United States v. Baskin
Citation | 878 F.3d 1106 |
Decision Date | 08 January 2018 |
Docket Number | No. 17-2132,17-2132 |
Parties | UNITED STATES of America Plaintiff–Appellee v. Christopher BASKIN Defendant–Appellant |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
John Higgins, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha, NE, for Plaintiff–Appellee.
Christopher Baskin, Pro Se.
Michael David Gooch, MICHAEL D. GOOCH, Bennington, NE, for Defendant–Appellant.
Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
Clarence Christopher Baskin appeals his consecutive sentences for witness tampering and drug trafficking. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
A jury convicted Baskin of witness tampering. He later pled guilty to related drug trafficking, agreeing to a sentence of 120 months. The 11(c)(1)(C) plea agreement said: "The parties have no agreement regarding whether the sentence in [the drug-trafficking case] will be concurrent with or consecutive to the sentence in [the witness-tampering case]." He "knowingly and expressly waive[d] any and all rights to appeal the ... conviction and sentence" in both cases except, as applicable, whether the two sentences could run consecutively.
In a consolidated hearing, the district court1 sentenced Baskin to 120 months for drug trafficking, and a consecutive 48 months for witness tampering. He appeals the sentences, arguing (1) they should run concurrently, and (2) the government violated the plea agreement by advocating otherwise.
Baskin believes the district court erred in imposing consecutive sentences. This court reviews the "decision to impose a consecutive or concurrent sentence for reasonableness." United States v. Bryant , 606 F.3d 912, 920 (8th Cir. 2010). "A review for reasonableness is ‘akin’ to the ‘abuse-of-discretion’ standard." Id. , quoting United States v. Mathis , 451 F.3d 939, 941 (8th Cir. 2006).
U.S.S.G. § 5G1.2"specifies the procedure for determining the specific sentence to be formally imposed" where, as here, a defendant is sentenced on "multiple counts of conviction ... contained in different indictments ... for which sentences are to be imposed at the same time or in a consolidated proceeding." U.S.S.G. § 5G1.2 cmt. n.1 . It says:
The guideline range for the drug-trafficking conviction was 188–235 months. Consistent with the plea agreement, the court imposed the agreed sentence of 120 months. The guideline range for the witness-tampering conviction was 100–125 months. The government requested the court impose "a total punishment for all of the offense conduct in the combined cases," i.e., a low end of 188 months total, or at least 68 consecutive months for witness tampering. Baskin requested the witness-tampering sentence run concurrent to the drug-trafficking sentence.
The district court said:
The district court thus "var[ied] downward substantially" on the witness tampering "because of the amount of time imposed" in the drug-trafficking case. It concluded:
And this is the amount of time that I determined is sufficient but not greater than necessary to serve all of the statutory sentencing goals, which I tried to list earlier on in my statement.
The district court correctly calculated the guideline range for both offenses. It then "determine[d] the total punishment." U.S.S.G. § 5G1.2(b) . See United States v. Richart , 662 F.3d 1037, 1050–51 (8th Cir. 2011) ( ). Because of the binding plea agreement, the district court could not impose "total punishment" solely through the drug-trafficking sentence. The court thus imposed a consecutive 48–month sentence for witness tampering. See U.S.S.G. § 5G1.2(d) ( ). This consecutive sentence—substantially below the guidelines—was reasonable. See United States v. Bevins , 848 F.3d 835, 841 (8th Cir. 2017) () (internal citations and quotation marks omitted).
Baskin asserts the district court procedurally erred by failing to explain its consecutive sentences. This assertion is without merit. The court explained its decision based on the 18 U.S.C. § 3553(a) factors, which it listed and discussed. See United States v. Williamson , 782 F.3d 397, 399 (8th Cir. 2015) ( " ), quoting Richart , 662 F.3d at 1050.
Baskin also contends that 18 U.S.C. § 3584(a) prohibits consecutive sentences here: multiple terms of imprisonment "may not run consecutively for an attempt and for another offense that was the sole objective of the attempt." 18 U.S.C. § 3584(a) . Stated differently, he thinks the drug-trafficking sentence cannot run consecutively to the witness-tampering sentence because "the drug trafficking offense was the sole objective of the attempted tampering." Baskin did not raise this argument in district court. This court reviews it for plain error. See United States v. San–Miguel , 634 F.3d 471, 474–75 (8th Cir. 2011) ().
There is no factual or legal basis for the contention that 18 U.S.C. § 3584(a) prohibits consecutive sentences here. Baskin was convicted of witness tampering, not attempted witness tampering. Moreover, he cites no legal authority (and this court finds none) supporting his argument. An attempt conviction requires a substantial step toward the completion of an offense with the same elements. See United States v. Spurlock , 495 F.3d...
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... ... should not have received consecutive sentences. We disagree ... Section ... 3584(a) addresses a situation in which a defendant is being ... sentenced for both an attempt and for a completed offense of ... the same kind. See United States v. Baskin, 878 F.3d ... 1106, 1109-10 (8th Cir. 2018); United States v ... Aimufua , 930 F.2d 23, 1991 WL 49630, at *1 (4th Cir ... 1991). The "sole objective" of attempted ... retaliation is completed retaliation. Because Thomas was ... sentenced to murder for hire and ... ...
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...same deferential abuse-of-discretion standard that governs a reasonableness determination under § 3553(a). See United States v. Baskin , 878 F.3d 1106, 1108 (8th Cir. 2018).In 1994, Sykes was convicted of armed robbery and second-degree reckless homicide in Wisconsin. After those conviction......
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...decision to impose a consecutive sentence for reasonableness, comparable to the abuse-of-discretion standard. See United States v. Baskin, 878 F.3d 1106, 1108 (8th Cir. 2018). "A district court abuses its discretion when it (1) fails to consider a relevant factor that should have received s......
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