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USSG 5G1.3. District Court Has Discretion to Concurrently Run State and Federal Sentences.

USA v. Lervon L. Campbell.  NO.  09-3527.

On December 29, 2008, Milwaukee police officers executing a search warrant at Campbell's home discovered powder cocaine, crack cocaine, and marijuana, and saw Campbell attempt to throw a gun out of his bedroom window. At the time, Campbell was on supervised release for prior unrelated Wisconsin state convictions.

As a result of the new arrest, the state of Wisconsin revoked his supervised release and ordered Campbell to serve three years in prison on the state offenses

Lervon Campbell pled guilty to being a felon in possession of a firearm and received a fifteen-year mandatory minimum sentence. At the time he was sentenced, Campbell had served approximately nine months of an unrelated state sentence after his supervised release had been revoked due to his arrest on the federal charges.

The district court imposed Campbell's federal sentence to run concurrently with the remainder of that state sentence, but did not credit the nine months he had already served, believing that U.S.S.G. § 5G1.3(c) did not give it the authority to do so.

The district court was correct in noting that subpart (b) of § 5G1.3 expressly authorizes a downward adjustment of a sentence to take into account a period already served on an undischarged term of imprisonment, while subpart (c) does not.

But the district court erred in concluding that this distinction in the guideline limits its exercise of discretion. Although § 5G1.3 expresses the Sentencing Commission's views about how a court's § 3584 sentencing discretion should be exercised, it does not restrict that discretion after United States v. Booker, 543 U.S. 220 (2005).

Section 5G1.3 is an informative, but not binding, articulation of a court's power to impose a sentence concurrently or consecutively under § 3584.

Nor does the § 924(e)(1) mandatory minimum to which Campbell is subject preclude the sentence adjustment he seeks. Section 924(e)(1) says that a defendant must "be imprisoned . . . not less than fifteen years," 18 U.S.C. § 924(e)(1) (emphasis added).

We have on two occasions held that this requirement is satisfied so long as a defendant's total period of incarceration, state and federal combined, equals or exceeds the statutory minimum.  See United States v. Ross, 219 F.3d 592, 594-95 (7th Cir. 2000), United States v. Cruz, 595 F.3d 744, 746 (7th Cir. 2010).

Campbell's sentence is VACATED and the case is REMANDED for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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1 comment
    November 28, 2012 at 01:20

    After our second remand, the district court held an evidentiary hearing and issued a lengthy decision again crediting the prosecutor’s explanation for the strike, which had expanded to include multiple new nonracial justifications.

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