United States v. McFall, No. 10-6238 (6th Cir. 2012)
Annotate this CaseDefendant committed several armed robberies in South Carolina and Tennessee. He was convicted in South Carolina state court and sentenced to 25 years. He pled guilty to federal charges of bank robbery, 18 U.S.C. 2113(d), and carrying a firearm during the robbery, 18 U.S.C. 924(c)(1), with respect to the Tennessee robberies and was sentenced as a career offender, based on two prior convictions. The court imposed a sentence at the low end of the guidelines: 188 months on count one, to run concurrently with the 25-year sentence, with an 84-month consecutive sentence on count 2. On remand, the government abandoned its contention that defendant was a career offender. Defendant sought a sentence at the low end of the now-applicable guidelines, consistent with the original sentence, at the low end of the career-offender range. A newly-assigned judge imposed a low-end sentence of 77 months, to run consecutively to the 25-year sentence, so that defendant may spend up to six more years in prison than under the original sentence. The Sixth Circuit affirmed. The remand was not limited to eliminating career offender status. The court and prosecution were not bound to concurrent sentencing. Defendant took the risk of a harsher sentence.
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