United States v. Lindani Mzembe ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1265
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LINDANI MZEMBE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15-cr-00087-RLM-MGG-2 — Robert L. Miller, Jr., Judge.
____________________
SUBMITTED JULY 8, 2020 * — DECIDED NOVEMBER 9, 2020
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents several re-
lated issues about how federal judges should decide whether
sentences in federal prosecutions should run consecutively to
* We have agreed to decide this case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. See Fed. R. App.
34(a)(2)(C).
2 No. 20-1265
or concurrently with separate sentences in unrelated state
prosecutions. The issues arise in an unusual way in this case
because the state court had already decided to impose a long
sentence consecutive to the federal offender’s federal sen-
tence. Intervening changes in federal law then required resen-
tencing in federal court, where the consecutive v. concurrent
question could be revisited. The defendant-appellant argues
that, in refusing to make the new federal sentence concurrent
with the intervening state sentence, the district judge erred
(a) by giving an inadequate explanation for his decision,
(b) by deferring to the state court’s intervening judgment to
make the sentences consecutive, and (c) by imposing an un-
reasonably severe sentence that is a de facto life sentence. We
find no reversible error, so we affirm the new federal sentence.
I. The Defendant and His Crimes and Punishment
A. The Defendant’s Federal Crimes and Original Sentence
In 2015, defendant Lindani Mzembe and two other men
kidnapped another man, shot him, beat him (including beat-
ing his head with at least one handgun), and held him for ran-
som. When they thought their victim’s injuries might prove
fatal, Mzembe and the others abandoned him in an alley,
bleeding and blindfolded with duct tape. Separate juries in
the Northern District of Indiana found the three men guilty of
multiple federal crimes.
The district court imposed heavy sentences: forty-four
years in prison for Mzembe, fifty-four years and eight months
for Derek Fields, and thirty-seven years for Ivan Brazier. All
three appealed. In those appeals, intervening changes in law
required us to vacate Mzembe’s and Fields’s convictions un-
der 18 U.S.C. § 924(c) for discharging a firearm in a crime of
No. 20-1265 3
violence. United States v. Brazier, 933 F.3d 796, 802 (7th Cir.
2019). In that opinion, we affirmed all other convictions and
Brazier’s sentence, but we remanded for resentencing of
Mzembe and Fields on the convictions that still stood. Upon
remand, Fields was resentenced to forty-three years in prison
and did not appeal.
B. The Intervening State Convictions and Sentence
All issues in this second appeal by Mzembe arise from an
unexpected development between Mzembe’s two federal sen-
tencing hearings. In between, Mzembe was convicted in an
Indiana state court for other serious and violent crimes that
he had committed before the kidnapping.
In 2014, Mzembe and another man committed a brutal
home invasion, beating and terrorizing a family to rob them
of money and property. Frustrated because they could not
find enough valuables to steal, Mzembe and the other robber
forced the entire family to kneel and face a couch, with a gun
aimed at the pregnant wife and mother. At some point, the
husband and father reached for the gun and struggled with
the robbers. Mzembe somehow managed to get away before
the police arrived. The other robber was caught quickly,
though, and he identified Mzembe as his partner in the
crimes. Mzembe v. State, 113 N.E.3d 812 (Ind. App. 2018)
(mem.) (affirming convictions and sentence).
The judge in the state case imposed a sentence of sixty-two
years, consisting of sixteen years for robbery resulting in bod-
ily injury, thirty years for burglary armed with a deadly
weapon, and sixteen years for robbery by putting someone in
fear resulting in bodily injury, all consecutive to each other.
Knowing that Mzembe had already been sentenced to forty-
4 No. 20-1265
four years in federal prison, the judge also ordered the state
sentence to run consecutive to the original federal sentence.
By the time Mzembe was ready for resentencing in federal
court, the state sentence was final.
C. Resentencing in Federal Court
After we set aside Mzembe’s firearm conviction under 18
U.S.C. § 924(c), he still stood convicted of kidnapping (18
U.S.C. § 1201), making a ransom demand (18 U.S.C. § 875(a)),
and being a felon in possession of a firearm (18 U.S.C.
§ 922(g)(1)). Under the Sentencing Guidelines, he qualified for
criminal history category VI, and his total offense level
worked out to level forty-four, which is literally off the chart,
as the federal Sentencing Guidelines top out at level forty-
three. At that level, the Guidelines advise a life sentence even
for an offender in criminal history category I, let alone for
someone like Mzembe in category VI. The parties agree that
the guideline range for Mzembe’s federal crimes upon resen-
tencing was life in prison.
Judge Miller resolved all guideline issues and other objec-
tions to the presentence report and heard the parties’ presen-
tations on the statutory factors under 18 U.S.C. § 3553(a), as
well as Mzembe’s allocution. The government recommended
a new federal sentence of 480 months (forty years). Mzembe
proposed a federal sentence of 408 months (thirty-four years).
Mzembe also argued that his state sentence was so heavy
that the federal sentence should run concurrently with it. The
government argued that the court did not have the power or
discretion to impose a sentence concurrent with the state sen-
tence, and that the sentences should be consecutive in any
event. Judge Miller imposed a new federal sentence of thirty-
No. 20-1265 5
six years, and he explained it both orally and in a written opin-
ion, pursuant to his usual and helpful practice. The judge de-
nied Mzembe’s request for concurrent sentences and ordered
the newly reduced federal sentence to run consecutively, con-
sistent with the state judge’s intervening sentencing decision.
There were, so to speak, a lot of moving parts in the resen-
tencing. The guideline range had changed for several reasons,
rising to life in prison on the federal crimes alone. The court
addressed the principal defense arguments, including the ev-
idence that co-defendant Fields had coerced Mzembe to com-
mit crimes with him by breaking his jaw two weeks before the
kidnapping. (Apparently Mzembe had owed money to Fields
and could not pay it.) The court rejected a minor-role adjust-
ment under U.S.S.G. § 3B1.2 but said that a below-guideline
sentence would be appropriate for the federal crimes, partic-
ularly in light of the coercion by Fields, even though, as the
court also pointed out, once Mzembe had joined in, he had
participated enthusiastically in the kidnapping and beating
and had brought a gun to commit those crimes. The judge also
considered the evidence of Mzembe’s efforts at rehabilitation
in prison. These included earning his GED degree, going
through alcohol- and drug-abuse treatment, turning to reli-
gion, and for the first time expressing remorse in court for
what happened to the man who was kidnapped, beaten, and
shot.
After announcing the proposed federal sentence, the judge
turned to the issue with the biggest practical impact, which
was whether to make the new federal sentence concurrent
with or consecutive to the intervening state sentence, in whole
or in part. The judge’s oral and written remarks on that sub-
ject were brief—the defense argues much too brief—coming
6 No. 20-1265
right after the explanation of the sentence for the federal of-
fenses. In the hearing, the judge said:
I don’t know if I have the authority to run the
sentences concurrent rather than consecutively.
I think I do, but I haven’t looked it up because I
didn’t know we were coming here. And, of
course, that’s responding to what’s being raised
fluidly. But if I do have the authority to order
them concurrent, I don’t think it would be an
appropriate exercise of my authority to do that.
The state sentencing judge—I don’t know
whether he or she—had the full federal record
available to him or her when fashioning the sen-
tence for your state crime, and that judge de-
cided that the reasonable punishment for the
state’s crime included consecutive sentencing,
that the sentence that was imposed was not just
62 years but also the provision that you not even
start serving it for 45, 46 years, whatever it was
then.
It’s one thing for a federal court to modify a fed-
eral sentence in light of changes in federal law.
That’s what I’m doing here today. It would be a
far different thing for me to restructure your
state sentence, and I really think that’s what I
would be doing if I ordered these [to] run con-
currently. And so while assuming that I do have
the authority to do it, I don’t think this would
be the appropriate case to do it in and will—
well, I guess I should—I’m not sure I’m sup-
posed to add anything to the—well, just so the
No. 20-1265 7
Bureau of Prisons knows what I provided, I will
order them to run consecutively.
SA61–62. The judge’s written explanation, after summarizing
the parties’ positions, was consistent and even more concise:
Assuming that the court has the authority to
structure a federal sentence as it sees fit, to do as
Mr. Mzembe asks would be inappropriate in his
case. The sentencing state judge had the full fed-
eral record available when fashioning the sen-
tence for Mr. Mzembe’s state crime, and de-
cided that a reasonable punishment included
consecutive sentencing: 62 years in custody, not
to begin until the (then) 44-year federal sentence
is completed. It is one thing for a federal court
to modify a federal sentence in light of changes
in federal law, but it would be a far different
thing for a federal court to restructure the state
sentence. The court will order the sentences run
consecutively.
SA20−21.
II. Analysis
In some cases with defendants who are already subject to
another undischarged term of imprisonment, and this is an
example, the consecutive v. concurrent question may have
greater practical consequences than any other aspect of the
sentence. As noted, Mzembe sees three related errors in the
court’s handling of this issue. First, he argues that the court
failed to provide an explanation sufficient to allow meaning-
ful appellate review of this discretionary decision. Second, he
argues that the district court erred by relying on a legally
8 No. 20-1265
impermissible factor (consistency with the state court’s deci-
sion) and failed to explain the decision in terms of § 3553(a),
as required by 18 U.S.C. § 3584(b). Third, he argues that con-
secutive sentences are substantively unreasonable because
the combination of state and federal sentences is a de facto life
sentence.
We review de novo claims of procedural error, such as
Mzembe’s first two arguments. United States v. Marin-Castano,
688 F.3d 899, 902 (7th Cir. 2012). When considering an argu-
ment that a sentence is substantively unreasonable, we con-
sider whether the district court abused its discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Mzembe’s issues are so
closely related that we address them together. We reject, how-
ever, the government’s argument that Mzembe waived his
procedural objections by failing to raise them in the district
court. Appellate challenges to the sufficiency of sentencing ex-
planations can be headed off if the sentencing judge asks
counsel specifically if they believe more of an explanation is
needed. The judge did not ask such a specific question here.
A general invitation for objections or asking “anything else?”
at the end of the hearing is not sufficient, however, to show a
waiver of challenges to the sufficiency of an explanation. See
United States v. Speed, 811 F.3d 854, 857−58 (7th Cir. 2016), dis-
cussing United States v. Garcia-Segura, 717 F.3d 566 (7th Cir.
2013), and United States v. Donelli, 747 F.3d 936, 941 (7th Cir.
2014).
The government now agrees that the district court had dis-
cretionary authority to make Mzembe’s new federal sentence
either concurrent with or consecutive to the intervening state
sentence. Section 3584(b) of the criminal code provides: “The
court, in determining whether the terms imposed are to be
No. 20-1265 9
ordered to run concurrently or consecutively, shall consider,
as to each offense for which a term of imprisonment is being
imposed, the factors set forth in section 3553(a),” which is the
general statement of the purposes of factors relevant to fed-
eral sentences.
Section 3584(b) thus directs a sentencing court to § 3553(a),
which in paragraphs (a)(4) and (a)(5) directs the court to con-
sider the advice of the Sentencing Guidelines. Section 5G1.3
applies to decisions about consecutive and concurrent sen-
tences for a defendant subject to an undischarged term of im-
prisonment or an anticipated state term of imprisonment.
Subsections (a), (b), and (c) of that provision do not apply
here, and subsection (d) is a policy statement that allows the
district court to impose concurrent, consecutive, or partially
concurrent sentences “to achieve a reasonable punishment for
the instant offense.” Relevant to such a discretionary decision
about consecutive or concurrent sentencing for unrelated
cases, the Guidelines offer the following in an application note
for U.S.S.G. § 5G1.3(d):
(A) In General.—Under subsection (d), the court
may impose a sentence concurrently, partially
concurrently, or consecutively to the undis-
charged term of imprisonment. In order to
achieve a reasonable incremental punishment
for the instant offense and avoid unwarranted
disparity, the court should consider the follow-
ing:
(i) the factors set forth in 18 U.S.C. § 3584 (refer-
encing 18 U.S.C. § 3553(a));
10 No. 20-1265
(ii) the type (e.g., determinate, indetermi-
nate/parolable) and length of the prior undis-
charged sentence;
(iii) the time served on the undischarged sen-
tence and the time likely to be served before re-
lease;
(iv) the fact that the prior undischarged sen-
tence may have been imposed in state court ra-
ther than federal court, or at a different time be-
fore the same or different federal court; and
(v) any other circumstance relevant to the deter-
mination of an appropriate sentence for the in-
stant offense.
U.S.S.G. § 5G1.3 cmt. n. 4(A). The note thus refers specifically
to whether the other sentence was imposed by a state or fed-
eral court, though without explaining the significance of the
factor. The note also includes the open-ended invitation to
consider any other relevant circumstances.
A district court must “explain its sentence by reference to
the sentencing criteria set out in 18 U.S.C. § 3553(a)” and is
best advised to limit its discussion of “extraneous” details lest
we conclude the sentence was based on “irrelevant consider-
ations.” See United States v. Robinson, 829 F.3d 878, 880 (7th
Cir. 2016) (quotation marks and citations omitted). Mzembe
points out that the district court did not provide any separate
explanation of the § 3553(a) factors in deciding to keep the
sentences consecutive. He cites United States v. Jackson, 546
F.3d 465 (7th Cir. 2008), in which we vacated a federal sen-
tence where the court had not sufficiently explained its deci-
sion to make the sentence consecutive to a state sentence for
No. 20-1265 11
some of the same conduct. The court had explained why the
sentence was in the middle of the guideline range but had of-
fered only a “brief, cryptic response” to the defendant’s argu-
ment for concurrent sentences. Id. at 472. We found that was
not sufficient and remanded for further consideration.
Mzembe also cites United States v. Patrick, 707 F.3d 815 (7th
Cir. 2013), where the government and defense had argued for
a federal sentence to run concurrently with a related state sen-
tence, particularly because the defendant had offered sub-
stantial cooperation to both state and federal prosecutors. De-
spite those recommendations, the district court imposed a
consecutive sentence that amounted to a de facto life sentence.
We concluded that the district court’s terse explanation did
not show that the court had appreciated and considered the
relevant factors, including the defendant’s cooperation. Id. at
819−20.
From Jackson and Patrick and § 3584(b), Mzembe argues
that when a district court exercises its discretion in choosing
between concurrent and consecutive sentences, the judge
must explain that specific decision, not just the overall sen-
tence, in terms of the § 3553(a) factors, and with much more
of an explanation than the judge provided here.
We need not decide here whether the reasoning of Jackson
and Patrick would render the explanation here insufficient or
even substantively off-target if it had been the explanation
given in an original sentencing hearing. In this case of resen-
tencing, after an intervening and consecutive state-court sen-
tence, we see no reversible error in the extent or the content of
the explanation. We rely here on the unusual circumstances
presented by the sequence of Mzembe’s original and long fed-
eral sentence, the later and even longer state sentence that the
12 No. 20-1265
state judge chose to impose consecutively for completely in-
dependent crimes, and our appellate remand for resentencing
on the remaining federal charges.
By the time of the resentencing, Judge Miller knew this
case and the sentencing issues thoroughly. He had carefully
considered the many aggravating and mitigating circum-
stances both in the original sentencing and with new infor-
mation for the resentencing. He had carefully explained his
thinking in both sentencing decisions in terms of the applica-
ble Sentencing Guidelines and § 3553(a).
To be sure, in resentencing Mzembe on the federal
charges, the judge explained that he was focusing first only
on those crimes and not on the question of consecutive v. con-
current for the intervening state sentence. And the district
court’s analysis of one of the § 3553(a) factors (“the need for
the sentence imposed to protect the public from future crimes
of the defendant,” § 3553(a)(2)(c)) did not acknowledge that
the state sentence would incapacitate Mzembe for decades in
all events. When the judge turned to the consecutive v. con-
current question, he did not go through a fresh analysis of the
§ 3553(a) factors.
Viewed in isolation, these stray statements and omissions
could suggest that the district judge was unaware of the
§ 3553(a) factors’ relevance to the consecutive determination.
But he introduced argument by counsel on the § 3553(a) fac-
tors by noting that the statutory factors were “hard to sepa-
rate” from the other sentencing issues “given the request for
concurrent sentencing.” In imposing the consecutive sen-
tence, moreover, the judge could not have forgotten what he
had said just minutes before. His explanation for keeping the
sentences consecutive focused on two additional facts: the
No. 20-1265 13
state sentence had been imposed after the original federal sen-
tence, and the state-court judge had known of both the federal
crimes and sentence when he decided to impose a heavy, con-
secutive sentence for the unrelated but similarly violent and
terrifying crimes prosecuted in state court. Those facts con-
vinced the district judge not to impose concurrent sentences
so as to “restructure,” which in context would have meant to
reverse, the state court’s decision about how to marginally
punish Mzembe for the serious and violent state crimes.
Mzembe argues that “deference to the state court” is not a
factor under § 3584 and that the district court’s consideration
of that factor amounted to a legal error. We disagree. The dis-
trict court was not required to treat the state court’s independ-
ent, intervening decision as legally irrelevant to the federal re-
sentencing. As noted, § 3584(b) directs the court to § 3553(a),
which directs the court to, among other factors, the Sentenc-
ing Guidelines, which in turn call for consideration of the
non-federal nature of the intervening sentence and “any other
circumstance relevant” in note 4 to U.S.S.G. § 5G1.3.
We find no legal error in the district court’s recognizing
that another judge who knew about both the state and federal
crimes had exercised his judgment and had ordered that the
two sentences run consecutively, and deciding that the other
judge’s decision deserved at least some deference. The district
court had the authority and discretion to reach a different re-
sult. It was not compelled to do so, however, and could choose
to respect and leave essentially intact the decision of the state
court. That result was not unreasonable, given the nature and
circumstances of both sets of violent crimes and the history
and characteristics of the offender, who qualified for criminal
14 No. 20-1265
history categories V and VI at the times of his original and
second federal sentences, respectively. 1
In arguing that his new federal sentence is substantively
unreasonable, Mzembe emphasizes that the combined state
and federal sentences clearly amount to a de facto sentence of
life in prison. See United States v. Wurzinger, 467 F.3d 649, 652
(7th Cir. 2006) (noting “worthy tradition that death in prison
is not to be ordered lightly, and the probability that a convict
will not live out his sentence should certainly give pause to a
sentencing court,” but affirming within-guideline sentence
longer than defendant’s life expectancy).
We recognize that making these sentences consecutive
amounts to a de facto life sentence, as did Judge Miller and
surely the state court judge as well. 2 That fact does not per-
suade us that the new and consecutive federal sentence was
substantively unreasonable. Mzembe presented some new
evidence in mitigation, which the district court heard and
considered. At the same time, the serious and violent
1Mzembe also cites United States v. Lacy, 813 F.3d 654 (7th Cir. 2016),
where the federal prosecutor had recommended that the federal sentence
run consecutively to any sentence in a then-pending state prosecution “as
a courtesy” to the state prosecutor. We said in dicta that extending such a
“courtesy” to a state prosecutor would not be proper sentencing consid-
eration. Id. at 658. We agree with that point but do not find comparable
the district court’s recognition in this case that another judge had already
looked at Mzembe’s full criminal history and had concluded that consec-
utive sentences were appropriate for the unrelated crimes, even where
they would amount to a de facto life sentence.
2The state sentence alone might also be deemed a de facto life sen-
tence, depending on when in 2014 Mzembe committed the home-invasion
offenses. See Ind. Code § 35-50-6-3.1 (chapter on good-time credits
amended as applied to crimes committed after June 30, 2014).
No. 20-1265 15
character of Mzembe’s federal crimes called for a life sentence
under the federal Sentencing Guidelines, without taking into
account his state crimes and sentence. We also recognize, as
Judge Miller did, that the concurrent sentences that Mzembe
sought would have reduced his federal sentence in effect to
zero. There would have been no marginal punishment for the
serious federal crimes, as opposed to the sentence the district
judge thought was appropriate in the first place. The choice
was not binary and all-or-nothing—sentences may also be
partially concurrent and partially consecutive—but where the
crimes were so serious, so violent, and completely unrelated,
it was not unreasonable for the judge to reject that proposed
sentence.
Especially when the independent, violent, and brutal
home invasion is added into the mix, we do not find the re-
sulting de facto life sentence was an abuse of the district
court’s discretion. Sentencing convicted offenders is generally
recognized as the most difficult part of the job of a United
States District Judge. Judge Miller is a veteran judge who is
thoroughly familiar with those difficulties. At every stage of
this case, he exercised his judgment carefully and thought-
fully. We find no reversible error.
The judgment of the district court is AFFIRMED.