United States v. Herman, No. 17-1423 (7th Cir. 2018)
Annotate this CaseHerman, a member of the Latin Dragons gang, shot two people while he was stealing their guns. He pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. 922(g). The district court imposed a two-level sentencing enhancement for the use of physical restraint, on the theory that Herman “restrained” the victims when he pointed guns and ordered them to stay put. Herman was awaiting sentencing on an unrelated Indiana charge for misdemeanor theft, which carries a maximum penalty of one year in prison, and asked the district court to order that his federal sentence run concurrently with his state sentence. The court responded that it could not “control what the [Indiana state court] will do.” Herman was sentenced to 120 months in prison, The Seventh Circuit vacated. Federal district courts can order that a federal sentence run concurrently with a state sentence not yet imposed. Such an order is binding on the Bureau of Prisons, which implements that directive by designating the state prison as the place of imprisonment for the federal crime for whatever time is necessary to carry out the order. A district court need not exercise its discretion but its failure to acknowledge that discretion is a mistake of law. On remand, the court should consider Herman’s argument regarding the sentencing enhancement.
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