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| Concurrent/Consecutive Sentences |
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United States v. Cox,
No. 04-1378 (10th Cir., April 21, 2005) (Unpublished): Interesting issue on consecutive/concurrent state/federal sentences. Cox was indicted by the feds. Subsequent to the federal indictment, he plead guilty to second-degree murder in state court (Colorado). At this point, he has not been sentenced by either court. He plead guilty to the federal indictment and was sentenced to 168 months on the federal crimes to run consecutive to the state sentence which had not yet been imposed. He objected to the consecutive sentence. The Circuit cited Tenth Circuit precedent on point that allows a District Court to order a federal sentence to run consecutively to a possible state sentence (United States v. Williams, 46 F.3d 57 (10th Cir. 1995)). The Circuit recognized a strong circuit split on this issue: Second, Fifth, Eighth, Tenth, and Eleventh say yea; while the Ninth, Sixth, and Seventh say nay. Since the panel could not overrule established circuit precedent, the panel told Cox that it would "await with interest his petition for rehearing en banc."
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United States v. Contreras-Martinez,
No. 04-2072 (10th Cir., June 1, 2005) (Published): Defendant, from Mexico, enter the U.S. illegally, is caught, prosecuted, and sent to federal prison on a sentence of time to do followed by a period of supervised release. After his time in prison was served, he was deported. He showed up again in the U.S. during his time of supervised release and was again prosecuted for illegal entry; and also revoked on his period of supervised release. The District Court ran the sentences consecutively. The Circuit, in construing several Guidelines provisions, held that the consecutive nature of the sentences was acceptable and not plain error.
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United States v. Hammons,
No. 05-6168 (10th Cir., November 1, 2005) (Unpublished): Guilty plea case on a charge of felon in possession of a firearm. Hammons was sentenced under the Armed Career Criminal Act (the "ACCA") which has been prosecuted very aggressively by state and federal authorities (basically a convicted felon merely possessing a firearm). I included the case because Hammons was serving state prison time at the time of his federal sentencing and the federal court ran the federal sentence consecutively to the state time. The Circuit affirmed and stated that the decision to run time concurrent/consecutive is a matter of judicial discretion (although the sentencing court must give reasons). Be aware that your clients in federal court may get hammered in this manner.
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Binford v. United States,
No. 05-6052 (10th Cir., February 7, 2006) (Published): Binford, proceeding pro se, was convicted in both state and federal courts and raises issues concerning the credit for time served and the power of the federal court to sentence him consecutively to a state court case that had not been adjudicated. There is a circuit split on this issue as noted by the panel in this case, and the Tenth Circuit holds that a federal District Court does have the power to impose a federal sentence to be served consecutively to a state court prison term not in being at the time of the federal sentence. Also, this case discusses the law concerning when a federal prisoner actually begins serving his federal sentence and the interplay between a prisoner such as Binford prosecuted nearly simultaneously by the State and the feds. No relief for Binford in this case, but if you have a client in this position, take a look at this case.
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Bobby Ray Wyles, Jr., v. State,
No. RE-2005-355 (Okl.Cr., April 21, 2006) (unpublished): Revocation winner where the trial court erred in running the revoked time consecutively to other cases. Wyles was on suspended time in Osage County. He caught another case in Tulsa County and plead guilty. The plea in Tulsa occurred prior to the revocation hearing. At the revocation hearing, Judge Boggs ordered the revoked suspended time to run consecutively to the Tulsa time. The Court held Judge Boggs could not do this because the only issue at the revocation was whether Wyles violated his probation and if so should the sentence be executed; thus, anything added to this is prohibited because it would alter the original terms of the sentence. NOTE: the State confessed the error in this case because the law is so clear in this context.
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Higgins v. Branam,
2006 OK CR 23 (June 20, 2006): Habeas Corpus; State; Concurrent/Consecutive Sentences: Yes, we do have habeas corpus available in state criminal cases. Usually, the post-conviction procedures act governs post-conviction actions in state criminal cases. However, habeas is still available in challenging bond pre-trial and also in challenging the administration of the sentence (as opposed to an attack on the sentence directly). In this case, a defendant named Hainey was sentenced to 30 years in 1982. He was released on parole and committed new crimes to which he plead guilty and was sentenced to ten years with all cases to run concurrently with each other and with the 1982 conviction. DOC for some reason refused to administer the sentences in a concurrent fashion. Hainey petitioned for habeas corpus relief in the county in which he was being held, Atoka, and asserted that he was entitled to immediate relief if his sentences were administered properly. Judge Branam agreed and granted the writ. The State filed a Petition for Writ of Prohibition against Judge Branam (Higgins is the Warden at the prison where Hainey is housed). HELD: writ denied. The trial court has the power to run new cases concurrently with any other existing sentence.
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Steven Antonio Wooden v. State,
No. F-2005-391 (Okl.Cr., November 1, 2006) (unpublished): Judges/Bias/Recusal; Concurrent/Consecutive Sentences: Wooden was convicted of Robbery with Firearms in two separate cases (tried together) and sentenced to 30 years on each case, to run consecutively. The trial judge articulated throughout the case adherence to an unwritten courthouse policy of running sentences consecutively when the accused opts for a jury trial. Held: it was error for the trial judge to refuse to consider the imposition of concurrent sentences if Wooden exercised his right to a jury trial. This abuse of discretion, combined with the failure to instruct on the 85% rule, was remedied by modifying the sentences to 20 years and running them concurrently. Trial Judge: Hon. Twyla Mason Gray (Oklahoma County).
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United States v. Romero,
No. 07-1298 (10th Cir., January 4, 2008) (Published): Concurrent/Consecutive Sentences: Romero received a split federal sentence in a drug case which included 5 years of supervised release. He was released in 2001 and, unfortunately, caught more drug charges in state court for which he plead guilty and was sentenced to state prison time. Clearly, his new crimes would result in revocation of his supervised release time in the federal case. As a result, the United States Probation Department placed a detainer on Romero which will result in him being delivered to the U.S. Marshals upon his discharge of the state prison time. Romero filed a motion in his federal case for a hearing on whether the revocation of his federal time will run concurrently with his state time. The District Court denied the motion as premature. The panel recognized that an early determination might be beneficial to Romero, but nevertheless found no error in the District Court's decision. AFFIRMED.
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United States v. Eccleston
No. 07-2123 (10th Cir., March 31, 2008) (Published): Concurrent/Consecutive Sentences: Eccleston, a state prisoner convicted of both state and federal criminal offenses, filed a 2241 petition in federal court, asserting that although he is in state prison, he is entitled to go to federal prison and serve his federal sentence there, to serve his state/federal sentences concurrently, and that he is entitled to credit on his federal time for the time he has served in state prison. HELD: The 2241 application is dismissed with prejudice because it fails to raise any viable claim since the federal judgment and sentence fails to say anything about these issues. NOTE: Judge Lucero dissented. In his view, he would decide only the issue decided by the District Court---whether Eccleston exhausted his administrative remedies (and he would affirm dismissal on that basis).
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Walter Roundtree v. State,
No. F-2007-767 (Okl.Cr., September 3, 2008) (unpublished): 1. Fines; 2. Judges/Bias/Recusal; 3. Concurrent/Consecutive Sentences : Roundtree was convicted by a jury in Tulsa County of several sex crimes in the courtroom of the Hon. Dana L. Kuehn, and she ordered the sentences to run consecutively *and* imposed a fine of $500.00 that was not imposed by the jury. Judge Kuehn made comments on the record to the effect that if Roundtree chose to have a jury trial, she would run all counts consecutively if he was convicted "That is a for sure guarantee." The Court held: "The trial judge's articulated policy not to consider concurrent terms if a defendant elects a jury trial discourages the Fifth Amendment right not to plead guilty and deters the Sixth Amendment right to demand a jury trial." The remedy was to order the sentences to run concurrently. As to the fine, the Court stated that even though the fine was not imposed by the jury, it was authorized under the "general statute governing fines" found at 21 O.S. sec. 64 (up to $10,000.00) and was therefore lawful. Finally, the Court again puts a nail in the coffin of any possible jury instruction on sex offender registration, holding that there was no plain error in the absence of such an instruction in this case----with which even Judge Chapel concurs (there was no objection or submitted jury instruction in the trial court).
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