In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3495

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

M ARK C. B URGE,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Central District of Illinois.
             No. 11-cr-30003—Richard Mills, Judge.



       A RGUED A PRIL 10, 2012—D ECIDED JUNE 27, 2012




 Before P OSNER, R OVNER, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. One December day, de-
fendant Mark Burge’s llama escaped from its pen and
wandered off. For failing to prevent this escape, Burge
was charged with misdemeanor abandonment under
the Illinois animal cruelty statute. Rather than hire a
lawyer to defend against the charge, Burge chose to
plead guilty and pay a $525 fine, likely expecting to put
the matter behind him. Three years later, though, Burge
2                                             No. 11-3495

again pled guilty to a crime — this time a federal
charge for possession of several hundred marijuana
plants — and the llama incident returned with a ven-
geance. The marijuana conviction called for a manda-
tory minimum ten years in prison. Yet but for the misde-
meanor llama conviction, Burge could have avoided
the mandatory minimum by qualifying for the statutory
safety valve, see 18 U.S.C. § 3553(f), and his guideline
sentencing range would have been 18 to 24 months in
prison. The parties and the district court proceeded in
the district court on the assumption that the llama con-
viction should count as one criminal history point. That
was his second point and prevented use of the safety
valve, which is limited to defendants with no more
than one point. Burge was sentenced to ten years.
  Burge has appealed. As we explain below, we agree
with the government that Burge’s llama conviction is
similar to misdemeanors listed in subsection 4A1.2(c) of
the Sentencing Guidelines as offenses that should not
count for any criminal history points. Application of that
provision would have allowed the district court to
reach the result that it felt was just here, and it was
plain error not to do so in these circumstances. We
vacate the sentence and remand to allow the court to
apply subsection 4A1.2(c) and to consider application
of the statutory safety valve to Burge and his sentence.


I. Factual and Procedural Background
  Mark Burge owned land in central Illinois where he
sometimes kept a llama, and where he later cultivated a
No. 11-3495                                                  3

patch of more than two hundred marijuana plants. Acting
on a tip, police observed the plants first from an air-
plane and then from the railroad tracks bordering the
property. Based on those observations, they obtained a
search warrant and then found and seized the marijuana
plants and arrested Burge. He was charged with
possessing at least one hundred marijuana plants with
intent to distribute in violation of 21 U.S.C. § 841(a)(1).
The district court denied Burge’s motion to suppress
evidence, finding that the search warrant was supported
by probable cause. Burge then entered a conditional
guilty plea that reserved the right to challenge both
that ruling and his sentence.
   At sentencing, the district court applied the Guide-
lines, first calculating Burge’s offense level to be 15
after a discount for acceptance of responsibility, and
then calculating his criminal history category. Burge
was assigned, and did not challenge, one criminal
history point for a prior felony conviction for possessing
firearms without the proper permit and possessing less
than thirty grams of marijuana. He was also assigned one
point for his prior Class A misdemeanor conviction
under 510 ILCS 70/3.01, which states in relevant part
that: “no owner may abandon any animal where it may
become a public charge or may suffer injury, hunger or
exposure.” 1 Those two criminal history points put Burge



1
  The pre-sentence report did not provide information about
the particulars of the conduct underlying this conviction, but
                                                 (continued...)
4                                              No. 11-3495

into criminal history category II, raising his guideline
sentencing range for offense level 15 from 18-24 months
to 21-27 months.
  A statutory mandatory minimum sentence trumps the
relatively modest guideline range for Burge’s offense.
21 U.S.C. § 841(b)(1)(B) requires a sentence of not less
than five years for possession of one hundred or more
marijuana plants, which is increased to not less than
ten years if the defendant (like Burge) has a prior
felony drug conviction. Seeing no basis for avoiding
the mandatory minimum sentence, the district judge
reluctantly sentenced Burge to ten years in federal prison.


II. The Search Warrant
  Before turning to the sentencing issue, we address
briefly Burge’s argument that the search warrant was not
supported by probable cause. We affirm the district
court’s ruling on that point and thus affirm Burge’s
conviction. The search warrant here was based on aerial
observation of what appeared to be marijuana plants on
Burge’s property and by confirmation of those observa-
tions on the ground from the border of Burge’s property,


1
  (...continued)
the language of the charge made it clear that Burge was
charged with abandonment and not the adjacent prohibition
against beating, cruelly treating, starving, or overworking
an animal. Burge’s counsel represented at the sentencing
hearing that the alleged “abandonment” involved the llama’s
escape from its pen.
No. 11-3495                                                5

where the officers had a right to stand and look. Absent
some reason to doubt the veracity of the affidavit, the
officers’ direct observations of what they believed
from training and experience to be marijuana plants
provided probable cause to issue a search warrant. See,
e.g., California v. Ciraolo, 

, 213-14 (1986)
(noting that “such observation is precisely what a
judicial officer needs to provide a basis for a warrant”).
The officers here went beyond what the officers in
Ciraolo were able to do and corroborated their airborne
observations from the ground — identifying the plants
again from the edge of Burge’s property. We review
district court determinations as to the existence of
probable cause de novo, but we defer more broadly to
the underlying determination of the issuing magistrate
so long as there was a “substantial basis” for the finding.
See Illinois v. Gates, 

, 236 (1983); accord,
United States v. McIntire, 

, 578 (7th Cir. 2008).
Neither judge erred here. The warrant was supported
by probable cause and the resulting evidence was ad-
missible. Burge’s conviction stands.


III. Safety Valve Eligibility
  The ten-year mandatory minimum sentence was
correct unless Burge qualified for the safety valve under
section 3553(f). He can qualify only if his llama con-
viction does not count as a criminal history point. On
appeal, Burge has argued that his llama conviction
should not count because he did not have an attorney
and was actually innocent of the crime. The district
6                                               No. 11-3495

court correctly rejected these arguments. Controlling
precedents from the Supreme Court and our court barred
Burge from re-litigating the validity of the llama convic-
tion. Custis v. United States, 

, 490-91 (1994),
limited the scope of collateral attacks on state con-
victions during federal sentencing, and Nichols v. United
States, 

, 749 (1994), held that uncounseled
misdemeanor convictions that did not result in a prison
term can be counted in sentencing. See also United States
v. Katalinich, 

, 1481 (7th Cir. 1997) (ap-
plying Nichols); United States v. Hoggard, 

, 542-
43 (7th Cir. 1995) (applying Custis and noting the pre-
sumption of regularity that applies to state judicial pro-
ceedings in this context). Burge has argued that we
should reconsider these precedents, but of course we
are not empowered to overrule the Supreme Court
or to refuse to apply its holdings to indistinguishable
situations.
  As it turns out, however, a much better argument was
available to Burge. Subsection 4A1.2(c) of the Guidelines
directs courts not to count prior offenses as criminal
history points if they are “similar to” certain listed
crimes that are themselves never counted. After we
raised the issue during oral argument, the parties sub-
mitted supplemental briefs. In the finest tradition of the
Department of Justice, the government’s supplemental
brief carefully analyzed the subsection and ultimately
recommended that we remand for re-sentencing. We
track much of that analysis in our discussion of the issue.
  Absent “significant procedural error,” we ordinarily
review the reasonableness of a district court’s sentence
No. 11-3495                                                 7

under a deferential abuse-of-discretion standard. Gall v.
United States, 

, 51 (2007); United States v. Scott,

, 608 (7th Cir. 2009). Applications of the
Sentencing Guidelines, on the other hand, are reviewed
de novo, with deference given to the district court’s
factual findings. E.g., United States v. Samuels, 

, 815 (7th Cir. 2008). If the district court had made a
legal determination that Burge’s llama conviction did
(or did not) qualify to be counted in the criminal
history calculation, we would review de novo that ap-
plication of the law to facts. See United States v. Gar-
rett, 

, 527 (7th Cir. 2008); United States v.
King, 

, 536 (7th Cir. 2007). But Burge did not
raise subsection 4A1.2(c) of the Guidelines with the
district court or in his initial appeal briefs.
  If the omission was intentional, that would be a
waiver that would bar our consideration of the issue,
but if the omission was a negligent oversight, the issue
would have been only forfeited, allowing review for
plain error. E.g., United States v. Anderson, 

,
1001 (7th Cir. 2010). The government has not proposed
any strategic justification that might suggest an affirma-
tive waiver of the issue, see 

in any
event, the government has voluntarily “waived waiver”
in the supplemental briefing. We find that Burge did
not waive but merely forfeited arguments concerning
subsection 4A1.2(c), and so we review for plain error. 

528 F.3d at 527. Plain error review
requires a showing that: (1) the district court erred, (2) the
error was plain (meaning “clear” or “obvious”), and
(3) the error affected the defendant’s substantial rights.
See United States v. Olano, 

, 732-34 (1993).
8                                              No. 11-3495

   We consider the third point first. While Burge’s
criminal history was light, it was just enough to
disqualify him from the statutory safety valve if the
llama conviction counted as a criminal history point.
The district court’s comments at sentencing show that
the treatment of the llama conviction had a substantial,
even dramatic, effect on Burge’s sentence. The judge
believed that a much lower guideline-range sentence
would have been sufficient to serve the purposes of
sentencing. We can presume that substantial rights are
affected when an error results in an incorrectly calculated
guideline range, at least in the absence of a contrary
indication from the district court. See 

(“a mistake in that calculation warrants
resentencing”). In light of both that presumption and the
judge’s comments, the effect on Burge’s rights is clear.
  Was there an error? The district court did not need
to revisit or invalidate the llama conviction to decline
to count it as one criminal history point. Instead, the
court only needed to analyze whether the conviction
was sufficiently similar to one of the listed offenses in
subsection 4A1.2(c) that are not counted toward
criminal history under the Guidelines. The statutory re-
quirement that the safety valve applies only to
defendants who have no more than one criminal history
point means that this aspect of the Guidelines is incorpo-
rated into the statutory standard: points must be “deter-
mined under the sentencing guidelines.” 18 U.S.C.
§ 3553(f)(1). The Guidelines instruct district courts how
to calculate a defendant’s criminal history category in
section 4A1.1, and they define relevant inputs to the
No. 11-3495                                                    9

calculation in section 4A1.2. The calculations are fact-
driven and formulaic, but the definitions regarding the
counting of certain misdemeanor offenses are open-ended
enough to require some judgment in their application.
  Subsection 4A1.2(c) instructs that prior felony sen-
tences are always counted in computing criminal his-
tory. Prior misdemeanors are counted unless they
fall within 4A1.2(c)(1) or (c)(2). Each paragraph includes
a long list of offenses. Paragraph (c)(1) lists disturbing
the peace, contempt of court, prostitution, trespassing,
resisting arrest, and others. Paragraph (c)(2) lists fish
and game violations, loitering, minor traffic violations
such as speeding, and several others. Each of these para-
graphs also applies to “offenses similar to” those listed.2
  Since 2007, the Guidelines have included an Applica-
tion Note directing a “common sense approach” to deter-
mine whether an unlisted offense is similar to one
included in subsection 4A1.2(c). United States Sen-
tencing Guidelines Manual § 4A1.2, commentary, note
12(A). Even before adoption of Application Note 12,
our case law had required such an approach. See United


2
  Because Burge’s llama conviction and sentence (a
$525 fine) did not involve “a term of probation of more than
one year or a term of imprisonment of at least thirty days”
and was not “similar to an instant offense,” it does not count
as a criminal history point if similar to the offenses listed
in paragraph 4A1.2(c)(1). If it is similar to the offenses listed
in 4A1.2(c)(2) — which are never counted regardless of the
sentence imposed or resemblance to an instant offense — it also
does not count.
10                                              No. 11-3495

States v. Booker, 

, 689 (7th Cir. 1995). Among
the factors to be considered are: (1) a comparison of
punishments imposed for the listed and unlisted
offenses, (2) the perceived seriousness of the offense as
indicated by the level of punishment, (3) the elements
of the offense, (4) the level of culpability involved, and
(5) the degree to which the commission of the offense
indicates a likelihood of recurring criminal conduct. 

v. Hardeman, 

, 281 (5th
Cir. 1991); cf. United States v. Caputo, 

, 977
(7th Cir. 1992) (refusing to ignore an offense deemed
“categorically more serious” than the listed crimes).
   We conclude that abandonment of a llama in violation
of 510 ILCS 70/3.01 is sufficiently similar to a listed
offense that it should not be counted as a criminal
history point. The most promising analog listed in sub-
section 4A1.2(c) is “fish and game violations.” The Illinois
Wildlife Code contains a number of violations with
similar penalties, some of which are designed in part to
address actual and potential cruel treatment of animals.
For instance, the code prohibits certain harsh trapping
techniques such as the use of snares, deadfalls, or pit
traps. See 520 ILCS 5/2.33(b). Also, it is a Class A misde-
meanor in Illinois to use poisons, chemicals, or explosives
to kill wildlife, or to harass wildlife by using a vehicle.
See 520 ILCS 5/2.33(g), (i). If Burge had poisoned his
llama instead of merely allowing it to escape, he could
have been subject to the same or a similar penalty in
state court, but subsection 4A1.2(c) would have barred
counting a criminal history point and would have left
No. 11-3495                                             11

him eligible for the statutory safety valve on his federal
conviction.
   The government suggests that the most similar Illinois
fish and game violation to animal cruelty by way of aban-
donment is the prohibition on leaving captured animals
in hunting traps in violation of 520 ILCS 5/2.33a(a).
We agree. That violation would be a Class B mis-
demeanor and would carry a maximum sentence of six
months in custody and a maximum fine of $1,500. See
730 ILCS 5/5-4.5-60. Burge’s llama conviction was not
more serious than such Illinois game violations. Recall
that Burge paid a $525 fine and served no time in jail.
We recognize that the Illinois animal cruelty statute
includes provisions that could reach truly disturbing
conduct, including merciless beating and torture of ani-
mals. Our reasoning today does not address such crimes.
In this case, however, Burge’s level of culpability (a
factor in our analysis) is dramatically less severe. In
addition, nothing about the llama incident suggests a
likelihood of recurring criminal conduct (another fac-
tor). We have said that “the actual offense conduct and
the actual penalty deemed appropriate by the sentencing
court” are more significant to the analysis than the
abstract elements of the offenses or the ranges of possible
punishments. See 

. Here, Burge’s
conduct and penalty were consistent with a minor reg-
ulatory violation and do not suggest violence or deprav-
ity. In short, Burge’s llama conviction is similar to fish
and game offenses listed in paragraph 4A1.2(c)(2) and
should not have been counted as a criminal history
point in the district court’s calculations.
12                                              No. 11-3495

   Was the error plain? We have treated failure to
recognize that a similar offense is excludable under sub-
section 4A1.2(c) as a plain error in previous cases. See,
e.g., 

(plain error to count a con-
viction for bail jumping given its similarity to a listed
contempt charge); United States v. Hagenow, 

,
646-47 (7th Cir. 2005) (plain error to count a conviction
for possessing a police scanner given its similarity to
listed offenses of hindering or resisting police); see also
United States v. Spears, 

, 1088 (7th Cir. 1998)
(plain error to count juvenile convictions properly
excludable under subsection 4A1.2(d)).
   The practical effect of treating such errors as plain
errors is to impose on district courts (with the help of
probation officers) an independent duty to consider
whether prior offenses are listed in, or similar to those
listed in, subsection 4A1.2(c), at least when the offense
in question may have a significant effect on the
guideline calculation. This obligation is consistent with
and part of the general duty to apply the Guidelines. See
United States v. Booker, 

, 264 (2005) (“district
courts must consult the Guidelines and take them into
account when sentencing”); 18 U.S.C. § 3553(a)(4). That
duty exists even though the Guidelines are ultimately
only advisory. See United States v. Hawk, 

,
963 (7th Cir. 2006). When a mandatory minimum
sentence statute threatens to control the final outcome,
the availability of the section 3553(f) safety valve may
make it even more important that the defendant’s
criminal history points be calculated correctly.
No. 11-3495                                                13

  Courts of appeals are not required to correct all errors
even if they qualify as “plain.” Rule 52(b) of the Fed-
eral Rules of Criminal Procedure provides us with dis-
cretion to “correct a plain forfeited error affecting substan-
tial rights if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’ ”

, quoting United States v. Atkinson,

, 160 (1936). The government has urged us to
exercise this discretion in Burge’s favor and to remand
for resentencing, and again we agree. We have no
trouble seeing the serious impact on the fairness of
the proceedings here. This situation is comparable to
and perhaps even more compelling than those cases
where the improper classification of a prior offense as a
crime of violence can cause a similarly dramatic increase
in a sentence. See, e.g., United States v. Jaimes-Jaimes, 

, 851 (7th Cir. 2005) (“it would be unjust to place
the entire burden for these oversights on [defendant]
by permitting him to serve an excessive prison sentence”).
  Burge received ten years in prison instead of the
two years or less that the Guidelines would have ad-
vised. No one, including the district judge, the pros-
ecuting attorneys, defense counsel, or this court, found
that result to be appropriate under all the circum-
stances. And Congress has not compelled that result, at
least if the safety valve applies. In subsection 4A1.2(c),
the Guidelines provide examples rather than an ex-
haustive list of prior offenses that should not count as
criminal history points. This permits district courts to
use their judgment in situations involving unusual of-
fenses, such as negligent abandonment of a llama. It
14                                           No. 11-3495

would be manifestly unjust (and perhaps unbearably
ironic) for Burge to serve eight or more additional years
in a federal penitentiary because he once allowed his
llama to escape from its pen. The district court plainly
erred in failing to exclude Burge’s llama abandon-
ment conviction under subsection 4A1.2(c). The error
seriously affected Burge’s rights and the fairness of the
proceedings such that a remand for re-sentencing
is required.
   Even with his criminal history points reduced to
one—allowing him to meet the requirement of 18 U.S.C.
§ 3553(f)(1) — Burge must still qualify under the other
provisions of subsection 3553(f). Only the fifth require-
ment might be at issue. Per paragraph 3553(f)(5), Burge
must have “truthfully provided to the Government all
information and evidence” that he had “concerning
the offense . . . .” The district court did not decide
whether Burge met the truthful information require-
ment. Although there are indications in the record that
he did so, we do not have findings or a full record
on which to decide the issue ourselves in the first in-
stance. The district court should address the issue on
remand. Burge’s conviction is A FFIRMED, but his sentence
is V ACATED and the case is R EMANDED for re-sentencing.




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