United States v. Ikner, Vergil D. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2006*
Decided April 7, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-1591
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois
v.
No. 4:03CR40034-004-JPG
VERGIL D. IKNER,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Vergil Ikner pleaded guilty to two counts of conspiring to possess a controlled
substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846.
The government timely notified Ikner that, based upon his prior drug convictions, it
intended to seek a mandatory minimum sentence of ten years’ imprisonment. See
21 U.S.C. §§ 841(b)(1)(B), 851. At sentencing, the district court calculated Ikner’s
recommended imprisonment range as 120 to 150 months. The district court also
considered argument from both the government and Ikner’s counsel urging it to
*
After an examination of the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus the appeal is submitted on the
appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 05-1591 Page 2
credit Ikner for time he served on a related state conviction. See U.S.S.G. § 5G1.3.
The court ruled, however, that it lacked authority to go below the statutory
minimum to give credit for the discharged state prison term: “If the range was a lot
higher, I could give you, you know, depart downward because of your discharged
term of imprisonment on a related case, but I still don’t believe that gives me the
authority under the law to depart downward below the mandatory minimum.” The
court then sentenced Ikner to the statutory minimum term of ten years’
imprisonment on each of the two counts to be served concurrently.
On appeal Ikner’s counsel argues, and the government concedes, that the
district court erred in concluding that it was not authorized to adjust Ikner’s
sentence below the statutory minimum to account for time he served on a related,
discharged state sentence. We agree with the parties that the district court may
adjust a defendant’s federal sentence to account for time served on related charges
so long as the defendant’s total period of incarceration is equal to or greater than
the statutory minimum. See United States v. Ross, 219 F.3d 592, 594-95 (7th Cir.
2000); United States v. Rivers, 329 F.3d 119, 122 (2d Cir. 2003) (collecting cases).
Thus Ikner’s mandatory minimum term of imprisonment for purposes of
§ 841(b)(1)(B) may be viewed as the statutory minimum of 120 months less the
number of months served on his related state conviction. See Ross, 219 F.3d at 595;
U.S.S.G. § 5G1.3. We vacate Ikner’s sentence and remand the case on this basis.
We reject, however, counsel’s argument that Ikner’s mandatory minimum
sentence was erroneously enhanced based upon prior convictions that were not
alleged in the indictment or proved to a jury beyond a reasonable doubt. Counsel
recognizes that Almendarez-Torres v. United States, 523 U.S. 224 (1998), controls
and is still good law, and he concedes that he raises this issue strictly to preserve it
for Supreme Court review. See Hohn v. United States, 524 U.S. 236, 252-53 (1998).
In addition, although Ikner is represented by counsel, he has filed a pro se
brief on appeal. A represented litigant has no right to file a pro se brief, see, e.g.,
United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998), though in
appropriate circumstances we may permit such a filing, see Hayes v. Hawes, 921
F.2d 100, 102 (7th Cir. 1990). We allowed Ikner to file a brief, from which we can
discern two general challenges. First, Ikner contends that the government failed to
provide pre-plea notice under 21 U.S.C. § 851 of its intent to seek an enhanced
mandatory minimum sentence of ten years’ imprisonment. The record shows,
however, that the government filed an information listing the prior convictions
upon which it intended to rely and served Ikner with notice of its intent to seek an
enhancement prior to Ikner’s entering his plea. See United States v. Jackson, 121
F.3d 316, 319 (7th Cir. 1997). Ikner also argues that the district court violated the
Sixth Amendment by calculating his sentence based on facts that had not been
found by a jury—the drug quantity used to compute his guidelines range and that
No. 05-1591 Page 3
he possessed a gun during the offense. But in United States v. Booker, 543 U.S. 220(2005), the Supreme Court held that district judges may resolve factual disputes as
long as they treat the guidelines as advisory rather than conclusive. Here, the
district judge followed that approach.
For the foregoing reason, we VACATE Ikner’s sentence and REMAND the
case so that the district court may consider whether it wants to impose a different
sentence that takes into account the time Ikner served on his related state
sentence.