United States v. Kenneth Conley
2015 U.S. App. LEXIS 1556
| 7th Cir. | 2015Background
- Conley pled guilty to bank robbery and was held at the MCC awaiting sentencing when he and a cellmate sawed through a window, removed concrete, fashioned a sheet "rope," and descended 17 floors to escape; he was at large 17 days before recapture and charged with escape under 18 U.S.C. § 751(a).
- After the escape, the bank-robbery PSR was amended: acceptance of responsibility was removed and obstruction was added, raising Conley’s robbery guidelines to 240 months (the statutory cap); the robbery sentence of 240 months was imposed and later affirmed on appeal.
- Conley pleaded guilty to the escape; as a career offender his escape offense level was 17, reduced for acceptance, yielding a guidelines range of 37–41 months for the escape.
- At the escape sentencing, the primary dispute was whether U.S.S.G. § 5G1.3(b) (which can require concurrent sentences when a prior undischarged term is relevant conduct and increased the offense level under Ch.2 or Ch.3) applied, or whether § 5G1.3(c) applied instead, allowing the court discretion to impose consecutive time to achieve reasonable punishment.
- The district court concluded § 5G1.3(b) did not apply because: (1) the bank robbery was not "relevant conduct" to the escape under § 1B1.3, and (2) any increase in the escape offense level came from Chapter 4 (career-offender), not Chapters 2 or 3. The court sentenced Conley to 41 months consecutive to the robbery sentence.
- On appeal Conley argued (1) the court applied the wrong § 5G1.3 subsection and (2) the consecutive 41-month sentence was substantively unreasonable (including that the combined effect amounted to an upward departure requiring "compelling justifications"). The Seventh Circuit affirmed.
Issues
| Issue | Conley’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether § 5G1.3(b) applied (requiring concurrency) | Bank robbery was "relevant conduct" to the escape and the robbery contributed to the increased offense level for the escape (via career-offender status) | Robbery was completed prior to the escape and is not "relevant conduct" under § 1B1.3; the offense-level increase arose under Chapter 4, not Chapters 2 or 3, so § 5G1.3(b) does not apply | § 5G1.3(b) does not apply; district court correctly proceeded under § 5G1.3(c) |
| Substantive reasonableness of a 41-month consecutive sentence | The robbery sentence already reflected punishment attributable to the escape (increasing robbery to 240 months), so running a 41-month consecutive sentence double-punishes and is unreasonable | District court properly weighed § 3553(a) factors (seriousness, planning, risk, deterrence, criminal history) and reasonably imposed consecutive time to avoid creating a "freebie" incentive to escape | Sentence is substantively reasonable; no abuse of discretion in 41-month consecutive term |
| Whether court needed "compelling justifications" for the consecutive sentence | Because the effective additional punishment for the escape (overlap plus 41 months) functions like an upward departure, the court needed compelling justification | The escape sentence was within guidelines; overlap from separate convictions and guideline enhancements does not transform a within-guidelines consecutive sentence into an upward departure requiring compelling justification | No heightened justification required; within-guidelines consecutive sentence upheld |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (standard for review of substantive reasonableness of sentence)
- United States v. Rachuy, 743 F.3d 205 (7th Cir. 2014) (interpreting § 5G1.3(b)’s dual requirements)
- United States v. Nania, 724 F.3d 834 (7th Cir. 2013) (de novo review of correct application of sentencing procedures)
- United States v. Johns, 732 F.3d 736 (7th Cir. 2013) (discussing need for compelling justifications for above-guidelines sentences)
- United States v. Miller, 601 F.3d 734 (7th Cir. 2010) (same principle regarding justification for departures)
- United States v. Conley, [citation="541 F. App'x 699"] (7th Cir. 2013) (prior appeal affirming robbery sentence)