United States of America v. Ralph Thompson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1390
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R ALPH THOMPSON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 22-cr-30073 — Colleen R. Lawless, Judge.
____________________
A RGUED F EBRUARY 4, 2025 — DECIDED M ARCH 3, 2025
____________________
Before S YKES , Chief Judge, and E ASTERBROOK and PRYOR ,
Circuit Judges.
EASTERBROOK, Circuit Judge. When sentencing Ralph
Thompson to 150 months’ imprisonment for distributing her-
oin, fentanyl, and an analogue of fentanyl, the district judge
observed that Thompson had nine other felony convictions
and had not shown any sign of reform. That justified a long
sentence to promote both deterrence and incapacitation.

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2 No. 24-1390
The presentence report listed Thompson’s convictions. He
and his lawyer did not contend that this list contained an er-
ror. Nonetheless, on appeal Thompson maintains that one of
the nine is invalid. It was plain error, Thompson insists, for
the district judge to state that he has nine rather than eight
prior convictions.
To establish plain error a litigant must show not only a
mistake that is plain (at least in retrospect) but also prejudice
and a miscarriage of justice if the error is allowed to stand un-
corrected. See, e.g., United States v. Olano, 507 U.S. 725 (1993);
United States v. Page, 123 F.4th 851 (7th Cir. 2024) (en banc).
(Our summary is much shorter than the controlling passages
of Olano and Page; we do not intend to change the standard
but only to identify its elements.)
Thompson fails at the prejudice step. The district court
treated him as a career offender under the Sentencing Guide-
lines, U.S.S.G. §4B1.1, and it takes only two prior felony con-
victions for drug offenses or crimes of violence to fall into that
category. He does not deny that he has enough qualifying
convictions without resort to the one he now contests. Nor did
the district judge say anything suggesting that the difference
between eight and nine prior convictions mattered to the ex-
ercise of discretion. It was Thompson’s record as a whole, not
any one conviction, that impressed the district judge with his
incorrigibility. Even so, the 150-month sentence is below the
lowest point in the range of 188 to 235 months that the Guide-
lines prescribe for a career offender with an offense level of
31. It is impossible to see how the contested ninth conviction
could have affected his sentence.
This makes it unnecessary to decide whether considering
that conviction—for aggravated unlawful use of a weapon, in

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No. 24-1390 3
violation of 720 ILCS 5/24-1.6(a)(1)—was error in the first
place. Thompson does not deny that he was indeed convicted
of violating that statute. Nor does he deny that he committed
the acts with which he was charged. Instead he observes that
People v. Aguilar, 2013 IL 112116, issued six years after his con-
viction, deemed §5/24-1.6(a)(1) invalid under the Constitu-
tion’s Second Amendment (applied to the states by the Four-
teenth) because until July 2013 Illinois did not issue licenses
allowing most people to carry guns in public. See also New
York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).
Thompson maintains that a federal district court must
treat the conviction as void, even though it has never been
subject to a pardon, collateral relief, or any other formal de-
termination of invalidity. United States v. Jenkins, 772 F.3d 1092
(7th Cir. 2014), provides some support for the proposition that
federal courts must disregard convictions under the version
of §5/24-1.6(a)(1) that predated the 2013 amendments. But Jen-
kins did not try to explain how that approach could be recon-
ciled with Custis v. United States, 511 U.S. 485 (1994).
Custis considered the extent to which a defendant in a fed-
eral prosecution could contest the validity of a conviction
used to enhance a sentence under 18 U.S.C. §924(e) (the
Armed Career Criminal Act). It held that federal law does not
permit a defendant to ask a federal sentencing judge to rule
on the validity of a prior conviction. Instead, the Court held,
the defendant must seek relief in a separate proceeding and
return to the sentencing court only if successful in having the
conviction set aside. See also Johnson v. United States, 544 U.S.
295 (2005); Daniels v. United States, 532 U.S. 374 (2001). Custis
recognized a single exception: a conviction obtained in

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4 No. 24-1390
violation of the right to counsel under the Sixth Amendment
must not be used when imposing sentence.
Thompson was not sentenced under §924(e), but it is hard
to see why enhancements under the Sentencing Guidelines
should be treated differently. See U.S.S.G. §4A1.2 Application
Note 6: “Sentences resulting from convictions that (A) have
been reversed or vacated because of errors of law or because
of subsequently discovered evidence exonerating the defend-
ant, or (B) have been ruled constitutionally invalid in a prior
case are not to be counted. With respect to the current sen-
tencing proceeding, this guideline and commentary do not
confer upon the defendant any right to attack collaterally a
prior conviction or sentence beyond any such rights other-
wise recognized in law”. Custis did not articulate an exception
for convictions said to be invalid under a recent precedent; its
exception is limited to convictions obtained without an offer
of counsel.
Jenkins observed that a state court had vacated Jenkins’s
conviction under §5/24-1.6(a)(1). 772 F.3d at 1095. The parties
apparently did not discuss the significance of the fact that this
vacatur post-dated the federal sentencing, and our opinion
did not make anything of the timing. Under Johnson the vaca-
tur would have opened a new window for collateral review
under 28 U.S.C. §2255(f)(4); perhaps everyone assumed that
the pending direct appeal was an appropriate shortcut.
Because Thompson did not suffer prejudice from the con-
sideration of his ninth felony conviction, we need not decide
whether Jenkins should be extended to a situation, such as
ours, in which the defendant has yet to obtain relief from his
state conviction. But we trust that, if this subject arises again,
the litigants will address the bearing of Custis and not assume

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No. 24-1390 5
(as both sides in this appeal did) that district judges must dis-
regard state convictions that have not been reversed or set
aside in any other way.
A FFIRMED

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