Judges say Circuit split requires clarification from sentencing commission

A panel of judges on the 7th Circuit Court of Appeals affirmed a man’s 117-month prison sentence on drug and weapons charges, but two judges believed the case should have been heard en banc based on the importance of a sentencing issue.

Roderick D. Sinclair was indicted and convicted of possessing marijuana with intent to distribute, possessing a firearm in furtherance of a drug trafficking crime, and possessing a firearm as a felon. His presentence report recommended grouping the drug count with the felon-in-possession count under Section 3D1.2 of the U.S. Sentencing Guidelines, which directs the court to combine all “counts involving substantially the same harm” into a single group and determine the offense level for the group.

The government objected, noting that although the two counts ordinarily would be treated as specific offense characteristics of each other, they did not have that effect here because of Sinclair’s Section 924(c) offense of having a weapon in furtherance of a drug trafficking crime. Because of that conviction, the guidelines direct the court not to apply any offense-characteristic enhancements for firearm possession to the underlying count.

The District Court agreed, which meant Sinclair’s offense level went from 16 to 17.

In United States of America v. Roderick D. Sinclair, 12-2604, the 7th Circuit upheld the District Court’s decision, finding the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating Section 924(c), which carries a mandatory consecutive sentence. Because the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under Section 3D1.2(c), Judge Diane Sykes wrote.

She noted their ruling is opposite of what the 8th Circuit Court of Appeals held when confronted with the same combination of counts. That Circuit relied on the introductory comment to Part D of Chapter Three of the guidelines. It held because the three counts in its case were “closely intertwined” as explained in the comment, and arose from the same course of conduct, the drug-trafficking and felon-in-possession counts should be grouped.

Judge Ann Claire Williams, with Judge Richard Posner joining, dissented from the full court’s decision to not hear Sinclair’s case en banc. She said the sentencing issue is one of great important deserving consideration of the entire court.

“Firearm and drug offenses are charged quite frequently together, so the panel’s decision will affect the sentencing of many defendants. And that effect will mean a higher offense level which will often lead to a longer sentence,” she wrote, noting on the merits she agrees with the 8th
Circuit’s decision in United States v. Bell, 477 F.3d 607 (8th Cir. 2007).

Because of the Circuit split on the issue, the United States Sentencing Commission should clarify its position in situations like this, she wrote.

The panel also affirmed that the denial of Sinclair’s request for a continuance so his family could hire a private attorney for his defense did not violate the Sixth Amendment. The judge appropriately weighed the uncertainties of Sinclair’s plan to hire private counsel against the costs of a last-minute adjournment to the government, the witnesses and the fair and efficient administration of justice.