11(c)(1)(C) (“[T]he

plea agreement may specify that an attorney for the

government will . . . agree that a specific sentence or

sentencing range is the appropriate disposition of the

case, or that a particular provision of the Sentencing

Guidelines, or policy statement, or sentencing factor

does or does not apply (such a recommendation or

request binds the court once the court accepts the plea

agreement).”); see also United States v. Cole, No. 06-2547,

slip op. at 7 (7th Cir. June 30, 2009) (discussing cases).

It almost goes without saying that, to fulfill this requirement, the sentencing court was bound to determine

the nature and number of all of McNeil’s undischarged

state sentences related to his gun possession.
No. 08-1772 9

We emphasize “particular” here because, as discussed above, 4

McNeil’s attorney did request that the federal sentence be

ordered “to run concurrent to the sentence imposed by the

State of Wisconsin resulting from McNeil’s possession of the

firearm charged in this case.” The sentence imposed by the

State of Wisconsin happens to include the sentence for the

2004 offense; but McNeil’s attorney did not spell that out or

object to the PSR recommendation, which addressed only the

2001 sentences. Nevertheless, even if McNeil’s failure to raise

this issue more particularly before the district court subjects

his claim to plain error review here, United States v. Olano, 507

U.S. 725, 732–36 (1993), as discussed infra, we find that the

district court plainly erred by not ordering the probation

office to supplement the record to determine the status of the

2004 sentence. Moreover, there were other aspects of the

probation office’s report and sentencing recommendation that

(continued...)

That the PSR failed to include sufficient information

for the district court to make that determination is particularly frustrating given that the Wisconsin Department of Corrections possesses documents that would

provide easy answers to these questions. Gathering such

information is one of the principal tasks of a probation

officer in preparing a PSR. The government’s attorney

acknowledged that the district court should have

ordered the probation office to supplement the record

when it determined that the PSR was not clear on this

point. The government’s attorney also argued, however,

that no one brought this particular issue to the district

court’s attention, and therefore that it had not been litigated, so the U.S. Attorney’s office did not chase down

the state conviction documents. Further, the govern- 4
10 No. 08-1772

(...continued)

should have put the court on notice that they might contain

errors and therefore should be read closely. The sentence

recommended was 137 months, the top end of the guidelines

range and a full 17 months above the statutory maximum. This

error was corrected at the sentencing hearing. The probation

office also recommended a consecutive sentence based on the

relevant guidelines application note, U.S.S.G. § 5G1.3, Application Note 3(C), even though the PSR clearly states that the

government agreed to concurrent time. This discrepancy passed

without comment at the hearing, possibly because it is simply

the probation office’s policy to recommend whatever the

guidelines recommend. Yet this inattention to detail should

have flagged the need to scrutinize the report.

ment’s attorney raised a practical difficulty routinely

faced by the U.S. Attorney’s office: determining where to

draw the line on fact-gathering for issues that may

never come up.

We recognize that there is a balancing act to be performed here. The government cannot be expected to

gather every piece of paper imaginable on the chance

that an issue will be litigated. We also emphasize what

is obvious: defense attorneys are wise to scrutinize

PSRs carefully before sentencing and to timely raise ambiguities and discrepancies. But where, as here, the PSR

omits crucial information, leaving ambiguity on the face

of that document about the nature of a defendant’s

state sentences, and therefore uncertainty about how the

federal sentence ought to be imposed, we find that it is

plain error not to supplement the record to resolve that

ambiguity. United States v. Olano, 507 U.S. 725, 732–36
No. 08-1772 11

(1993). The PSR’s omission could have affected McNeil’s

substantial rights (we cannot know for sure without

reviewing the Wisconsin sentencing documents). If the

2004 sentence had not been discharged at the time of

federal sentencing, then the federal sentence would run

consecutive to the 2004 state sentence, lengthening the

total time served by up to three months and one day.

See United States v. Jackson, 546 F.3d 465, 472 (7th Cir.

2008) (explaining that if the district court does not

specify whether sentences imposed at different times are

to run concurrently or consecutively, they will run consecutively) (citing 18 U.S.C. § 3584(a)). This state of

affairs certainly affects the fairness and integrity of the

judicial proceedings. We exercise our discretion to order

a remand for the court to determine whether the 2004

sentence had been discharged. Olano, 507 U.S. at 735–36.

McNeil also argues that it was plain error for the

district court not to reduce his federal sentence to

reflect the seven months and nineteen days he had

already spent in state custody at the time of his federal

sentencing. McNeil argues that the sentencing transcript

makes clear that the court intended his federal sentence

to be “fully concurrent” with his state sentences, and

that the only way for the district court to impose a

“fully concurrent” sentence was to reduce the federal

sentence by the amount of time already served on the

state sentences. The reason for this conclusion is that the

district court lacks the authority to order the Bureau of

Prisons to give credit for time served before the federal

sentence is imposed. United States v. Ross, 219 F.3d 592,

594 (7th Cir. 2000). McNeil concedes that his failure to

raise this issue below subjects it to plain error review.
12 No. 08-1772

But we see no error here. The district court calculated a

guidelines range of 110 to 120 months, and then ordered a

reduced sentence of 84 months to reflect McNeil’s acceptance of responsibility. The district court was not

required to reduce the federal sentence to reflect time

served in state custody, nor does McNeil argue that it

was. Instead, he argues merely that the district court

intended to order a so-called “fully concurrent” sentence.

But nothing in the record reflects such an intent. The

district court judge did not say that he wished he

could give McNeil credit for time served but that he

was unable to do so, nor did he attempt to order the

Bureau of Prisons to give him such credit, which, as

we have already stated, he was not authorized to do.

Nor did the judge state that he wished to make the sentences “fully concurrent.” McNeil makes no showing of

error here, much less of plain error, and therefore we

do not displace this aspect of the sentence.

We REVERSE AND REMAND McNeil’s sentence, so that the

district court may supplement the record to determine

the status of the 2004 sentence and whether the federal

sentence should be ordered to run concurrent with it

as well as with the 2001 sentences.

7-21-09