847 F.3d 878
7th Cir.2017Background
- Kevin Hoffman was federally convicted after a two-day trial for sexual exploitation of a child and possession of child pornography based on sexual conduct and photos from a single day (Sept. 5, 2013).
- At federal sentencing the judge applied Chapter Two and a Chapter Four career/recidivist enhancement (U.S.S.G. §4B1.5), producing a statutory cap of 360 months; the court imposed 300 months (25 years on the production count, merged possession).
- While Hoffman's federal sentence and appeal were pending, an Indiana jury convicted him in state court of repeated sexual abuse of the same child over 18 months; the state court later imposed the 50-year statutory maximum consecutively.
- At federal resentencing Hoffman argued U.S.S.G. §5G1.3(e) (anticipated state term for relevant conduct) required the district court to order his federal sentence to run concurrently with the anticipated state term.
- The district court declined to apply §5G1.3(c)/(e), reasoning (1) the Guidelines are advisory, (2) the Chapter Four enhancement is not "relevant conduct" triggering §5G1.3, and (3) even if the guideline applied the court would have declined to order concurrency and preferred to defer to state sentencing.
- The Seventh Circuit affirmed, holding §5G1.3 did not apply to Hoffman’s Chapter Four enhancement, any alternative challenge was waived or harmless, and the district court permissibly declined to impose concurrency pending fuller state proceedings.
Issues
| Issue | Hoffman’s Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Whether §5G1.3 requires concurrent federal sentence when a state sentence for relevant conduct is anticipated | §5G1.3(c)/(e) mandates concurrency where a state term for relevant conduct is anticipated | §5G1.3 is advisory; it does not apply to Chapter Four enhancements here; district court had discretion and could defer | The court held §5G1.3 did not apply to Hoffman’s Chapter Four enhancement and the district court did not err in declining to order concurrency |
| Whether the Chapter Four enhancement (§4B1.5) counts as "relevant conduct" under §5G1.3 | Enhancement constitutes relevant conduct triggering §5G1.3 | Chapter Four enhancements are not within the §1B1.3(a) relevant-conduct scope that §5G1.3 references | The court held §5G1.3’s relevant-conduct list ties to Chapters Two/Three (§1B1.3) and does not encompass Chapter Four enhancements |
| Whether any unraised argument that Chapter Two enhancements triggered §5G1.3 was reviewable | Argue Chapter Two guideline enhancements triggered §5G1.3 and required concurrency | Argument was not raised below and therefore waived; in any event any error was harmless because the district court would have declined concurrency | Court treated that contention as waived and, alternatively, harmless error |
| Whether remand is required because the district judge indicated possible lack of authority to grant concurrency | Hoffman reads the judge’s comment as legal error over advisory Guidelines | Court explained judge’s comment was contextual; judge knew Guidelines advisory and properly exercised discretion | No reversible error; affirmed |
Key Cases Cited
- Setser v. United States, 566 U.S. 231 (2012) (district courts may order federal sentences concurrent or consecutive to anticipated state sentences)
- Booker v. United States, 543 U.S. 220 (2005) (Sentencing Guidelines are advisory)
- United States v. Moore, 784 F.3d 398 (7th Cir.) (discussing advisory nature of §5G1.3 applications)
- United States v. Hawkins, 777 F.3d 880 (7th Cir. 2015) (encourages judges to state whether sentence would be same if disputed guideline issue resolved differently)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error/harmless-error framework for forfeited objections)
- United States v. Gill, 824 F.3d 653 (7th Cir.) (harmlessness of guideline calculation errors when district court would have imposed same sentence)