Opinion
No. 08-3746.
Argued April 22, 2009.
Decided October 20, 2009.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 CR 207. Rudolph T. Randa, Judge.
Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Glen B. Kulkoski, Carr, Kulkoski Stuller, New Berlin, WI, for Defendant-Appellant.
Before DANIEL A. MANION, Circuit Judge, MICHAEL S. KANNE, Circuit Judge and DIANE S. SYKES, Circuit Judge.
ORDER
Toya Olds was part of a ring that starting in the mid-1990s 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 career-offender 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 "second-degree 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, 341 Fed.Appx. 239, 240 (7th Cir. 2009); see also United States v. Woods, 576 F.3d 400 (7th Cir. 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 is plain, United States v. High, 576 F.3d 429, 430-31 (7th Cir. 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, 56 S.Ct. 391, 80 L.Ed. 555 (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.