McAnderson, Leon v. United States ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 7, 2007*
Decided February 5, 2008
Before
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2861
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Northern
District of Illinois, Eastern Division
v.
No. 86 CR 572-6
LEON McANDERSON
Defendant-Appellant. Charles R. Norgle, Sr.,
Judge.
ORDER
Leon McAnderson, a member of the El Rukn gang, conspired with others to
commit terrorist acts in the United States on behalf of the Libyan government. In
1987 a jury returned a guilty verdict against McAnderson on a single count of
conspiracy to commit terrorist acts, see 18 U.S.C. § 371, six counts of traveling in
interstate commerce to commit arson, see id. § 1952(a)(3), twenty-five counts of
using an interstate telephone facility to further illegal activity, see id., one count of
attempting to receive an explosive, see id. § 844(d), and two counts of possessing
unregistered firearms, see 26 U.S.C. § 5861(d). He was sentenced to a total of 51
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2861 Page 2
years’ imprisonment, which included thirty-one consecutive one-year sentences on
each of the travel and telephone counts. We affirmed his convictions on appeal. See
United States v. McAnderson, 914 F.2d 934 (7th Cir. 1990). Fourteen years later,
McAnderson moved to correct his sentence under former Federal Rule of Criminal
Procedure 35(a), arguing that the thirty-one consecutive one-year sentences are
illegal. The district court had jurisdiction to entertain the motion because former
Rule 35(a), which applies to offenses committed before November 1, 1987, allows
defendants to challenge illegal sentences “at any time.” See Hill v. United States,
368 U.S. 424, 430 (1962); United States v. Canino, 212 F.3d 383, 384 (7th Cir. 2000).
The district court denied the motion, and we affirm.
McAnderson argues that it was unlawful to punish him with multiple,
consecutive sentences for each act of travel or telephone use because they all
furthered the same illegal activity. But, as the district court explained, each act of
interstate travel or use of the telephone may be charged as a separate offense under
the Travel Act, regardless whether they were part of a common scheme. See United
States v. Briggs, 700 F.2d 408, 417 (7th Cir. 1983); United States v. Villano, 529
F.2d 1046, 1061-62 (10th Cir. 1976); United States v. Pollizzi, 500 F.2d 856, 897-99
(9th Cir. 1974). Accordingly, the court was empowered to sentence McAnderson up
to the statutory maximum of five years for each count, see 18 U.S.C. § 1952(a)(3),
and could elect that the sentences run consecutively, see, e.g., United States v.
Brocksmith, 991 F.2d 1363, 1368-69 (7th Cir. 1993); United States v. Graham, 856
F.2d 756, 762 (6th Cir. 1988).
AFFIRMED.