Thursday, February 09, 2017
Ind. Decisions - 7th Circuit decided one Indiana case yesterday
In USA v. Kevin Hoffman (ND Ind., Miller), a 10-page opinion, Judge Manion writes:
For conduct arising out of one day’s sexual abuse, Kevin Hoffman was convicted after a two‐day federal jury trial of one count of exploitation of a child and one count of possession of child pornography in interstate commerce, and faced a sentence of up to thirty years in prison. While his sentence was pending, he was convicted in state court of sexual abuse of the same child over a period of eight‐ een months, and faced a sentence of up to fifty years in state prison. This case involves the discretion of a federal district court judge under U.S.S.G. § 5G1.3 to impose a concurrent or consecutive sentence, or to decline to impose either, when a subsequent state sentence for relevant conduct is anticipated. Hoffman argues that the plain language of the Sentencing Guidelines requires a district judge to impose a concurrent sentence in such a situation. Because the Guidelines are advi‐ sory, and because U.S.S.G. § 5G1.3 is inapplicable in this case, we affirm the decision below. * * *
As tried in federal court, the jury did hear some testimony of Jane Doe related to her long‐term abuse at the hands of Hoffman, but this testimony was limited because the charges were related to a single day’s conduct. The district court ob‐ served that the potentially more expansive state criminal trial might unveil additional factors, both aggravating and miti‐ gating, that could serve to place the state judge in a better po‐ sition than the federal judge to determine whether a concur‐ rent or consecutive sentence was warranted. As it turns out, the state judge did preside over a more expansive prosecution covering not one day, but 18 months of repeated abuse of a 6‐ year old girl at the hands of a man who was supposed to be caring for her. The state court found several aggravating fac‐ tors, no mitigating factors, imposed the statutory maximum sentence, and imposed that sentence consecutively. The in‐ stincts of the federal judge in this case about the need to defer were entirely appropriate.
To find the district court order in error, vacate it, and re‐ mand for a third resentencing could thus place Hoffman in no better position than he is now. As the district judge indicated, even applying § 5G1.3(c) he would still decline to impose a concurrent sentence, so that any hypothetical error clearly did not affect the district court’s decision. United States v. Gill, 824 F.3d 653, 662 (7th Cir. 2016).
Posted by Marcia Oddi on February 9, 2017 07:02 AM
Posted to Ind. (7th Cir.) Decisions