Sentencing Guidelines

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7^th Circuit Court of Appeals

Case Name: United States of America v. Joshua T. Herman

Case No.: 18-3057

Officials: WOOD, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.

Focus: Sentencing Guidelines

This is the second time we have been asked to review the sentence that Joshua Herman received after pleading guilty to violating 18 U.S.C. § 922(g), which prohibits felons from possessing a firearm. Herman raised two issues on his first appeal: one concerned the district court’s failure to recognize that it had the discretion to require Herman’s federal sentence to run concurrently with an unrelated state sentence that had yet to be imposed; and the other related to the proper interpretation of U.S.S.G. § 2B3.1(b)(4)(B), which dictates that a person’s offense level for robbery must be increased by two if he “physically restrained” the victim. United States v. Herman, 884 F.3d 705, 706 (7th Cir. 2018). (That guideline applied because Herman possessed the firearm in connection with a robbery. See U.S.S.G. § 2K2.1(c)(1)(A).) We found it necessary to reach only the first issue, which we resolved in Herman’s favor. We ended our opinion by noting that “on remand, the district court should consider Herman’s argument that the physical restraint enhancement does not apply to him … .” Herman, 884 F.3d at 708.

We VACATE Herman’s sentence and REMAND his case for resentencing consistent with this opinion.

Vacated and Remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.