Gilbert v. United States, No. 21-2806 (6th Cir. 2023)
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Gilbert, on parole for a state conviction, was arrested for printing false identifications and credit cards and was returned to the custody of the Michigan Department of Corrections. Federal authorities charged Gilbert with identity theft crimes. Wolf was Gilbert's appointed counsel. Gilbert consented to federal detention pending trial. Gilbert pleaded guilty under 18 U.S.C. 1029(a)(4) and 1028A(a)(1). After reviewing Gilbert’s PSR, Wolf realized that he had mistakenly led Gilbert to believe that the time Gilbert had spent in federal detention would be credited against his federal sentence. Wolf acknowledged the error. The court offered Gilbert the opportunity to withdraw his plea but Gilbert decided to continue with sentencing. The court sentenced Gilbert to 15 months on Count 1, concurrent to the undischarged Michigan term, and 24 months on Count 2, “consecutive to Count 1 and all other terms of imprisonment.”
Gilbert filed a habeas motion. Wolf admitted that he gave Gilbert erroneous advice and that because of his incorrect understanding of the law he did not expedite Gilbert’s guilty plea and sentence; did not seek a downward adjustment under USSG 5G1.3; and did not object when the court ruled that the aggravated identity theft sentence had to run consecutive to all other undischarged sentences. The Sixth Circuit affirmed the denial of relief. Even if Gilbert could demonstrate that counsel’s performance—initial error followed by correction—was deficient, he failed to present evidence of prejudice. Sentences imposed under the aggravated identity theft statute must run consecutive to all other (including state) sentences and are not subject to USSG 5G1.3 adjustments.
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