United States v. Wilder

125 F. App'x 740
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 11, 2005
DocketNo. 03-2744
StatusPublished
Cited by1 cases

This text of 125 F. App'x 740 (United States v. Wilder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wilder, 125 F. App'x 740 (7th Cir. 2005).

Opinion

ORDER

In this appeal, defendant Darren Wilder challenges his sentence, arguing that the district court (1) miscalculated to his detriment his credit for time-served; (2) failed to memorialize its order that his federal sentence run concurrent to his state sentence; and (3) increased his sentence based on facts neither proven to a jury beyond a reasonable doubt nor admitted by himself, in violation of the Supreme Court’s recent decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because we find that his time-served credit was miscalculated and that the district court did order his federal and state sentences to run concurrently, we vacate Wilder’s sentence and remand for resentencing.

I.BACKGROUND

On January 22, 2000, Wilder was arrested for being a felon in possession of a firearm in violation of Chapter 720, Section 5/24-l.l(a) of the Illinois Compiled Statutes. On April 4, 2002, he pled guilty to-this state charge and was sentenced to five years imprisonment in the Illinois Department of Corrections.

Less than a month later, on May 1, 2002, the federal government indicted Wilder with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On January 6, 2003, Wilder pled guilty to this indictment without entering into a plea agreement with the government, but reserved the right to contest that he was subject to enhanced penalties under 18 U.S.C. § 924(e)(1).

On May 7, 2003, the district court sentenced Wilder. Using the 2000 version of the United States Sentencing Guidelines, the court began with a base offense level of 24, as Wilder “had at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The court then adjusted that offense level to 33 upon finding that Wilder, with three prior qualifying convictions, was an armed career criminal. U.S.S.G. § 4B1.4(b)(3)(B). The court then gave Wilder a two-level reduction for acceptance of responsibility and a one-level reduction for timeliness of plea, resulting in an offense level of 30. Falling within criminal history category VI, the Guidelines provided a sentencing range between 168 and 210 months. Because Wilder’s prior convictions qualified him as an Armed Career Criminal under 18 U.S.C. § 924(e), however, a minimum 180 month sentence was required. The district court sentenced him to 192 months imprisonment.

The district court then considered the impact of Wilder’s previous state sentence on his federal sentence, since both state and federal convictions were predicated on the same conduct. Wilder argued that he should be given credit for time served on the state offense prior to his state guilty plea (323 days), as well as the time served between state sentencing and federal sentencing (another 398 days). The district court orally stated, pursuant to U.S.S.G. [742]*742§ 5G1.3(b), that the federal sentence it was imposing was to run concurrent to the state sentence—but there was some confusion as to how to calculate the exact time already served on the state sentence. As a result of the confusion, a status hearing was later held in which the parties inadvertently miscalculated Wilder’s time served to be only 12 months. Based upon this miscalculation, the district court credited Wilder with only 12 months of time served, thereby reducing his federal sentence from 192 to 180 months.

In addition, though the district court had orally ordered that the federal sentence run concurrently with the state sentence, its written judgment did not reflect this order. Wilder appeals his sentence.

II.ANALYSIS

A. “Time-Served” Credit

U.S.S.G. § 5G1.3(b) provides that if a defendant has an “undischarged term of imprisonment [that] resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” In other words, a sentencing judge must give a convict credit for an undischarged term of imprisonment attributable to offenses that are accounted for by the instant, federal offense. United States v. Phipps, 68 F.3d 159, 160-61 (7th Cir.1995). This provision accounts for the fact that the prisoner is being sentenced by two different entities (state and federal governments) for the same conduct. Section 5G1.3(b) assuages potential injustice through a “coordination of sentences” that “approximate[s] the total penalty that would have been imposed had the sentences for the different offenses been imposed at the same time,” Witte v. United States, 515 U.S. 389, 404-05, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), thereby insuring that the convict is not penalized twice for the same conduct, United States v. Blackwell, 49 F.3d 1232, 1241 (7th Cir. 1995). Here, Wilder has been sentenced twice, once by Illinois and once by the United States, for the same conduct—being a felon in possession of a firearm. To prevent him from being punished twice, his time served under the Illinois sentence prior to the date of his federal sentencing must be credited against his overall federal sentence.

Wilder served 323 days on the state charge prior to state sentencing on April 4, 2002. He served 398 days between the imposition of the state sentence (April 4, 2002) and imposition of the federal sentence (May 7, 2003). He served an additional 26 days between the imposition of his federal sentence and the actual entry of judgment (June 4, 2003). Thus, Wilder’s credit for time served should have been either 721 days (24 months) for the period up to imposition of federal sentence, or 747 days (24.9 months) for the period up to actual entry of judgment. Due to an inadvertent miscalculation by the district court and both parties,1 however, Wilder was credited with only 12 months of time served. Thus, on appeal, Wilder seeks full credit for time served.

[743]*743The government notes that Wilder has waived any argument to entitlement to additional time-served credit. Though laboring under a universal misunderstanding at the status conference, Wilder requested a 12-month time credit and that is exactly what he got. See United States v. Martinez-Jimenez, 294 F.3d 921, 922 (7th Cir.2002) (holding that defendant’s assent to application of guideline provision constituted waiver of argument against its application); United States v. Mantas 274 F.3d 1127, 1130 (7th Cir.2001) (same). The government, however, here waives Wilder’s waiver of the argument, United States v. Caputo, 978 F.2d 972

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Related

United States v. Wilder, Darren
274 F. App'x 492 (Seventh Circuit, 2008)

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Bluebook (online)
125 F. App'x 740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wilder-ca7-2005.