10-1374 U.S. v. Hernandez Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Wood, J.

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Sentencing
Concurrent sentences

Where the district court erroneously believed it lacked authority to impose a sentence concurrent to a state court sentence, the sentence must be vacated.

“The only difference between Campbell’s case and Hernandez’s case is the offense of conviction. Hernandez faces a mandatory minimum of 10 years for his drug conviction, while Campbell faced a mandatory minimum of 15 years because of his armed career criminal status. That detail has no bearing on the rationale of our decision in Campbell. Although we speculated in our recent decision in United States v. Cruz, 595 F.3d 744, 746 (7th Cir. 2010), that the operative mandatory sentencing language in the statute at issue in this case might be less flexible than the statute at issue in Campbell and Ross, now that the question is squarely before us we find the linguistic difference irrelevant. The statute under which Hernandez was sentenced, 21 U.S.C. § 841(b)(1)(A), provides the offender ‘shall be sentenced,’ while the sentencing statute in Campbell, 18 U.S.C. § 924(e), provides violators ‘shall be . . . imprisoned.’ To permit this slight difference in wording to alter the outcome in this case would ‘exalt form over substance,’ subverting the spirit of Ross. See Ross, 219 F.3d at 594. We conclude, therefore, that Hernandez’s sentence must be vacated and his case returned to the district court for resentencing. We note in this connection that the original district court judge has now retired from his post, and thus the case will be assigned to a different judge. The new judge, however, should take note of the original judge’s clear signal that he would have been open to fully or partially concurrent sentences if he had the necessary authority. As we noted earlier, at the time of the original hearing, Hernandez had served 18 months on his state sentence, and so he was seeking a federal sentence of 102 months. The parties will be free to argue on remand what additional adjustments, if any, they believe are appropriate as a result of the passage of time and any credit Hernandez has already received on his federal sentence.”

Vacated and Remanded.

10-1374 U.S. v. Hernandez  Appeal from the United States District Court for the Northern District of Illinois, Andersen, J., Wood, J.

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