United States of America v. Jevon M. Jenkins

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3409
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEVON M. JENKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:12-cr-30239— G. Patrick Murphy, Judge.
ARGUED SEPTEMBER 15, 2014 — DECIDED DECEMBER 1, 2014
Before FLAUM, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. In 2011, Jevon Jenkins pled guilty in
Illinois state court to one felony count of Aggravated Unlawful
Use of a Weapon (“AUUW”), in violation of 720 ILCS 5/24-
1.6(a)(1). He received a sentence of probation. Following
Jenkins’s conviction, both this court and the Supreme Court of
Illinois held the portion of the AUUW statute under which he
was convicted to be facially unconstitutional.

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2 No. 13-3409
In October of 2013, Jenkins pled guilty in United States
District Court to one count of aiding and abetting a kidnap-
ping, in violation of 18 U.S.C. §§ 1201(a)(1) and (2) and re-
ceived a federal sentence of 168 months.
In Jenkins’s federal presentence report, the probation officer
recommended three criminal history points due to the prior
Illinois AUUW conviction. The district court adopted those
findings and assessed a resultant criminal history category of
III. The district court determined that this category, combined
with Jenkins’s offense level of thirty-three, resulted in a
sentencing range of 168–210 months.
In this federal appeal, Jenkins argues that the district court
erred when it assessed three criminal history points based on
Illinois’s constitutionally invalidated AUUW statute. Jenkins
argues that he should have been assessed only one criminal
history point and a criminal history category of I, which would
have resulted in a sentencing range of 135–168 months.
Because the criminal history points assessed by the district
court were plainly erroneous, we vacate and remand for
resentencing.
I. BACKGROUND
A. Facts and Procedural History
In July 2012, Jevon Jenkins (“Jenkins”), his brother Antwon
Jenkins (“Antwon”), and several other individuals participated
in the kidnapping of victim Amir Hunt. Antwon claimed that

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No. 13-3409 3
Hunt had stolen money and an Xbox video gaming console
from his home in Cahokia, Illinois. In an attempt to recover the
purportedly stolen property, Antwon lured Hunt to a resi-
dence in East St. Louis, Illinois. There, the perpetrators at-
tempted to force a confession from Hunt by severely beating
him and threatening to further injure or kill him. The victim
insisted that he had not stolen the property.
Antwon and several other participants eventually placed
Hunt into Antwon’s truck and transported him into Missouri.
Antwon twice stopped the truck and threatened to kill Hunt if
he did not turn over the items. During the second stop,
Antwon ordered Hunt out of the truck and instructed him to
lie on his stomach, so that he could be shot. Hunt instead fled
into a nearby wooded area. A Missouri State Highway Patrol-
man later found him severely injured on the side of the road.
The allegedly stolen property was found later that day at
Antwon’s residence in Cahokia.
Jenkins was indicted by a federal grand jury and charged
that he “did unlawfully seize, confine, inveigle, kidnap, abduct,
or carry away, and hold for ransom or reward or otherwise,
[Hunt] and did wilfully transport [Hunt] in interstate com-
merce” in violation of 18 U.S.C. §§ 1201(a)(1) and (2). Jenkins
ultimately entered an open plea of guilty, and the case pro-
ceeded to sentencing.
The district court held Jenkins’s sentencing hearing on
October 28, 2013. In advance of sentencing, the United States
Probation Office (“Probation”) prepared and submitted a

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4 No. 13-3409
presentence report (“PSR”). Probation assigned a base offense
level of thirty-two. It recommended four additional levels: two
because the victim sustained serious bodily injury, and two
because a dangerous weapon was used during the offense.
Probation then recommended deducting three levels for
acceptance of responsibility, resulting in a total offense level of
thirty-three.
Probation then assessed Jenkins’s prior criminal history,
assigning four criminal history points. Three of these points
arose from a 2011 firearms conviction in St. Clair County,
Illinois: one point for the conviction itself and two points
because Jenkins was on probation for the firearms offense
when he committed the instant offense. The PSR did not1
specify the specific statutory provision under which Jenkins
was convicted—it referred to the offense simply as “Aggra-
vated Unlawful Use of Weapon.” Based on the sentencing table
in U.S.S.G. Chapter 5, Part A, four criminal history points
resulted in a criminal history category of III. Given the offense
level of thirty-three and the criminal history category of III,
Jenkins faced a guideline range of 168–210 months.
Jenkins objected to the PSR’s two-level dangerous weapon
enhancement. The district court overruled the objection and
adopted the range of 168–210 months. The government
recommended a sentence of 210 months, and Jenkins recom-
Probation also assessed one point for an unrelated conviction that is not
1
at issue in this appeal.

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No. 13-3409 5
mended a sentence of 120 months. The district court then
sentenced Jenkins to 168 months.
B. Moore and Aguilar
The firearms offense referenced in the PSR resulted from
Jenkins’s May 2011 guilty plea to the felony of Aggravated
Unlawful Use of a Weapon, in violation of 720 ILCS 5/24-
1.6(a)(1). He was given eighteen months’ probation and
assessed a $1,170 fine.
In December 2012, under a facial challenge, this court held
that the provisions of the AUUW statute under which Jenkins
was convicted violated the Second Amendment’s right to bear
arms for self-defense outside the home. Moore v. Madigan, 702
F.3d 933, 942 (7th Cir. 2012), reh’g en banc denied, 702 F.3d 901
(7th Cir. 2013). We stayed the mandate for 180 days to allow
the State of Illinois the opportunity to revise the law.
In September of 2013, the Supreme Court of Illinois held
that the statute violated the Second Amendment, finding 720
ILCS 5/24-1.6(a)(1) to be facially unconstitutional. People v.
Aguilar, 2 N.E.3d 321, 328 (Ill. 2013).
Jenkins was sentenced one month after the Aguilar decision
was rendered. He did not raise any objections in the district
court to the assessment of points for the AUUW conviction.
The St. Clair County Circuit Court vacated Jenkins’s AUUW
conviction on May 2, 2014. Agreed Order Granting Defendant’s

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6 No. 13-3409
Petition for Post-Judgment Relief, People v. Jenkins, No. 2010-CF-
678 (Cir. Ct. St. Clair Co., May 2, 2014).
II. ANALYSIS
Jenkins raises only one argument on appeal. He argues that
the district court erred when it relied on his conviction under
720 ILCS 5/24-1.6(a)(1) to assign him three criminal history
points and a resulting criminal history category of III. Because
the statute had already been held facially unconstitutional at
the time of sentencing, Jenkins argues that the district court
erred in considering that conviction for the purposes of
sentencing.
A. Waiver and Forfeiture
To decide Jenkins’s claim, we must first determine whether
Jenkins waived or forfeited his argument below. We typically
review procedural errors at sentencing de novo. United States v.
Samuels, 521 F.3d 804, 815 (7th Cir. 2008). If, however, Jenkins
waived his argument below, appellate review is precluded.
United States v. Jaimes-Jaimes, 406 F.3d 845 (7th Cir. 2005). If the
defendant failed to raise the relevant objection below via
forfeiture, we review for plain error. United States v. Martin, 692
F.3d 760, 766 (7th Cir. 2012).
The government argues that Jenkins waived his right to
challenge the assessment of points for the AUUW conviction.
Waiver occurs when a defendant intentionally relinquishes a
known right. Jaimes-Jaimes, 406 F.3d at 847. The government

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No. 13-3409 7
asks us to infer that Jenkins knew about and intentionally
chose not to raise the AUUW argument, noting that Jenkins
was represented by counsel, reviewed the PSR, and raised a
different objection to the PSR’s assessment of points.
We decline to draw the inference suggested by the
government. Without the three points attributable to the
AUUW conviction, Jenkins would have been assessed a
criminal history category of I. The Guidelines recommendation
for Jenkins’s sentence under those circumstances—a criminal
history category I and an offense level of thirty-three—would
have been 135–168 months. This significantly changes the low-
end of Jenkins’s sentencing range by thirty-three months, or
just under three years.
We can conceive of no reason why Jenkins would have
intentionally relinquished an objection certain to result in a
lower criminal history score and sentencing range, nor has the
government offered one. See United States v. Brodie, 507 F.3d
527, 532 (7th Cir. 2007); see also Jaimes-Jaimes, 406 F.3d at 848. In
addition, we have consistently held that waiver principles
should be construed liberally in favor of the defendant. Jaimes-
Jaimes, 406 F.3d at 848-49; United States v. Sumner, 265 F.3d 532,
539 (7th Cir. 2001); United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001); United States v. Perry, 223 F.3d 431, 433 (7th Cir.
2000). For these reasons, we find that Jenkins did not waive this
objection below.
Rather, we find that Jenkins’s failure to object to the PSR’s
inclusion of the AUUW conviction resulted from “an oversight

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8 No. 13-3409
by defense counsel and was therefore accidental rather than
deliberate.” Jaimes-Jaimes, 406 F.3d at 848. This is the hallmark
of forfeiture, which is the failure to timely assert a right. United
States v. Olano, 507 U.S. 725, 733 (1993). Jenkins’s trial counsel
negligently overlooked the objection and failed to put forward
an argument that would have resulted in a lower criminal
history score for his client.
Indeed, not only did defense counsel overlook the error,
but the Assistant United States Attorney and Probation did so
as well. As a result, the error was not brought to the attention
of the district court.
As we have previously noted, “it would be unjust to place
the entire burden for these oversights on [the defendant].”
United States v. Doss, 741 F.3d 763, 768 (7th Cir. 2013). We
adhere to our prior holdings that a defendant’s failure to object
to a criminal history calculation subjects him to plain error
review on appeal. See United States v. Fluker, 698 F.3d 988, 1003
(7th Cir. 2012). We apply that standard of review here.
B. Plain Error in Criminal History Point Assessment
Under the plain error standard, “we will reverse the district
court’s sentencing determination only when we find: (1) an
error or defect (2) that is clear or obvious (3) affecting the
defendant’s substantial rights (4) and seriously impugning the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Goodwin, 717 F.3d 511, 518 (7th
Cir. 2013), cert. denied, 134 S. Ct. 334 (2013).

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No. 13-3409 9
We have repeatedly held that “a sentencing based on an
incorrect Guidelines range constitutes plain error and warrants
a remand for resentencing, unless we have reason to believe
that the error in no way affected the district court’s selection of
a particular sentence.” United States v. Love, 706 F.3d 832, 841
(7th Cir. 2013) (internal brackets and quotation marks omitted).
Jenkins’s sentence was based on an incorrect guideline range
and warrants remand.
Under the Sentencing Guidelines, a defendant is assessed
one point for any prior conviction for which less than sixty
days’ imprisonment was imposed, and two additional points
if the defendant committed the instant offense while under a
prior criminal justice sentence, including probation. U.S.S.G. §
4A1.1(c), (d). But an exception to that rule appears in
Application Note 6 to § 4A1.2:
Reversed, Vacated, or Invalidated Convictions. –
Sentences resulting from convictions that (A) have been
reversed or vacated because of errors of law or because
of subsequently discovered evidence exonerating the
defendant, or (B) have been ruled constitutionally invalid
in a prior case are not to be counted.
Subsection (B) imposes two requirements in order for a
prior sentence to result in an assessment of zero points: (i) the
sentence resulted from a conviction that was ruled
constitutionally invalid; and (ii) that ruling occurred in a prior
case. Jenkins’s sentence following his AUUW conviction meets
both of those requirements. Under the plain language of

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10 No. 13-3409
subsection (B), therefore, the three points assigned by the trial
court as arising from Jenkins’s AUUW conviction should not
have been counted. Jenkins should have been assigned only
one criminal history point.
Both this court and the Supreme Court of Illinois held the
applicable portion of the AUUW statute to be constitutionally
invalid. Moore, 702 F.3d at 942; Aguilar, 2 N.E.3d at 328. In
Illinois, when a statute is held to be facially unconstitutional, it
is deemed void ab initio—that is, “as if the law never existed.”
People v. Tellez-Valencia, 723 N.E.2d 223, 225 (Ill. 1999); People v.
Carrera, 783 N.E.2d 15, 23 (Ill. 2002). The Supreme Court of
Illinois has held that the void ab initio doctrine’s effect is to
render a defendant’s conviction void because “the statute
under which [the defendant] was charged and prosecuted was
not in effect when the alleged offenses occurred.” Tellez-Valencia,
188 Ill.2d at 526 (holding that even the defendants’ charging
instruments failed to state an offense because the authorizing
statute was later held facially unconstitutional) (emphasis
added). Indeed, the government does not appear to contend
that Jenkins’s conviction and sentence were anything other
than void at the time of his sentencing for the instant offense.
Jenkins therefore satisfies the first requirement of subsection
(B), that his sentence was ruled constitutionally invalid.
Jenkins also fulfills the rule’s second requirement: his
sentence was ruled constitutionally invalid “in a prior case.”
Jenkins was sentenced after both Moore and Aguilar were
decided: Moore predated Jenkins’s sentencing by ten months,

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No. 13-3409 11
and Aguilar by one month. Moore and Aguilar are both,
therefore, prior cases.
The government argues, however, that Jenkins does not
satisfy the “prior case” requirement and that there was
therefore no error in this case. The government asks us to
construe the words “in a prior case” to require that a
defendant’s sentence have been ruled constitutionally invalid
by the specific court that imposed the sentence. Under that reading,
because this court and the Supreme Court of Illinois
invalidated the AUUW statute, as opposed to the St. Clair
County Circuit Court, Jenkins’s sentence was not “held
constitutionally invalid in a prior case.” We cannot adopt the
government’s proposed construction.
First, the government’s reading would require us to inject
language into the rule that is not present—a practice that we
ordinarily resist. See Dean v. United States, 556 U.S. 568 (2009).
Second, the government’s construction would require us to
read the rule’s indefinite article “a” to mean “the” prior case,
contrary to the provision’s plain language. And finally, the
government’s proposed reading ignores the fact that a decision
by the Supreme Court of Illinois is binding on all lower courts,
including the court that convicted Jenkins. The Supreme
Court’s holding in Aguilar renders the convictions entered in
any court in the state of Illinois invalid, including in the Circuit
Court of St. Clair County.
We therefore conclude that under Application Note 6 to
Section 4A1.2, the trial court erred when it assigned three

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12 No. 13-3409
criminal history points as arising from Jenkins’s previously
invalidated AUUW conviction. Jenkins should have been
assessed only one criminal history point.
The government argues in the alternative that any error in
the assignment of criminal history points is not plain.
According to the government, because the PSR’s presentation
of the AUUW conviction “appeared facially valid” to the
district court, the error in point assignment cannot be plain. We
reiterate the consistent holding of this court that “a sentencing
based on an incorrect guidelines range constitutes plain error.”
Love, 706 F.3d at 841. A district court’s adoption of erroneous
information in a PSR that results in an incorrect Guidelines
range, however correct such information appears, constitutes
plain error on review. See United States v. Martin, 692 F.3d 760,
766 (7th Cir. 2012) (finding plain error where PSR misstated the
applicable guidelines range for particular offenses); United
States v. Garrett, 528 F.3d 525, 529 (7th Cir. 2008) (finding plain
error where PSR erroneously included an ineligible
misdemeanor conviction in its criminal history point count);
Jaimes-Jaimes, 406 F.3d at 850 (7th Cir. 2005) (finding plain error
where PSR incorrectly characterized an offense as a crime of
violence).
We have no reason to believe that the district court was
unaffected by the error and that it would not have imposed a
lower sentence if able to do so. See United States v. Wallace, 32
F.3d 1171, 1174 (7th Cir. 1994) (holding that “[a]lthough the
sentencing that the district court selected in this case is within
the correct as well as the incorrect Guidelines range, we must

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No. 13-3409 13
remand unless we have reason to believe that the error did not
affect the district court's selection of a particular sentence”).
The error affected Jenkins’s substantial rights, because it
increased his sentencing range from 135–168 months to
168–210 months. We elect to exercise our discretion to correct
the error, because the increase in sentencing range impacted
the fairness of the proceedings.
III. CONCLUSION
Jenkins’s sentence is VACATED, and this case is REMANDED
to the district court for resentencing.

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