Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
No. 2:95 CR 80 Rudy Lozano, Judge.
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
Appellant Patrick Greer pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. sec. 922(g).
Greer was sentenced to sixty-three months' imprisonment, twenty-five months of which was to run consecutively to another sentence that was imposed minutes before. Greer maintains that the district court erred in failing to apply the multiple count grouping rules in U.S.S.G. sec. 5G1.2 in sentencing him. We vacate and remand for resentencing.
In 1991, Greer was indicted on one count of conspiracy to distribute narcotics, 21 U.S.C. sec. 846, in the Northern District of Illinois, case no. 91 CR-463-2. ("Illinois case"). A warrant was issued for his arrest, but Greer successfully evaded capture until December 10, 1994. On that date, U.S. Marshals tracked him down at his abode in Gary, Indiana and arrested him. Greer had a .38 caliber revolver in his possession at the time of his arrest. The subsequent search of Greer's residence, which he shared with a thirdparty, revealed three other firearms, narcotics, and narcotics paraphernalia. Greer's possession of a gun was illegal, as he had been convicted of a felony drug offense in Mississippi in 1987.
On August 25, 1995, Greer was charged by information with being a felon in possession of a firearm, 18 U.S.C. secs. 922(g), 924(a), in the Northern District of Indiana ("Indiana case"). The Indiana case, which is the subject of this appeal, was assigned to Judge Lozano, who was also assigned the Illinois case by special designation. The cases were processed separately, however, at least formally. An Assistant United States Attorney for the Northern District of Illinois prosecuted the Illinois case, while an Assistant United States Attorney for the Northern District of Indiana prosecuted the Indiana case. In addition, two different defense attorneys represented Greer in the respective cases. Greer pled guilty to both offenses pursuant to separate plea agreements.
In the Indiana case, Greer's plea agreement provided that, on December 10, 1994, Greer possessed a handgun in Gary, Indiana, an act rendered illegal by his prior Mississippi felony conviction. The plea agreement also provided that the government would not oppose a sentence concurrent with the sentence to be imposed in the Illinois case. The government also agreed that the proper sentence was the guideline minimum, and that, if the court rejected this provision, Greer could withdraw his plea. Greer pled guilty on September 8, 1995, but the court withheld formally accepting his plea until the presentence report was prepared. The acceptance of the plea in the Illinois case was similarly deferred.
The presentence report ("PSR") was prepared on September 21, 1995 and revised on November 1, 1995, the effective date of the 1995 Sentencing Guidelines. The PSR indicated that the 1995 Guidelines had been utilized. The PSR calculated Greer's offense level at 22, which included a base offense level of 24 under U.S.S.G. sec. 2K2.1(a)(2), a one point enhancement for multiple firearms under U.S.S.G sec. 2K2.1(b)(1)(A), and a three point reduction for acceptance of responsibility under U.S.S.G. sec. 3E1.1. The PSR counted the Illinois case as one of the two prior felony convictions for controlled substance offenses required to apply sec. 2K2.1(a)(2), based upon the "assumption" that the Illinois case would be sentenced first. The PSR indicated that Greer's criminal history category was IV. The criminal history category included three points for the Mississippi state conviction, two points because the Indiana offense occurred while Greer was on parole for the Mississippi offense, and three points for the Illinois case. The Illinois case was included in the criminal history calculation because it was scheduled to be sentenced on November 9, 1995, over a month before Greer was set to be sentenced in the Indiana case. The PSR calculated Greer's guideline range as 63-78 months. The PSR noted that the judge should apply U.S.S.G. sec. 5G1.3 because Greer would be subject to the undischarged term of imprisonment in the Illinois case when sentenced. The PSR further indicated that under U.S.S.G. sec. 5G1.3 cmt. 3, the judge should consider the hypothetical sentence which would have resulted if the two cases had been sentenced together under U.S.S.G. sec. 5G1.2 *fn1 and consider a concurrent sentence. *fn2
Greer's sentencing in the Illinois case, however, was delayed. Ultimately, Greer was sentenced in both the Illinois case and the Indiana case sequentially before Judge Lozano on December 19, 1995. The judge formally accepted the respective guilty pleas in both cases during this proceeding. Greer was sentenced in the Illinois case first. Counsel in the Illinois case argued that Greer should not be charged with a criminal history point for the Indiana case and that the cases should be deemed functionally consolidated. The court agreed that the criminal history point was inappropriate, but made it very clear that the cases were not being consolidated, stating: "Counsel, for the record, however, though, I am not consolidating these cases, nor have I ever indicated that I would consolidate them."
The court found that the offense level in the Illinois case was 23, the criminal history category was III, and the guideline range was 57-71 months. The court noted that a 60-month statutory minimum applied and sentenced Greer to the ...