Frivolous Appeal – Pleas & Sentencing – Sentencing Error

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Criminal

7th Circuit Court of Appeals

Officials: POSNER, EASTERBROOK, and SYKES, Circuit Judges

Frivolous Appeal – Pleas & Sentencing – Sentencing Error

No.14-2154; 13-3711 United States of America v. Robert Maday

Appeal of sentence given by two separate judges for crimes that were interrelated both in time and fact not held as frivolous.

“Judge Castillo committed two sentencing errors. One was making Maday’s sentence run concurrently with his state sentence. In doing so the judge overlooked 18 U.S.C. § 924(c), which “forbids a federal district court to direct that a term of imprisonment under that statute run concurrently with any other term of imprisonment, whether state or federal.” United States v. Gonzales, 520 U.S. 1, 11 (1997). The second mistake was to make the federal sentence that he was imposing run concurrently with the 15-year minimum sentence for being an armed career criminal. 18 U.S.C. § 924(c)(1)(D) provides that sentences for weapon brandishing, imposed under section 924(c), shall not run concurrently “with any other term of imprisonment imposed on the person” (emphasis added), which includes Maday’s 15-year sentence for being an armed career criminal. E.g., Abbott v. United States, 562 U.S. 8, 13–15, 21–22 (2010); United States v. Taylor, 581 Fed. App’x 559, 560–61 (7th Cir. 2014). “

“The remaining issue involves Judge Gettleman’s sentencing; we’ve concluded that the judge did not adequately justify his decision to sentence Maday to 30 years and make that very long sentence consecutive to an equally long state sentence (though a sentence that might be shortened considerably as a result of Illinois’s generous day-for-day credit system). Maday was, it is true, a career criminal, but one who specialized in smallish bank robberies; he doesn’t appear to have injured anyone in his crime sprees; and at age 43, when sentenced by Judge Gettleman, he was rapidly approaching the age at which most bank robbers are retired—it appears that only about 11 percent of bank robbers are 40 or older. FBI, U.S. Dep’t of Justice, Crime in the United States 310 (2002). (This figure is from the late 1990s, but we have found no data suggesting that it has risen since.) The judge said he was imposing the long sentence as a general deterrent (pour encourager les autres, as the French put it). But he discussed in detail only one of the other sentencing factors that federal judges are required by 18 U.S.C. § 3553(a) to consider in deciding on the length of a sentence—namely specific deterrence (deterring the defendant from committing further crimes upon release). See 18 U.S.C. § 3553(a)(2)(C). But what he said about it suggests that he didn’t think it would provide any justification for the sentence he was imposing. He ruminated: “Will you pose [a danger to the community] all of your life until you’re a very old man? Probably not.” Yet he sentenced Maday to a prison term that will keep him incarcerated long past the time when he is likely to be a danger to the community.”

Reversed and Remanded.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.