We all know that a Supreme Court opinion trumps a circuit opinion. To make that point crystal clear to litigants, the Sixth Circuit Court of Appeals issued an unpublished this week rejecting a defendant's consecutive sentence appeal.
In the opinion, the court noted it had vacated its own precedent in U.S. v. Almany in light of controlling Supreme Court precedent in Abbott v. U.S.
Appellant Padron Thomas pleaded guilty to one count of possession of more than 1000 kilograms of marijuana with intent to distribute and one count of possession of a firearm in furtherance of a drug-trafficking offense. Under a plea agreement, the government dismissed all other charges pending against Thomas, and Thomas waived his right to appeal any sentence imposed unless the sentence exceeded the statutory maximum.
At sentencing, Thomas received a downward departure for his cooperation with law enforcement, reducing his guidelines range to 151 to 188 months, but the district court sentenced him to 151 months' imprisonment for the drug count and a consecutive sentence of 60 months for possession of a firearm in furtherance of drug trafficking.
Thomas appealed, claiming that the district court erred in imposing the 60-month consecutive sentence in light of his 10-year statutory minimum sentence for the predicate drug count.
While the Sixth Circuit Court of Appeals had declined to order a consecutive sentence for possession of a firearm in the past, the appellate court's reasoning on the issue was superseded by Supreme Court authority in Abbott v. U.S. In Abbott, the Supreme Court held that the sentencing enhancement exception only applied to statutes addressing the same kind of conduct as the enhancement provision.
Since Thomas was convicted for possession with intent to distribute, and possession of a firearm is not similar conduct, the consecutive sentence exception did not apply to his case.
- U.S. v. Thomas (Sixth Circuit Court of Appeals)
- U.S. v. Almany (FindLaw's CaseLaw)
- No Sentencing Guidelines Departure for Military Service (FindLaw's Sixth Circuit blog)