USA v. Toya Olds

Filing 1

Opinion

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1

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. 083746 UNITED STATES OF AMERICA, PlaintiffAppellee, v. TOYA OLDS, DefendantAppellant. 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 mid1990s 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 careeroffender 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 "seconddegree recklessly endangering safety." See WIS. STAT. § 941.30(2). As we recently held, this offense is not a crime of violence. United States v. Bishop, No. 081950, 2009 WL 2503646, at *1 (7th Cir. Aug. 17, 2009); see also United States v. Woods, No. 073851, 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

No. 083746

Page 2

is plain, United States v. High, No. 081970, 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.