This is the audio of the oral argument in the Sixth Circuit. Again, the Court then pronounced the sentence as follows: THE COURT: Okay. Consecutive versus concurrent sentencing in federal court--and a reversal by an appellate court where the distinction wasn't clear. Federal Jurisdiction Erin E. Goffette Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Erin E. Goffette, Sovereignty in Sentencing: Concurrent and Consecutive Sentencing of a Defendant Subject to Simultaneous State and Federal Jurisdiction, 37 Val. U. L. Rev. Here, as noted above, the district court’s entire analysis appeared to set up a variance up to 120 months (one year over the top end of the range of 108 months), not a variance to 216 months (9 years over the top end). If you or a loved one are facing Federal or State criminal charges and need to know how to avoid consecutive time, contact Larry Elmen, Esq. 2012) (quoting United States v. Johnson, 553 F.3d 990, 998 (6th Cir. See United States Sentencing Commission Analysis of Fraud Offenses from 1996 to 2011 at 10 (chart). At the time of sentencing, the judge must impose a sentence for every crime of conviction. (R. 157 at 43–44; PageID #859–60.) When new facts in a second lawsuit overcome the defense of res judicata (claim preclusion). Nikolovski’s case is essentially the opposite of Erpenbeck. In sum, the district court had corrected its initially mistaken consecutive sentences and it had adequately shown that the full length of that sentence was nonetheless intended and justified. ATTENTION: Wallin & Klarich Offices Will Remain Open to Help Out Clients and Potential New Clients During the COVID-19 Coronavirus Pandemic, in Accordance with Mandated Safety Guidelines. the more compelling the justification based on factors in section 3553(a) must be.” Id. The court must impose a concurrent sentence unless there is statutory authority for imposing a consecutive sentence. See, 18 United States Code sec. GCT criteria can … Judge #1 does not state whether the sentence of incarceration runs concurrent or consecutive because the sentence from criminal case #1 is the only sentence. Mr. Nikolovski, it’s the judgment of this Court that you are committed to the custody of the Bureau of Prisons for a term of 120 months on each of Counts 7 through 14, 16 through 20, and 96 months on each of Counts 21 through 25 to be served consecutively. The terms “consecutive time” and “concurrent time” have straightforward meanings: Consecutive Time means that periods of time or events happen one after the other. I filed this opening brief, the government filed this opposition, and I filed this reply. ; see, e.g., United States v. Alcorn, 27 F. App’x 317, 321 (6th Cir. . The district court first stated that it was imposing a sentence 5 months over the top end of the range for the bank fraud (for a total of 240 months) and that it was imposing an additional 60 months consecutively for the obstruction count (for a grand total of 300 months). What is "standing"? Any dispute or claim arising out of your use of this site shall be determined exclusively by the laws of the State of New York and venue shall be limited to Warren County, New York. If a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. . It is therefore substantively unreasonable and warrants remand on this basis as well. Moreover, while Raguz started the scheme and was responsible for $70 million in losses, Nikolovski became involved years later was responsible for 7% of that amount. It does this by referring to the sentencing guidelines that have been issued for each offence. You should not act or rely on any information appearing on this website without first seeking the advice of a licensed attorney. Yet the transcript shows that when the district court imposed a 120-month sentence for bank fraud, the court also stated that a sentence of 96 months for money laundering would run consecutively (not concurrently). Id. through this website or any link is done so on a non-confidential basis. This website provides links to other non-related websites for your convenience only and the Elmen Law Firm P.C. What follows are excerpts of my opening brief to the Sixth Circuit regarding principles of concurrent versus consecutive sentencing in federal court. Proposed Revisions to Sentencing Guideline Section 2.F. 2009)). Yet, later recognizing that such a consecutive sentence over the range would be improper, the district court stated that it still believed that a “sentence at the 300-month point is the appropriate one” and amended the sentence as follows: It imposed 300 months for the bank-fraud count (an upward variance of 65 months from the top of the range), with a concurrent sentence of 60 months on the obstruction count. Are former Cuyahoga County Commissioner Jimmy Dimora’s convictions and 28-year sentence legitimate? The sentencing court could recommend concurrent or consecutive service with a yet to be imposed state sentence. If Judge #2 imposes a consecutive sentence of incarceration, then the defendant gets no credit toward sentence #2 until the defendant serves the entire sentence imposed under sentence #1. through this website, or any link in this website, does not create an attorney client communication, privilege or relationship and no such relationship exists without an express agreement between Elmen Law Firm P.C. And what are “official acts” under McDonnell v. United States? Concurrent and Consecutive Sentencing (Multiple Case Sentencing) When a defendant has multiple cases or charges pending against him at the same time it becomes a question of whether, if convicted, the sentences have to run one after each other (Consecutively) or combined into one term (Concurrently). This Court should remand for a proper sentencing. Consecutive sentences result in a substantially longer period of incarceration. (R. 178 at 31; PageID #1049 (168-month sentence with top of range at 151 months).) Rule 4.425. Sentencing guidelines provide a system for handing down uniform or consistent sentences for similar crimes in various jurisdictions. Any information sent to Elmen Law Firm P.C. The default rule is concurrent sentences. On appeal, this Court affirmed the sentence as reasonable, emphasizing that the sentencing-hearing transcript showed that the district court “believed from the beginning that a 300-month sentence was appropriate,” repeatedly stated that it intended to impose 300 months, and adequately explained the upward variance (27%) over the top end of the range. Sentencing Guidelines (as currently written) Is there room for a district court to conclude in its discretion that Nikolovski’s negative factors nonetheless justify a variance above even the top end of the range (108 months) requested by the Government? What is "Article III Standing"? At sentencing, the district court varied upward, indicating that a 120-month sentence would be appropriate. There, the sentencing range was 188 to 235 months, based on multiple counts of bank fraud and obstruction of justice. There was no other mention of consecutive sentences, and there was no mention of the actual total punishment (216 months) that was ultimately imposed on Nikolovski. Here, the top of the Guideline range was 108 months (9 years), and it appeared that the district court intended to vary up an additional year to 120 months (for an 11% increase), resulting in a 10-year sentence. Consecutive Time & Concurrent Time. New America: The case for a different form of reparations. Aleo, 681 F.3d at 299 (emphasis added). See United States v. Erpenbeck, 532 F.3d 423, 437–38 (6th Cir. Perhaps a district court could conclude that such a sentence—though higher than the Government’s request and falling into the 3% of fraud cases in the country involving an upward variance—is “not greater than necessary” to comply with the purposes of sentencing. “The purpose of a consecutive sentencing statute is to deter persons convicted of one crime from committing other crimes by removing the security of concurrent sentencing.”. Federal criminal law presumes consecutive sentences for separate sentences of incarceration from separate criminal acts. Id. to schedule an initial consultation. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. Gall, 552 U.S. at 50. The concurrent-vs.-consecutive decision has been addressed by §212(a) of the Sentencing Reform Act of 1984, 18 U. S. C. §3584, reproduced in full as Appendix A, infra. I then filed this sentencing memorandum, and my client's sentence was then reduced from 18 years to 10 years. (Id. as concurrent or consecutive. When deciding on the sentence, the district court must impose “a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set forth in § 3553(a). We will work with you to ensure you understand the full impact of Federal and State criminal sentencing laws before it is too late. When a federal appeals court rules in your favor and remands for further proceedings, can the district court stop those proceedings while the other side seeks review in the U.S. Supreme Court? Multiple sentences of imprisonment. at 48; PageID #864.) For all of these reasons, the sentence is procedurally unreasonable and calls for a remand. at Elmen Law Firm P.C. at 44–49; PageID #860–65.) And, finally, even if the district court had made clear that it really intended such a long sentence (such as the 27% increase in Erpenbeck), there would have to be extensive explanation for such a massive 100% increase here, especially for a defendant who is a Category I offender with zero criminal-history points. Contacting or communicating with the Elmen Law Firm P.C. When the Supreme Court interprets a Congressional statute, that precedent has "special force" in light of later Congressional action in that field. 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