Concurrent Verses Consecutive: 18 USC 3584 VS 5G1.5

The 6th Circuit attempted to address concurrent sentences verses consecutive sentences in its recent opinion United States v Harris, 11a0709n.06, filed October 12, 2011.

Defendant Harris was convicted in State court of possession of a firearm during the commission of a felony, and as a habitual offender.  He was there after sentenced to 17 to 27 years.  Fifteen years later Defendant Harris pled guilty to “Corruptly endeavoring to obstruct or impede the due administration of internal revenue laws.  In plain English, Defendant Harris claimed on his tax return a false “bribery” expense to the prosecutor in his state case.

 

At sentencing in the Federal Court, Defendant Harris was sentenced to 21 months,(within guidelines), to run consecutive to his state sentence.  Defendant Harris appealed claiming procedural error regarding the consecutive nature of his sentence.

18 USC 3584 addresses the issue of multiple sentences, concurrent or consecutive.   The statute states in part that:

a.   multiple sentences imposed at the same time or a sentence imposed on a defendant currently under sentence may run either concurrently or consecutively; however, multiple sentences imposed at the same time run concurrent unless the court orders otherwise or the statute says otherwise.  A sentence imposed while defendant is on currently serving an undischarged sentence runs consecutive unless the court orders otherwise.

 

b.   in determining whether  the sentences are to run concurrently or consecutively the court shall consider the factors of 18 USC 3553(a), as to each sentence.

 

What does this mean in plain English?  The Court can sentence you whichever way it wants as long as the statute doesn’t say differently – but it must state specifically what it is doing and why by addressing those sentencing factors of 3553(a) once again.  It also means that when you are sentenced on more than one count at the same time, there is a preference for concurrent.  And when you are sentenced to a new count while you are currently serving a sentence for anything else, there is a preference of consecutive.

 

So when is there a sure chance you could be getting consecutive sentences?  Well really there are three:

 

1.    a conviction for 924(c) and another offense;

 

2.    a conviction for 929(a) and another offense; or

 

3.   when your sentencing guideline range exceeds the statutory maximum of the charge you pled to – so you are stacked and packed – 5G1.2(d)!

 

Yep, you can feel like an airplane waiting to land at the Dallas Airport on a Super Bowel Sunday.  So, your guidelines are 360 to life and you pled to two twenty year felony offenses.  You could then be sentenced to 240 months on count 1 and 240 months on count 2, for a total of 480 months.

 

In the end, your attorney should evaluate your case for all the above factors in advising you if your sentence(s) will be consecutive:

 

a.    other sentences your currently serving;

 

b.    felony statutes that require consecutive;

 

c.    guidelines that will allow for consecutive; and

 

d.    and 3553(a) factors that will enhance your chances.

For Defendant Harris, the 6th Circuit United States Court of Appeals held that both the consideration by the sentencing court of the 3553(a) factors and his guideline range supported consecutive sentences.

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