United States of America v. Markell Jay Hamilton, also known as Poo

St. Louis, MO - Criminal defense lawyer represented defendant charged with drug possession.

Markell Hamilton directly appeals after the he pled guilty to a drug charge, and

the district court sentenced him to an above-Guidelines-range prison term. His

counsel has moved for leave to withdraw, and has filed a brief under Anders v.

California, 386 U.S. 738 (1967). Hamilton has filed a pro se brief, arguing, as

relevant, that the district court plainly erred in calculating his criminal history score

by including his Illinois conviction for aggravated unlawful use of a weapon, because

a portion of the relevant statute had been ruled unconstitutional by the Illinois

Supreme Court and the Seventh Circuit.

After careful review of the record and the parties’ arguments on appeal, we

vacate Hamilton’s sentence and remand for resentencing for the district court to

consider Hamilton’s criminal-history argument in the first instance. We express no

opinion as to the merits of this argument, and we note that it is unclear from the

record whether Hamilton was convicted under a portion of the statute that has been

ruled unconstitutional. Counsel’s motion to withdraw is denied.