Court of Appeals Vacates Sentence Based on Belief that Guidelines Require Consecutive Sentence: Lanier
Lanier was initially convicted of three counts of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. 1951(a), and three counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c). He was sentenced to 946 months imprisonment by the district court. However, following the Supreme Court’s decisions in Johnson and Davis, Lanier was successful in vacating his three 924(c) convictions and the district court ordered he be resentenced.
Prior to resentencing, Probation prepared a new PSR which calculated a total offense level of 38, Criminal History Category VI, and Guidelines range of 360 months to life imprisonment. Over Lanier’s objections, the district court adopted the PSR’s Guidelines calculations.
The court resentenced Lanier to 360 months imprisonment. The sentence was composed of a term of 98 months for Count One, 240 months for Count Three, and 22 months for Count Five, which the court announced would “run consecutively as required by Section 5G1.2(d) of the guidelines.” Lanier objected to the sentences running consecutively, but was overruled. He appealed to the Sixth Circuit.
On appeal, Lanier raised several claims arguing the sentence was both procedurally and substantively unreasonable. His first argument challenged the district court’s decision to run the sentences consecutively because the court mistakenly believed the Guidelines required mandatory consecutive sentences and the court failed to adequately explain its decision to impose consecutive sentences.
Although the parties disputed the applicable standard of review, the Sixth Circuit determined it need not decide whether abuse of discretion or plain error review applied because a court’s misstatement of the law is reversible error even under the plain error review standard.
In determining whether a sentence should be ordered concurrent or consecutive, 18 U.S.C. 3584(a) states that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or statute mandates that the terms are to run consecutively.” However, under U.S.S.G. 5G1.2(d), the Guidelines instruct “[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment.”
Although the Guidelines provide this directive, the courts have recognized that U.S.S.G. 5G1.2(d) is not mandatory and district courts retain discretion to determine whether to impose a consecutive or concurrent term of imprisonment.
At Lanier’s resentencing, the district court went through the factors enumerated under 18 U.S.C. 3553(a) before announcing he would be sentenced to “a total term of 360 months.” The court then explained that the sentences for each count would be served consecutively “as required under Section 5G1.2(d)[.]” The district court offered no other explanation for running the sentences consecutively.
The Sixth Circuit held that the district court’s statement that the sentences were required to be consecutive, with no other explanation, indicated that the court mistakenly believed it must impose consecutive terms-even though the court had the discretion to impose concurrent sentences. This was reversible error.
In response, the government argued that the court understood its discretion because the court had indicated that it could vary below the advisory Guidelines. However, the district court’s explicit statement that Section 5G1.2(d) mandated consecutive sentences combined with no other explanation for consecutive terms constituted a misstatement of the law.
The Sixth Circuit vacated Lanier’s sentence and remanded to the district court for resentencing.