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United States v. Ramon

No. 19-1221. D.Colo. Judge Phillips. 18 USC § 3584(a). Consecutive versus Concurrent Sentencing—Plain Error Standard.

April 27, 2020

Defendant’s parole officer filed a petition to revoke his supervised release for possession of controlled substances and a firearm. During the revocation hearing, the government mentioned that it might seek to indict defendant for illegally possessing a firearm. The district court found three violations. It sentenced defendant to the statutory maximum sentence for possessing a firearm and ordered that this sentence run consecutively to any sentences imposed previously or prospectively in federal or state court.

On appeal, defendant argued that the district court exceeded its authority under 18 USC § 3584(a) by ordering the sentence to run consecutively to future federal sentences. Section 3584(a) allows the district court discretion to run sentences consecutively when the defendant is already subject to an undischarged term of imprisonment, or when the court is imposing multiple terms of imprisonment. This provision does not provide a district court with the authority to run a term of imprisonment consecutive to a potential future term. Here, the district court did not sentence defendant on multiple convictions, nor did it sentence him while he was subject to an undischarged term of imprisonment. Accordingly, the court lacked statutory authority to impose a consecutive sentence.

However, as defendant acknowledged, no US Supreme Court or Tenth Circuit case has ruled on the issue he presented, and the statutory language was not so clear and obvious as to make the error plain. Further, while defendant’s sentence was erroneous, it was not illegal and therefore not plain error per se.

The sentence was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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