United States of America v. Toya Olds

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 22, 2009
Decided October 20, 2009
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3746
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
TOYA OLDS,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 06 CR 207
Rudolph T. Randa,
Judge.
O R D E R
Toya Olds was part of a ring that starting in the mid‐1990s sold millions of dollars
worth of cocaine in Milwaukee, Wisconsin. She pleaded guilty to conspiracy to distribute
cocaine, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced, as a career offender, to 188 months’
imprisonment. Olds did not contest her career‐offender designation at sentencing or in her
appellate brief, but at oral argument we raised the possibility that the application of the
guideline was erroneous because it was based, in part, on a conviction for “second‐degree
recklessly endangering safety.” See W IS . S TAT. § 941.30(2). As we recently held, this offense
is not a crime of violence. United States v. Bishop, No. 08‐1950, 2009 WL 2503646, at *1 (7th
Cir. Aug. 17, 2009); see also United States v. Woods, No. 07‐3851, 2009 WL 2382700 (7th Cir.
Aug. 5, 2009); United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008). And although we
ordinarily we do not evaluate issues not presented by the parties themselves, the error here
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐3746 Page 2
is plain, United States v. High, No. 08‐1970, 2009 WL 2382747, at *2 (7th Cir. Aug. 5, 2009),
and we are always free to correct a plain error on our own authority, FED. R. CRIM . P. 52(b);
United States v. Atkinson, 297 U.S. 157, 160 (1934); United States v. Neal, 512 F.3d 427, 439 n.11
(7th Cir. 2008); United States v. Muriel, 418 F.3d 720, 723 n.1 (7th Cir. 2005).
Olds’s sentence is VACATED, and the case is REMANDED for resentencing.

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