United States v. Dale Morrow, Jr. ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3006
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United States of America
Plaintiff - Appellee
v.
Dale Dexter Morrow, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 23, 2019
Filed: October 10, 2019
[Unpublished]
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Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.
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PER CURIAM.
Dale Dexter Morrow appeals his sentence, arguing that it is substantively
unreasonable. After the parties submitted their briefs, Morrow filed a motion to file
supplemental briefing. He claimed that he was assigned criminal history points for
a conviction based on an invalidated Illinois statute. See 720 Ill. Comp. Stat. 5/24-
1.6. We ordered the parties to file supplemental briefing.
The parties agree that plain error review applies. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 732 (1993) (“There must be an error that is
plain and that affect[s] substantial rights.” (internal quotation marks omitted and
alteration in original)). In the Government’s supplemental brief, it acknowledged
that Morrow was assessed three criminal history points based on a statute invalidated
by the Illinois Supreme Court and that the error is plain. See People v. Aguilar, 2
N.E.3d 321 (Ill. 2013). The Government also conceded that the error affects
Morrow’s substantial rights. See United States v. Jenkins, 772 F.3d 1092, 1097 (7th
Cir. 2014) (holding that assigning a defendant three criminal history points under
720 Ill. Comp. Stat. 5/24-1.6 was plain error, vacating the sentence, and remanding
for resentencing). Both parties request that we remand the case for resentencing.
We thus vacate the sentence and remand the case to the district court for
resentencing.
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