Case: 15-1686 Document: 14 Filed: 09/14/2015 …v. JOSHUA GILLESPIE, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the United States District Court for the Western District of

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 15-1686

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA GILLESPIE, Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Wisconsin Case No. 14-cr-00106-wmc Honorable William M. Conley Presiding

BRIEF OF PLAINTIFF-APPELLEE

John W. Vaudreuil United States Attorney Western District of Wisconsin Rita M. Rumbelow (lead counsel) Assistant U.S. Attorney Suite 700 222 W. Washington Avenue Madison, WI 53703 (608) 264-5158 TTY (608) 264-5006 Attorneys for Plaintiff-Appellee

Case: 15-1686 Document: 14 Filed: 09/14/2015 Pages: 23

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 15-1686

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA GILLESPIE, Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Wisconsin Case No. 14-cr-00106-wmc Honorable William M. Conley Presiding

BRIEF OF PLAINTIFF-APPELLEE


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................................................. ii

JURISDICTIONAL STATEMENT .................................................................................. 1

STATEMENT OF THE ISSUE ......................................................................................... 2

STATEMENT OF THE CASE.......................................................................................... 3

SUMMARY OF ARGUMENT ......................................................................................... 7

ARGUMENT ..................................................................................................................... 8

I. The Government Agrees That Johnson’s Vagueness Holding Applies In This Guidelines Case But Only A Limited Remand Is Required At This Time To Determine Whether Defendant Should Be Resentenced ................. 8

A. Standard of Review .................................................................................... 8

B. Discussion .................................................................................................... 8

CONCLUSION ................................................................................................................ 17


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TABLE OF AUTHORITIES

Page(s)

Descamps v. United States, 133 S. Ct. 2276 (2013) ................................................... 14, 15

Gall v. United States, 552 U.S. 38 (2007) ........................................................................ 11

Henderson v. United States, 133 S. Ct. 1121 (2013) ......................................................... 8

Irizarry v. United States, 553 U.S. 708 (2008) .......................................................... 12, 13

James v. United States, 550 U.S. 192 (2007) ...................................................................... 9

Johnson v. United States, 135 S. Ct. 2551 (2015) ..................................................... passim

Peugh v. United States, 133 S. Ct. 2072 (2013) ................................................... 11, 13, 14

Sykes v. United States, 131 S. Ct. 2267 (2011) .................................................. 4, 9, 10, 14

United States v. Alphas, 785 F.3d 775 (1st Cir. 2015) .................................................... 12

United States v. Batchelder, 442 U.S. 114 (1979) ............................................................ 13

United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015) ....................................... 12

United States v. Booker, 125 S. Ct. 738 (2005) ................................................................ 15

United States v. Booker, 543 U.S. 220 (2005) .................................................................. 14

United States v. Boose, 739 F.3d 1185 (8th Cir. 2014) ................................................... 10

United States v. Brooks, 468 Fed. Appx. 623 (7th Cir. 2012)........................................ 15

United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010) ............................................ 4, 14

United States v. Dominguez-Benitez, 542 U.S. 74 (2004) ................................................. 8


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United States v. Griffin, 652 F.3d 793 (7th Cir. 2011) ................................................... 10

United States v. Keys, 785 F.3d 1240 (8th Cir. 2015) ..................................................... 12

United States v. Kimbrough, 536 F.3d 463 (5th Cir. 2008) ............................................ 13

United States v. Maxwell, 724 F.3d 724 (7th Cir. 2013) ................................................ 16

United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012) .................................................. 11

United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) ................................................ 15

United States v. Taylor, 520 F.3d 746 (7th Cir. 2008) .................................................... 16

United States v. Taylor, 630 F.3d 629 (7th Cir. 2010) .................................................... 15

United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) ...................................... 7, 13, 14

United States v. Travis, 747 F.3d 1312 (11th Cir. 2014) ................................................ 10

United States v. Velzquez, 777 F.3d 91 (1st Cir. 2015) .................................................. 10

United States v. Woods, 576 F.3d 400 (7th Cir. 2009) ................................................... 14

RULES

Circuit Rule 28(b) .............................................................................................................. 1

STATUTES

18 U.S.C. § 922(g) .......................................................................................................... 3, 8

18 U.S.C. § 924(e) (Armed Career Criminal Act, ACCA) .................................. passim

18 U.S.C. § 3231 ................................................................................................................. 1

18 U.S.C. § 3553(a) .......................................................................................................... 12


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18 U.S.C. § 3742(a) ............................................................................................................ 1

28 U.S.C. § 1291 ................................................................................................................. 1

SENTENCING GUIDELINES

USSG § 2K1.3 ................................................................................................................... 10

USSG § 2K2.1(a) .......................................................................................................... 4, 10

USSG § 2S1.1 .................................................................................................................... 10

USSG § 4A1.1(e) .............................................................................................................. 10

USSG § 4A1.2(p) .............................................................................................................. 10

USSG § 4B1.1 ..................................................................................................................... 9

USSG § 4B1.2 ............................................................................................................ passim

USSG § 5K2.17 ................................................................................................................. 10

USSG § 7B1.1(a) ............................................................................................................... 10


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JURISDICTIONAL STATEMENT

The jurisdictional statement set forth in appellant’s brief is not complete

and correct. Accordingly, pursuant to Circuit Rule 28(b), the United States

submits the following jurisdictional statement.

I. District Court Jurisdiction

A. The district court’s jurisdiction was based on Title 18, United States

Code, Section 3231.

II. Appellate Court Jurisdiction

A. This Court’s jurisdiction is based on Title 28, United States Code,

Section 1291, and Title 18, United States Code, Section 3742(a).

B. Appellant Gillespie was sentenced on March 24, 2015, to 84 months

in prison, followed by a three-year term of supervised release. (R. 25, 27;

Appellant’s Appendix (App.) 1- 7). The judgment was docketed on March 25,

2015. (R. 27; App. 1 – 7).

C. Gillespie did not file a motion for a new trial, alteration of the

judgment, or any other motion having the effect of tolling which to appeal.

D. Gillespie filed a timely notice of appeal on March 30, 2015. (R. 30).


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STATEMENT OF THE ISSUE

Whether the district court plainly erred in holding that Wisconsin’s Fleeing

and Eluding statute is a crime of violence under the residual clause of U.S.S.G.

§ 4B1.2, and, if so, whether a limited remand is appropriate to determine whether

defendant should be resentenced.


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STATEMENT OF THE CASE

On October 9, 2014, a grand jury sitting in the Western District of

Wisconsin returned a one-count indictment charging appellant Gillespie with

violating Title 18, United States Code, Section 922(g)(1), as a felon in possession

of a firearm. (R. 1). Gillespie had been arrested on October 8, 2014, after officers

in Beloit, Wisconsin observed what they believed to be a drug transaction. (R. 15,

¶ 8). Gillespie failed to stop when police initiated a traffic stop and he

accelerated his speed. (Id.). Gillespie eventually parked his vehicle and fled on

foot. (Id.). He continued to disobey law enforcement orders and resisted arrest.

(Id.). A struggle ensued and the defendant threw a baggie from his hand. (Id.).

Defendant was arrested and between a search of his person, his vehicle, and the

area where he was subdued, officers recovered a loaded .357 Smith and Wesson

revolver, crack cocaine, two cell phones (one of which was actively scanning

police channels), and a digital scale. (Id.).

Gillespie was interviewed following his arrest and he said he possessed

the firearm for protection. (R. 15, ¶12). He told the arresting officers that he

“loved the game” and was addicted to the drug-dealing lifestyle. (Id.). He said

he did not enjoy working a normal job and that he would rather be charged with

possessing a firearm than being shot. (Id.).


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Gillespie’s criminal history began at the age of 12 and he had 19 criminal

history points, placing him in a criminal history category of VI. (R. 15, ¶¶ 33, 48).

He had previously been convicted of being a felon in possession of a firearm in

2012 and was on probation for that offense in October 2014. (R. 15, ¶ 45).

Appellant Gillespie entered a timely guilty plea on January 13, 2015. (R.

13). The presentence investigation report (PSR) was filed on February 13, 2015.

(R. 15). Paragraph 19 of the PSR recommended a base offense level of 20 under

U.S.S.G. § 2K2.1(a)(4) because appellant Gillespie had a 2010 Wisconsin

conviction for fleeing and eluding, a crime of violence under U.S.S.G. §

4B1.2(a)(2). (R. 15, ¶ 19).1 On March 3, 2015, Gillespie objected to paragraph 19,

claiming Wisconsin’s fleeing and eluding statute was indivisible and therefore

could not categorically be defined as a crime of violence. (R. 18). He did not

argue that the statute or guideline was void for vagueness. (Id.).

Gillespie was sentenced on March 24, 2015. (R. 25, 29). The district court

addressed his objection and held that United States v. Dismuke, 593 F.3d 582 (7th

Cir. 2010), and Sykes v. United States, 131 S. Ct. 2267 (2011), controlled. The

district court then calculated the guideline range, noting that if the enhancement

did not apply, Gillespie’s guideline range would be 51 to 63 months. (R. 29, p. 3;

1 Section 2K2.1(a)(4) cross-references the definition of crime of violence under the residual clause of U.S.S.G. § 4B1.2.


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App. 10). However, because of the enhancement, the guideline range was 92 –

115 months. (R. 29, p. 5; App. 12). After calculating the guidelines, the district

court stated “That’s an awful lot of, I’m almost inclined to say, gobbledegook.

The guidelines have – they have their problems, including problems that

historically have driven sentences, I think by consensus of Congress, too high.”

(R. 29, p. 6; App. 13).

After hearing comments from counsel and the defendant, the district court

further stated that “I will tell you that the guideline range is not the driver for the

Court now. It’s trying to arrive at an appropriate sentence, given all of the

history of this defendant and given the facts of his offense here.” (R. 29, p. 11;

App. 18). The district court found it “disturbing to think of a young man who’s

boastfully talking about adopting a lifestyle which involves drugs and guns,

which is the kind of combination that is either going to put you in prison for a

very long time –and you’re going to get a longer sentence than you’ve ever had

before today, substantially longer.” (R. 29, p. 13; App. 20).

The district court chose a sentence of 84 months, noting, among other

things, that Gillespie presents a danger to the community because of his current

and past involvement in drug distribution and possession of firearms. (R. 29, pp.

18, 19; App. 1-7; 25-26). The court acknowledged that the sentence would


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disappoint the defendant and the government, commenting that “[s]ometimes

they say that that means maybe I got it right.” (R. 29, p. 22; App. 29). Gillespie’s

term of imprisonment is to be followed by a three-year term of supervised

release. (App. 26). Gillespie filed his timely notice of appeal on March 30, 2015.

(R. 30).


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SUMMARY OF ARGUMENT

The government concedes that Johnson v. United States, 135 S. Ct. 2551

(2015) applies to the identically-worded residual clause definition of crime of

violence in U.S.S.G. § 4B1.2(a)(2). The government agrees with the defendant

that under Johnson, the guidelines’ residual-clause definition of crime of violence

is unconstitutionally vague, and also agrees that the Court should overrule

United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). Assuming this Court

agrees, the resulting error in the guidelines in this case is reviewed for plain

error, because Gillespie did not challenge Wisconsin’s fleeing and eluding statute

on vagueness grounds below.2

In light of the district court’s remarks at sentencing, particularly its

statement that its choice of a sentence was not being driven by the guidelines,

Gillespie is entitled at most to a limited remand to determine if the district court

would choose a different sentence.

2 At the time of Gillespie’s sentencing, the Supreme Court had granted certiorari in Johnson and it was first argued on November 5, 2014. Johnson, 135 S. Ct. 2551. Given the fact that the residual clauses in 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. § 4B1.2(a)(2) are identical, a similar challenge could have been raised below to avoid plain-error review.


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ARGUMENT

I. The Government Agrees That Johnson’s Vagueness Holding Applies In This Guidelines Case But Only A Limited Remand Is Required At This Time To Determine Whether Defendant Should Be Resentenced.

A. Standard of Review

Because Gillespie did not raise a vagueness challenge below, plain-error

review applies and he has the burden of showing that any Johnson error affected

his substantial rights and seriously affected the fairness, integrity or public

reputation of the judicial proceedings. Henderson v. United States, 133 S. Ct. 1121,

1126-27 (2013). Gillespie can only satisfy that burden if he shows a reasonable

probability that his sentence would be different on remand. United States v.

Dominguez-Benitez, 542 U.S. 74, 81-82 (2004).

B. Discussion

The Armed Career Criminal Act of 1984 (ACCA) provides for a mandatory

minimum sentence of 15 years of imprisonment for a defendant who violates 18

U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious

drug offense.” 18 U.S.C. § 924(e)(1). In Johnson v. United States, 135 S. Ct. 2551

(2015), the Supreme Court held that ACCA’s residual clause, i.e., the provision

that defines a “violent felony” to include an offense that “involves conduct that

presents a serious potential risk of physical injury to another,” 18 U.S.C.


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§ 924(e)(2)(B)(ii), is impermissibly vague and, therefore, imposing an increased

sentence under the residual clause “violates the Constitution’s guarantee of due

process.”3 See Johnson, 135 S. Ct. at 2563. The Court overruled its decisions in

James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 131 S. Ct.

2267 (2011), which previously rejected the contention of dissenting Justices that

the residual clause was vague. Johnson, 135 S. Ct. at 2563.

The career offender provision of the Sentencing Guidelines provides for

enhanced sentences for certain defendants who have two prior convictions for a

“crime of violence” or “serious drug offense.” Guidelines § 4B1.1. The definition

of “crime of violence” in Guidelines § 4B1.2 contains a residual clause that is

identical to ACCA’s residual clause. See Guidelines § 4B1.2(a)(2) (defining

“crime of violence” to include an offense that “otherwise involves conduct that

presents a serious potential risk of physical injury to another”). Because that

identical language is unconstitutionally vague under Johnson, a sentencing court

may not classify a defendant as a career offender based on an offense that

qualifies as a crime of violence under the residual clause.4

3 The relevant ACCA subsection, in full, defines a “violent felony” as an offense that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C § 924(e)(2)(B)(ii). 4 Johnson’s constitutional holding regarding ACCA’s residual clause also applies to other guidelines that use the career offender guideline’s definition of “crime of


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The career-offender guideline’s residual clause uses the same language

that Johnson held was impermissibly vague because it “produces more

unpredictability and arbitrariness than the Due Process Clause tolerates.” 135 S.

Ct. at 2558. Like other courts of appeals, this Court has held that ACCA’s

residual clause and the guideline’s residual clause must be interpreted in the

same way and has applied decisions interpreting the two provisions

interchangeably. United States v. Griffin, 652 F.3d 793, 802 (7th Cir. 2011) (“the

definition of ‘violent felony’ under the ACCA is the same as the definition of

‘crime of violence’ in section 4B1.2 of the guidelines, and it would be

inappropriate to treat identical texts differently just because of a different

caption”) (internal punctuation marks omitted). See also United States v.

Velázquez, 777 F.3d 91, 94-98 & n.1 (1st Cir. 2015) (interpreting guideline using

“ordinary case” analysis that Johnson found “speculative” and unreliable); United

States v. Travis, 747 F.3d 1312, 1314-1317 & n.2 (11th Cir. 2014) (applying James

and Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185, 1187 &

n.1 (8th Cir. 2014) (court construes ACCA “violent felony” and guidelines “crime

violence.” See Guidelines § 2K1.3 & comment n.2 (explosive materials guideline); Guidelines § 2K2.1 & comment. n.1 (firearms guideline); Guidelines § 2S1.1 & comment. n.1 (money laundering guideline); Guidelines §§ 4A1.1(e), 4A1.2(p) (criminal history guidelines); Guidelines § 5K2.17 & comment. n.1 (departure guideline for semi-automatic firearms); Guidelines § 7B1.1(a)(1) & comment. n.2 (probation and supervised release guideline).


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of violence” as “interchangeable”); United States v. Meeks, 664 F.3d 1067, 1070-

1072 & n.1 (6th Cir. 2012) (same analysis applies to ACCA and guidelines); The

ACCA cases on which courts have relied to decide whether offenses fall within

the guideline’s residual clause are now overruled, leaving courts with no body of

law to apply. After Johnson, judges attempting to determine whether a particular

offense qualifies as a crime of violence under the residual clause would be forced

to rely on “guesswork and intuition.” Johnson, 135 S. Ct. at 2559.

Application of a vague guideline conflicts with the proper role of the

guidelines in providing a uniform baseline for sentencing. Under the advisory

guidelines system, district courts are still required to “begin all sentencing

proceedings by correctly calculating the applicable Guidelines range” and to use

the guidelines as “the starting point and the initial benchmark” for sentencing.

Gall v. United States, 552 U.S. 38, 49 (2007); see Peugh v. United States, 133 S. Ct.

2072, 2083 (2013) (“That a district court may ultimately sentence a given

defendant outside the Guidelines range does not deprive the Guidelines of force

as the framework for sentencing.”). A district court that incorrectly calculates the

guidelines range is subject to reversal on appeal. Gall, 552 U.S. at 51; see Peugh,

133 S. Ct. at 2083 (“the rule that an incorrect Guidelines calculation is procedural

error ensures that they remain the starting point for every sentencing calculation


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in the federal system”). Accordingly, the use of a vague sentencing guideline to

calculate the defendant’s guidelines range violates due process because it

inevitably leads to unpredictable and arbitrary applications of the legal

framework for sentencing. See Johnson, 135 S. Ct. at 2557.

Consistent with sentencing courts’ discretion to sentence within or outside

the advisory guideline range, the Supreme Court has held that no notice is

required when a court imposes a sentence outside the guideline range based on

the factors in 18 U.S.C. § 3553(a), because defendants no longer have “[a]ny

expectation subject to due process protection” that they will receive a sentence

within the guideline range. Irizarry v. United States, 553 U.S. 708, 713 (2008). But

the guidelines are unlike the broad sentencing factors in Section 3553(a), in that

their function is to provide a precise starting point for sentencing. Courts have

discretion to weigh the Section 3553(a) factors and determine the appropriate

sentence, but they have no discretion about the proper legal interpretation of the

guidelines. This is evidenced by the numerous appellate decisions, involving

appeals brought by defendants and by the government, in which courts have

applied de novo review to questions of guidelines interpretation. See, e.g., United

States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015); United States v. Keys, 785

F.3d 1240, 1242 (8th Cir. 2015); United States v. Alphas, 785 F.3d 775, 780 (1st Cir.


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2015); United States v. Kimbrough, 536 F.3d 463, 465 (5th Cir. 2008). Moreover, the

notice concerns addressed in Irizarry are distinct from the danger of “arbitrary

enforcement by judges” presented by the residual clause. See Johnson, 135 S. Ct.

at 2557; id. at 2556 (Fifth Amendment forbids application of “a criminal law so

vague that it fails to give ordinary people fair notice of the conduct it punishes, or

so standardless that it invites arbitrary enforcement”) (emphasis added).

This Court previously held that guidelines provisions are not subject to

constitutional vagueness challenges because they “do not establish the illegality

of any conduct,” “are directives to judges for their guidance in sentencing

convicted criminals, not to citizens at large,” and merely “assist and limit the

discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358,

363-364 (7th Cir. 2012) (internal quotation marks omitted). But that precedent

predated, and is fatally undermined by, Johnson and Peugh. The Court’s decision

in Tichenor was premised on the view that sentencing provisions are not subject

to vagueness challenges. Johnson rejected that approach, holding that vagueness

principles “apply not only to statutes defining elements of crimes, but also to

statutes fixing sentences.” 135 S. Ct. at 2557 (citing United States v. Batchelder, 442

U.S. 114, 123 (1979)); cf. Tichenor, 683 F.3d at 365 (dismissing “[t]he isolated

comment from Batchelder” as “mere dictum”). Tichenor’s reasoning that the


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guidelines merely structure sentencing courts’ discretion was repudiated by the

Supreme Court’s decision in Peugh, in which the Court held that the Ex Post

Facto Clause applies to advisory guidelines. 133 S. Ct. at 2078. Peugh dismissed

the government’s argument that the guidelines were merely “guideposts” that

lacked “‘the force and effect of laws.’” Id. at 2085-2086 (quoting Booker, 543 U.S.

at 234). The Court identified numerous features of the post-Booker sentencing

system that ensure that the guidelines continue to have “legal force,” id. at 2087,

and serve as the “framework” for sentencing, even when a court ultimately

imposes a sentence outside the guidelines. Id. at 2083-2084. In light of Johnson

and Peugh, the government agrees with Gillespie that this Court’s decision in

Tichenor is no longer valid and should be overruled. See 7th Cir. R. 40(e) (setting

out procedure for overruling circuit precedent without convening full court for

hearing en banc).5

5 Johnson abrogated Sykes v. United States, 131 S. Ct. 2267 (2011), which found Indiana’s fleeing and eluding statute was a violent felony under the ACCA’s residual clause. This Court’s decision in United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010), pertaining to Wisconsin’s similar statute is, therefore, no longer viable. The government disagrees, however, with the defendant’s alternative argument that the Wisconsin statute is, contrary to Dismuke, indivisible. The government also disagrees with the appellant’s interpretation of state law and restrictive reading of the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013), on when and how to apply the modified categorical approach. (Appellant’s opening brief, pp. 19 – 22). The government opposes the means versus elements distinction defendant relies on as inconsistent with Descamps and notes this Court has not endorsed that distinction in analyzing divisible statutes. See, e.g. United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009)(a statute is divisible where it “creates several crimes or a single crime with several modes of


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However, given the district court’s comments at Gillespie’s sentencing, the

defendant cannot demonstrate that the court would have imposed a lower

sentence, had it known the residual-clause definition of a crime of violence was

void for vagueness. The Court, therefore, should remand for the limited purpose

of clarifying whether the district court would have issued a lower sentence in

this case. See, e.g. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005):

“The only practical way (and it happens also to be the shortest, the easiest, the

quickest, and the surest way) to determine whether the kind of plain error

argued in these cases has actually occurred is to ask the district judge.” The

Court in Paladino continued:

[W]hat an appellate court should do in Booker cases in which it is difficult for us to determine whether the error was prejudicial is, while retaining jurisdiction of the appeal, order a limited remand to permit the sentencing judge to determine whether he would (if required to resentence) re-impose his original sentence. If so, we will affirm the original sentence against a plain-error challenge provided that the sentence is reasonable, the standard of appellate review prescribed by Booker, 125 S. Ct. at 765.

commission. By ‘modes of commission’ we mean modes of conduct identified somehow in the statute”); United States v. Brooks, 468 Fed. Appx. 623, 627 (7th Cir. 2012)(unpublished), United States v. Taylor, 630 F. 3d 629, 633 (7th Cir. 2010). Although these cases pre-date Descamps, they are consistent with Descamps’s guidance. In any event, this Court need not reach this issue if it agrees that Johnson applies and warrants a limited remand in this case.


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Paladino, 401 F.3d at 484. See also United States v. Maxwell, 724 F.3d 724, 729 (7th

Cir. 2013) (applying limited-remand approach to determine if defendant’s

sentence would be the same under the Fair Sentencing Act); United States v.

Taylor, 520 F.3d 746, 788-799 (7th Cir. 2008) (applying limited-remand approach

for forfeited Kimbrough-type arguments regarding the disparities between crack

and powder cocaine).

On limited remand, should the district court indicate it would have

imposed the same sentence, Gillespie’s 84-month sentence should be affirmed as

reasonable. Only if the district court indicates it would impose a different

sentence will Gillespie be entitled to a remand for full resentencing.


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CONCLUSION

For the foregoing reasons, the government respectfully requests that the

Court order a limited remand to determine whether the district court would

impose a different sentence.

Dated this 14th day of September 2015.

Respectfully submitted, JOHN W. VAUDREUIL United States Attorney By: /s/ RITA M. RUMBELOW Assistant U. S. Attorney

CERTIFICATE OF SERVICE

I hereby certify that on September 14, 2015, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. /s/ SHARON MARTIN


Documents

Case: 15-1686 Document: 14 Filed: 09/14/2015 …v. JOSHUA GILLESPIE, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the United States District Court for the Western District of