United States v. Laura P. Lassiter , 929 F.2d 267 ( 1991 )

JONES, Circuit Judge,

concurring.

While I fully concur in the majority’s disposition of this case, I write separately to clarify the majority’s admonition that a sentencing court must take account of “any sentence imposed by another court” for the purposes of determining the reasonableness of or necessity for a departure from the Sentencing Guidelines. In this case, the defendant wrote a letter to the district court confessing in full to the crimes she was charged with in the state criminal proceeding. Thus, the court was fully aware that Lassiter would receive a state sentence for her drug activity on bail independent of any adjustment it made to her federal sentence by way of an upward departure. As a result of the district court’s failure to take account of Lassiter’s likely state sentence when departing, Lassi-ter received approximately 60 additional months of federal time for her drug activity while on bond. The state court subsequently sentenced Lassiter to seven years for the same criminal activity. The excessive severity of the resulting sentencing is obvious.

In my view, it is the majority’s intention to reduce the likelihood of such excessive sentencing by requiring district courts to consider sentences imposed, or likely to be imposed by other courts, when deciding on the degree of or the need for an upward departure. In this case, since the trial court was essentially certain that a state sentence would be imposed, it might have been more prudent for the court to delay sentencing until after the state proceeding. I note that district courts should exercise their discretion in deciding whether to postpone federal sentencing with an eye to whether the postponement will result in inadvertently delaying the defendant’s right to appeal. However, where as here, a delay in federal sentencing might have eliminated the necessity for this appeal, a district court should consider this option before moving down the path toward a potentially unreasonable upward departure.