United States v. Hagen

911 F.3d 891
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 2, 2019
DocketNo. 18-1579
StatusPublished
Cited by7 cases

This text of 911 F.3d 891 (United States v. Hagen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hagen, 911 F.3d 891 (7th Cir. 2019).

Opinion

Barrett, Circuit Judge.

Mandy Hagen was convicted twice under Illinois law for failing to get her children to school. When she later pleaded guilty in federal court for conspiring to distribute methamphetamine, the district court counted her two convictions for allowing child truancy toward her criminal history score. That was an error. Section 4A1.2(c) of the Sentencing Guidelines excludes certain crimes, and those "similar to" them, from a defendant's criminal history. One of the listed offenses is non-support, which involves failing to provide for a child's basic needs. Permitting truancy is a similar offense, and a less serious one at that. Hagen's criminal history score must be recalculated, this time excluding her two truancy-related offenses.

I.

In 2013, Mandy Hagen joined a scheme to distribute methamphetamine to several counties in Illinois. As part of this enterprise, she sold meth, provided ingredients and a venue for its manufacture, and collected drug debts. After a few close calls with law enforcement, Hagen was finally arraigned in May 2017. She pleaded guilty to a single count of conspiracy to distribute more than 50 grams of methamphetamine.

At sentencing, the government contended that the district court should count Hagen's two prior offenses for Guardian Allows Child Truancy, a crime under 105 Ill. Comp. Stat. 5/26-10, in calculating her criminal history score. See U.S.S.G. § 4A1.1(c). Hagen had pleaded guilty to this offense twice. During the 2013-14 school year, she allowed her child M.F. to be truant for 21 days. Then in 2015, she allowed another of her children, B.F., to accumulate 18 unexcused absences. Including these two convictions in the calculation of Hagen's criminal history score put her in a higher criminal history category than she would have otherwise been in.

Hagen objected to their inclusion, insisting that they fell within § 4A1.2(c) of the Guidelines, which excludes certain specific offenses-and those "similar to" them-from a defendant's criminal history. According to Hagen, Guardian Allows Child Truancy is similar enough to the listed excluded offense of "[j]uvenile status offenses and truancy" that it should be excluded. The government responded that permitting truancy is a more serious offense than actually being truant, since adult guardians are held to a higher standard of responsibility than are the children in their care. The district court sided with the government, and Hagen appeals that decision.

II.

Under the Guidelines, prior offenses-including misdemeanors and petty offenses-typically increase the defendant's criminal history score, which in turn *894affects the recommended sentencing range. But § 4A1.2(c) of the Guidelines provides two lists of offenses that courts are to treat differently when calculating a criminal history score. Section 4A1.2(c)(1) instructs that

[s]entences for the following prior offenses and offenses similar to them, by whatever name they are known, are counted only if (A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense[.]

It then lists various offenses, including careless driving, gambling, contempt of court, prostitution, and non-support. Section 4A1.2(c)(2) says that certain offenses should never be counted. Those include offenses such as fish and game violations, juvenile status offenses and truancy, loitering, and speeding. U.S.S.G. § 4A1.2(c)(2). Like § 4A1.2(c)(1), this section states that any offenses "similar to" the enumerated offenses, "by whatever name they are known," are not to be counted. Id.

Hagen concedes that allowing truancy is not specifically listed in either § 4A1.2(c)(1) or (c)(2). The question is whether her convictions should be excluded from her criminal history score because they are "similar to" one or more of those listed offenses. The Guidelines commentary on § 4A1.2(c) lists five factors for courts to consider in analyzing this issue: (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." U.S.S.G. § 4A1.2 cmt. 12(A). In applying these factors, courts are to take a "common sense approach." Id.

The Illinois Code makes it a crime for "[a]ny person having custody or control of a child ... to whom notice has been given of the child's truancy ... [to] knowingly and willfully permit[ ] such a child to persist in his truancy within that school year." 105 Ill. Comp. Stat. 5/26-10.1 A child is truant if he is "absent without valid cause ... from such attendance for more than 1% but less than 5% of the past 180 school days." 105 Ill. Comp. Stat. 5/26-2a. A guardian who allows truancy commits a Class C misdemeanor punishable by up to "30 days [of] imprisonment and/or a fine of up to $500." 105 Ill. Comp. Stat. 5/26-10. Class C misdemeanors are the least serious misdemeanors in the Illinois code. See 730 Ill. Comp. Stat. 5/5-4.5-10, 5/5-4.5-65. And the maximum fine for allowing truancy is lower than the usual $1,500 cap for a Class C misdemeanor in Illinois. See id. at 5/5-4.5-65(e).

Hagen's argument below was that her offenses were similar to "[j]uvenile status offenses and truancy," an offense listed in § 4A1.2(c)(2). She renews this argument on appeal. Her basic point is that Guardian Allows Child Truancy is nothing more than aiding and abetting truancy. If that's right, she says, then allowing truancy would be at most identical in seriousness to the underlying offense it abets, and it couldn't logically be worse.

We disagree. Adults who allow (or abet) truancy are more culpable than the truant children themselves. They are held to a higher standard than those in their care, and for good reason. Children can't generally be expected to understand the importance of their school attendance. But adults should know better.

*895The truancy laws in Illinois reflect this reasoning. The Illinois Code doesn't criminalize truancy by children-it doesn't even allow for any punitive action to be taken unless supportive services and resources have been provided to the student. 105 Ill. Comp. Stat. 5/26-12. But it does criminalize the allowance of truancy by a guardian. 105 Ill. Comp. Stat. 5/26-10. Indeed, "criminal proceedings under the [truancy statutes] are directed against those having custody of the child, not the child himself." In re K.S.Y. , 93 Ill.App.3d 6, 48 Ill.Dec. 463, 416 N.E.2d 736, 739 (1981). This is a significant difference in punishment, and it indicates different levels of seriousness between the offenses. We therefore conclude that Guardian Allows Child Truancy is not sufficiently similar to truancy itself to merit exclusion under that part of § 4A1.2(c)(2).

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Bluebook (online)
911 F.3d 891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hagen-ca7-2019.