                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3982
U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

C HAZ G ARRETT,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
             for the Western District of Wisconsin.
             No. 06 CR 102—John C. Shabaz, Judge.
                        ____________
        A RGUED M AY 7, 2008—D ECIDED JUNE 10, 2008
                        ____________


 Before B AUER, P OSNER and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. Garrett challenges the district
court’s calculation of his criminal history score under
the United States Sentencing Guidelines, arguing that the
court erred when it included his prior conviction for bail
jumping in its assessment of his criminal history. In this
appeal, we consider the issue of whether a state conviction
for bail jumping is “similar to” the offense of contempt of
court under the Sentencing Guidelines, which would
result in the exclusion of the conviction from a defend-
ant’s criminal history score. We find that it is, and for
reasons set forth below, we vacate the district court’s
2                                                  No. 06-3982

decision to include Garrett’s bail jumping conviction and
remand for resentencing.


                       I. Background
  In May of 2006, a federal grand jury indicted Garrett on
five counts relating to the distribution of crack cocaine.
Garrett pleaded guilty to Count Two of the indictment,
distribution of five or more grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), and the remaining counts
were dismissed pursuant to Garrett’s plea agreement. A
probation officer prepared the presentence investigation
report (“PSR”), which determined that Garrett distributed
between 500 and 1500 grams of crack cocaine, thus
setting his base offense level at thirty-six under U.S.S.G.
§ 2D1.1(c)(2). After a three-level reduction for acceptance
of responsibility, this yielded a total offense level of thirty-
three. Garrett received four criminal history points, which
included one point for a 2003 conviction in Wisconsin
for operating a vehicle without carrying a license and
bail jumping (for which he received a fine) pursuant to
U.S.S.G. § 4A1.1(c). This conviction raised Garrett’s crimi-
nal history from Category II (151 to 188 months) to Cate-
gory III (168 to 210 months).
  On October 25, 2006, at the sentencing hearing, the
district court was presented with the PSR’s findings. After
Garrett stated that he had no objections, the court accepted
the plea agreement. After considering the extent and
gravity of Garrett’s criminal record and the factors set
forth in 18 U.S.C. § 3553(a) (but without any discussion of
the calculation of Garrett’s criminal history points), the
court adopted the PSR’s Guidelines calculation and
concluded that a sentence in the middle of the Guide-
No. 06-3982                                                 3

lines range would provide both deterrence and punish-
ment, stating that:
    Common sense suggests to this Court that you should
    be sentenced at the top of the guideline range, but out
    of deference to your family and friends the Court has
    balanced what you could have been instead of what
    you turned out to be and has given you a sentence
    at the middle of the guideline range, and I do so
    reluctantly because you’re the type of people that has
    to be kept off the streets.
The court then sentenced Garrett to 189 months in prison.
Garrett timely appealed. On May 11, 2007, Garrett’s
counsel moved to withdraw under Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), identify-
ing one potential non-frivolous argument—whether the
district court erred by including the bail jumping con-
viction in Garrett’s criminal history score. We denied the
motion, see United States v. Garrett, No. 06-3982 (7th Cir.
October 31, 2007) (unpublished order), concluding that
it would not be frivolous for counsel to address whether
the district court overstated Garrett’s criminal history
score by assessing one point for the bail jumping con-
viction.


                        II. Analysis
  Garrett asserts that the district court plainly erred in its
assessment of his criminal history points, because the
offense of bail jumping under state law is “similar to”
contempt of court under U.S.S.G. § 4A1.2(c)(1)(B) and thus
warrants exclusion from his criminal history score. Garrett
argues that his substantial rights were affected because
without the inclusion of this conviction, his Guideline
4                                                No. 06-3982

range would have been 151 to 188 months. The govern-
ment concedes the district court plainly erred in in-
cluding the bail jumping conviction, but argues that Garrett
cannot show that the error impacted the fairness, integrity
or public reputation of the judicial proceedings.
   Normally we review a district court’s application of the
Sentencing Guidelines de novo. United States v. Samuels, 521
F.3d 804, 815 (7th Cir. 2008). However both parties agree
that our review is for plain error because Garrett forfeited
his argument when he failed to raise it before the district
court. Forfeiture occurs because of neglect, while waiver
happens intentionally. United States v. Charles, 476 F.3d
492, 495 (7th Cir. 2007). Waiver precludes review, while
forfeiture permits plain error review. Id. While Garrett
failed to timely assert his challenge to the assessment of
a criminal history point for his bail jumping conviction,
there is no indication on the record that Garrett knew
that his criminal history score might be erroneous, nor
would he choose to be sentenced under a higher crim-
inal history score and thus a higher Guidelines range. A
logical explanation is that neither Garrett nor his counsel
realized that including the bail jumping conviction was
incorrect, therefore we review for plain error. See United
States v. Jaimes-Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005)
(holding that a defendant’s confirmation of a PSR’s find-
ings does not waive a challenge on appeal where there
is no conceivable strategic reason for not objecting to a
sentence at a higher offense level). Under the plain error
test, we must decide whether there was an error, whether
it was plain, and whether it affected substantial rights.
United States v. Sawyer, 521 F.3d 792, 796 (7th Cir. 2008). If
all three conditions are met, we may exercise our dis-
cretion only if the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
No. 06-3982                                                  5

  When sentencing a defendant, the first step is to calculate
the Guidelines range correctly, and a mistake in that
calculation warrants resentencing. United States v. Hawk,
434 F.3d 959, 963 (7th Cir. 2006); See United State v. Thomas,
No. 05-4222, ___ F.3d ___, 2008 WL 755297, at *5 (7th Cir.
Mar. 24, 2008) (holding that even though the Guidelines are
advisory, a district court must accurately calculate and
consult the defendant’s Guidelines range). A sentence
based on an incorrect Guideline range constitutes an
error affecting substantial rights and can thus constitute
plain error, which requires us to remand unless we
have reason to believe that the error did not affect the
district court’s selection of a particular sentence. United
States v. Wallace, 32 F.3d 1171, 1174 (7th Cir. 1994).
   The Sentencing Guidelines factor a defendant’s prior
criminal history into his sentence in an effort to penalize
recidivist behavior, protect the public, and deter individu-
als from criminal behavior. 18 U.S.C. § 3553(a); United
States v. Lock, 466 F.3d 594, 599 (7th Cir. 2006). Section
4A1.1 of the Guidelines sets forth point totals for a de-
fendant’s prior sentences, and the sum of those points
determines a defendant’s criminal history category. A
district court counts all felonies as prior sentences, U.S.S.G.
§ 4A1.2(c), and misdemeanor and petty offenses are
generally counted, except as provided in §§ 4A1.2(c)(1) and
4A1.2(c)(2). As relevant here, § 4A1.2(c)(1) provides that
fifteen listed offenses, including contempt of court, 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 imprison-
ment of at least thirty days, or (B) the prior offense was
similar to an instant offense.” U.S.S.G. § 4A1.2(c)(1).
  Wisconsin defines “bail jumping” according to the
offense for which bail was granted: if the underlying
6                                                 No. 06-3982

offense was a misdemeanor, bail jumping is a misde-
meanor; if the underlying offense is a felony, bail
jumping is a felony. Wis. Stat. Ann. § 946.49(1). Garrett’s
underlying conviction was intentionally pointing a fire-
arm at another, which is a misdemeanor under Wis. Stat.
Ann. § 941.20(1)(c); accordingly Garrett’s conviction for
bail jumping is a misdemeanor. This misdemeanor con-
viction resulted in a fine and is not similar to the instant
offense of distributing crack under §§ 4A1.2(c)(1)(A) and
(B), thus leaving our inquiry to be whether bail jumping
is “similar to” one of the enumerated offenses under
§ 4A1.2(c)), particularly contempt of court, in order to
exclude the conviction from Garrett’s criminal history
score. Whether a state offense is similar to an offense
listed in § 4A1.2(c)) is a matter of federal law. United States
v. Staples, 202 F.3d 992, 996 (7th Cir. 2000).
   As the government points out, the treatment of the
crime of bail jumping as a form of contempt appears to
have historical roots in English common law. See Green v.
United States, 356 U.S. 165, 169, 78 S.Ct. 632, 2 L.Ed. 2d 672
(1958) (explaining that at English common law, disobedi-
ence of a writ under the King’s seal was treated as a
contempt), overruled in part on other grounds by Bloom v.
Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).
While this Circuit has yet to address this issue, we have
cited with approval the Sixth Circuit’s decision that “[t]he
crime of bail jumping diminishes the power of a court to
control those properly within its jurisdiction and afflicts
that court with its detrimental effects.” United States v.
Chappell, 854 F.2d 190, 192 (7th Cir. 1988) (quoting United
States v. Roche, 611 F.2d 1180, 1183 (6th Cir. 1980)); see
also United States v. Williams, 788 F.2d 1213, 1216 (6th Cir.
1986) (holding that the “primary effect [of bail jumping] is
No. 06-3982                                                     7

upon the proper administration of justice in the court
which admits one to bail and is akin to a ‘constructive
contempt of court.’ ” (quoting Roche, 611 F.2d at 1183)).
Garrett directs our attention to decisions in other cir-
cuits that have noted the similarities between bail
jumping and contempt. See United States v. Tigney, 367 F.3d
200, 204 (4th Cir. 2004) (a “failure to appear” offense is
“similar to” contempt of court because both require proof
of disobedience to a lawful court order); United States v.
Robinson, 158 F.3d 1291, 1292 (D.C. Cir. 1998) (a prior
conviction of contempt of court for violating a condition
of pretrial release does not count under § 4A1.2(c)(1));
United States v. Martin, 704 F.2d 515, 517 (11th Cir. 1983)
(a federal bail jumping conviction for failure to appear is
a “specific and egregious form of contempt of court.”);
United States v. Williams, 622 F.2d 830, 836 (5th Cir. 1980) (a
willful breach of a court order imposing a condition of
release pending appeal constitutes a contempt of court).
  In this Circuit, we use a “common sense” approach to
determine the similarity of offenses. Lock, 466 F.3d at 598.1
We look to the actual offense conduct and the sentence


1
  At the time of Garrett’s sentencing in October of 2006, the 2005
version of the U.S. Sentencing Guidelines, incorporating the
March 27, 2006 supplement, was in effect. These Guidelines did
not explain how to determine whether an offense is “similar to”
an enumerated offense in § 4A1.2(c)(1). The current version of
the Guidelines now provides criteria for a court’s “common
sense” approach to similarity under this section, considering
relevant factors such as punishments imposed, perceived
seriousness of the offense, elements of the offense, level of
culpability, and indication of a likelihood of recurring criminal
conduct. See November 1, 2007 Guidelines Manual, Commen-
tary to § 4A1.2, App. Note 12(A); United States v. Harris, 325
F.3d 865, 872 (7th Cir. 2003).
8                                                 No. 06-3982

deemed appropriate by the sentencing judge to deter-
mine if the acts are similar. Staples, 202 F.3d at 996. Our
goal is to determine whether the prior conviction is
“categorically more serious” than the listed offenses. United
States v. Hagenow, 423 F.3d 638, 645 (7th Cir. 2005). We
find that bail jumping is similar to contempt of court
under the federal Sentencing Guidelines. Bail jumping is
defined in Wisconsin as intentionally disregarding the
terms of a bond. Wis. Stat. Ann. § 946.49. Bail jumping laws
are intended to deter those who have been released
pending disposition of criminal charges from violating
bond conditions, and to enhance the effective administra-
tion of justice in the courts. State v. Taylor, 226 Wis.2d 490,
500 (Wis.App.Ct. 1999). Although a state legislature’s
classification of crimes is not dispositive when applying
the Guidelines, see Staples, 202 F.3d at 996, contempt carries
a longer maximum penalty in prison than bail jumping,
suggesting bail jumping is less serious. Compare Wis. Stat.
Ann. § 939.51(3)(a) (stating that the maximum penalty
for a Class A misdemeanor of bail jumping is a fine not
to exceed $10,000 or imprisonment not to exceed nine
months, or both) with Wis. Stat. Ann. § 785.04(2)(a) (stating
that the maximum punishment for contempt is a fine of
not more than $5,000 or imprisonment for not more than
one year, or both). Further, the sentencing court imposed
a fine, and not jail time, as punishment for jumping
bail, lending more support for treating the offense as
similar to one listed in § 4A1.2(c)(1). See United States v.
Booker, 71 F.3d 685, 690 n.7 (7th Cir. 1995) (“We note that
the sentence of one month’s court supervision is a con-
siderably lesser penalty than § 4A1.2(c)’s ‘triggering
period’ of at least one year of probation or thirty days
of imprisonment.”).
No. 06-3982                                                 9

   The underlying conduct for which Garrett was sen-
tenced was no more serious than a contempt charge. When
Garrett was arrested in 2003 for driving without a
license, he was on bond from a prior arrest, therefore
violating a bond condition which resulted in the bail
jumping conviction. The contempt statute is aimed at any
person who willfully disobeys a court order. 18 U.S.C.
§ 402; United States v. Giannattasio, 979 F.2d 98, 100-01 (7th
Cir. 1992) (holding that the contempt power is a “tradi-
tional inherent power[ ] of the judiciary . . . rooted in
considerations of institutional self-defense.”). Both of-
fenses constitute a disobedience of a court order and
were fashioned in order to ensure the authority of the
court and encourage obedience to its orders. Accordingly,
the district court committed plain error when it counted
one point for Garrett’s bail jumping conviction.
  We may exercise discretion in Garrett’s favor if the
plain error “seriously affected the fairness, integrity or
public reputation of judicial proceedings.” Sawyer, 521 F.3d
at 796. The district court, as well as the probation officer,
the government, and Garrett’s counsel, failed to realize
the error in allocating one point for the bail jumping
conviction. This error seriously affected the integrity of the
proceedings, for the miscalculation in this case led to a
higher Guideline range. See Jaimes-Jaimes, 406 F.3d at 851
(“[I]t would be unjust to place the entire burden for
these oversights on [a defendant] by permitting him to
serve an excessive prison sentence.”). Although the dis-
trict court alluded to the fact that it wanted to sentence
Garrett at the top of the Guideline range, it ultimately
chose a sentence in the middle of the range, and we
have no reason to believe its error in the application of
the Guideline range did not affect its selection of the
particular sentence. The government argues that the
10                                             No. 06-3982

sentence of 189 months is only one month above the
correctly-calculated Guidelines of 151 to 188 months,
however even if a sentence imposed is within the correct
as well as the incorrect Guideline range, the case must
still be remanded for resentencing. See Wallace, 32 F.3d at
1174. We therefore conclude that the district court
plainly erred in its assessment of the Sentencing Guide-
lines, and the resulting prejudice to Garrett justifies
remand for resentencing.


                     III. Conclusion
  For the reasons stated herein, we V ACATE Garrett’s
sentence and R EMAND for resentencing consistent with
this opinion. Because Judge Shabaz is unavailable, we
remand the case to a different judge pursuant to Circuit
Rule 36.




                   USCA-02-C-0072—6-10-08
