Reversal of Consecutive Federal Sentence

In U.S. v. Bowman, a published opinion available here, the Sixth Circuit reversed a federal sentence imposed consecutively to an undischarged state sentence. The defendant pled guilty in federal court to two counts of possession and distribution of ecstasy and BZP, and pled guilty in state court to violating probation for the same two offenses. He was sentenced to 120 months imprisonment for the federal charges (based on an 120-150 month range) imposed consecutively to the state sentences.

The district court plainly erred by assuming the application of U.S.S.G. § 5G1.3(c) to be mandatory, stating "I've got to sentence you consecutively" (the Sixth Circuit declined to decide the applicable standard of review).

This court in [United States v.Gibbs, 506 F.3d 479, 488 (6th Cir. 2007)] held that the district court’s ruling constituted plain error because the explicit language of U.S.S.G. § 5G1.3(c) grants the court discretion to impose either a concurrent or a consecutive sentence. Id. at 487–88. In addition, this court stated that “where the district court believes that an aspect of the Guidelines is mandatory, there is a presumption of prejudice to the substantial rights of the defendant, and a remand for resentencing is required.” Id at 488. The Gibbs court explained “that prejudice is presumed because the district court’s failure to recognize its discretion in sentencing renders it impossible for the defendant ‘to show that the subjective decision of the court would have been different if the error had not occurred.’” Id.

The sentencing transcript did not provide "clear and specific evidence" the district would have imposed a consecutive sentence even if it knew it had the discretion to do so. In addition, the fact Bowman was sentenced at the low end of the advisory guideline range "suggests that there is an even greater chance that the district court would have sentenced him to a lower sentence if it had recognized that consecutive sentences are not mandatory under U.S.S.G. § 5G1.3(c)."

The Sixth Circuit also found the appellate waiver in the plea agreement did not bar the claim because the government failed to include a specific reference to § 5G1.3(c).