United States v. Robinson, No. 15-2091 (7th Cir. 2016)

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Defendant was convicted of possessing cocaine and cocaine base with intent to distribute, distributing cocaine base, and possessing cocaine base with intent to distribute, 21 U.S.C. 841(a)(1). In 1998 he was sentenced to consecutive prison sentences of 40 years on counts 1 and 3 and 20 years on count 2, totalling 100 years. In 2011 the Sentencing Commission promulgated Guidelines Amendment 782, retroactively reducing the base offense level and changing the recommended guidelines sentence from life to 30 years to life. The court reduced defendant’s sentence, imposing 30 years on counts 1 and 3 and 20 years on count 2, to run consecutively: a total sentence of 80 years. The judge believed that he had to make the sentences consecutive. The Seventh Circuit reversed. When defendant was first sentenced, the judge had to make the sentences on the individual counts consecutive to get as close to a life sentence as possible. Amendment 782 would not allow reconsideration of any feature of the original sentence other than its length, but allows sentences not exceeding 30 years on each count and making all the sentences run concurrently, as authorized by U.S.S.G. 5G1.2(c)—80 years is not the floor.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2091 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHARLES R. ROBINSON, IV, Defendant Appellant. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 97 CR 30025 — Richard Mills, Judge. ____________________ SUBMITTED JANUARY 19, 2016 — DECIDED FEBRUARY 22, 2016 ____________________ Before POSNER, EASTERBROOK, and SYKES, Circuit Judges. POSNER, Circuit Judge. In 1997 the defendant was indicted for possessing cocaine and cocaine base with the intent to distribute (count 1), distributing cocaine base (count 2), and possessing just cocaine base with intent to distribute (count 3), all in violation of 21 U.S.C. § 841(a)(1). A jury convicted the defendant on all three counts, and in 1998 the district court sentenced him to consecutive prison sentences of 40 2 No. 15 2091 years on counts 1 and 3 and 20 years on count 2, for a total of 100 years—effectively a life sentence, which we upheld in United States v. Robinson, 250 F.3d 527 (7th Cir. 2001), follow ing earlier decisions in the case, cited in id. at 528–29. Thirteen years later the Sentencing Commission prom ulgated Amendment 782 to the guidelines, which retroac tively reduced the base offense level for the defendant’s crimes from 43 to 42. The effect was to change the recom mended guidelines sentence from life to 30 years to life. The defendant accordingly moved the district court to reduce his sentence, and the judge did, imposing 30 years on counts 1 and 3 and 20 years on count 2, with all three sentences to run consecutively, making the total sentence 80 years. In reducing the sentence only from 100 to 80 years, the district judge was under the impression that he had to make the sentences on the three counts consecutive—that he could not make them concurrent. He was mistaken. When Robin son was first sentenced, his recommended guideline sen tence was longer (life, as we said) than the maximum per missible sentence on any one count. The judge thus had to make the sentences on the individual counts consecutive in order to get as close to a life sentence as he could. See U.S.S.G. § 5G1.2(d). As a result of Amendment 782, however, the low end of the defendant’s guidelines range—30 years— dropped below the statutory maximum for any single count (40 years), and if a judge wants to sentence a defendant at the bottom of the new guidelines range he can do so by im posing sentences not exceeding 30 years on each count and making all the sentences run concurrently, as authorized by U.S.S.G. § 5G1.2(c)—80 years is not the floor. Indeed the sen tencing guidelines, both when the defendant was first sen No. 15 2091 3 tenced and now, state that “if the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment [i.e., the overall length of imprisonment that the judge thinks just], then the sentences on all counts shall run concurrently, except to the extent oth erwise required by law.” U.S.S.G. § 5G1.2(c) (emphasis add ed). What Amendment 782 would not have allowed the judge to do would have been to reconsider any feature of the orig inal sentence that he had imposed other than its length, such as whether the defendant qualified as a career offender. United States v. Wren, 706 F.3d 861 (7th Cir. 2013). But the change in the applicable guideline provision empowered the judge to invoke U.S.S.G. § 5G1.2(c) and make the three sen tences concurrent rather than consecutive. Unfortunately, but not irrevocably, the defendant’s lawyer had misin formed the judge that the three sentences had to run consec utively. In fact they could be made concurrent; and if so, since the longest sentence was 30 years, that would be the defendant’s total sentence. The judgment must therefore be vacated and the case remanded to enable the judge to decide whether to alter the defendant’s sentence. The defendant, who has been pro se in this appeal, would undoubtedly benefit from assistance of counsel on remand. Although the Criminal Justice Act does not authorize the appointment and compensation of a law yer for the defendant in a proceeding based on a retroactive change in the applicable guidelines, United States v. Foster, 706 F.3d 887 (7th Cir. 2013), district judges can if they want try to recruit pro bono counsel, who donate their time rather than selling their services to the judiciary, to represent an 4 No. 15 2091 indigent defendant. We urge the district judge to consider doing so in this case. REVERSED AND REMANDED

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