08-1772 U.S. v. McNeil

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Sentencing
Concurrent sentences

Where it is unclear whether a state sentence had been discharged when the federal sentence was imposed, the case must be remanded for resentencing.

“[T]he PSR makes it impossible to tell for sure whether McNeil was serving the 2004 sentence at the time of his federal sentencing, and therefore it was unreasonable for the district court not to supplement the record. Moreover, as noted in the PSR, McNeil’s plea agreement includes a joint recommendation that the federal sentence be ‘concurrent to any sentence imposed by the State of Wisconsin resulting from defendant’s possession of the firearm charged in this case.’ This provision of the plea agreement is binding on the sentencing court under Federal Rule of Criminal Procedure 11, and therefore the court was required to order the federal sentence concurrent with all undischarged state sentences once it accepted the plea agreement. Fed. R. Crim. P. 11(c)(1)(C) (‘[T]he plea agreement may specify that an attorney for the government will . . . agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).’); see also United States v. Cole, No. 06-2547, slip op. at 7 (7th Cir. June 30, 2009) (discussing cases). It almost goes without saying that, to fulfill this requirement, the sentencing court was bound to determine the nature and number of all of McNeil’s undischarged state sentences related to his gun possession.”

Reversed and Remanded.

08-1772 U.S. v. McNeil

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Cudahy, J.

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