United States v. Joshua Herman

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1423
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA HERMAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 16-CR-61 — Rudy Lozano, Judge.
____________________
ARGUED OCTOBER 30, 2017 — DECIDED MARCH 8, 2018
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
WOOD, Chief Judge. This case involves the coordination of
sentencing between federal and state courts. The underlying
facts are straightforward. On May 4, 2016, Joshua Herman, a
member of the Latin Dragons gang, visited the home of Jacob
Kirk and Samantha Daniels. At some point during his visit,
Herman asked if he could hold Daniels’s handgun, which he
noticed was sticking out of a bright pink case in her purse. As
2 No. 17-1423
soon as Daniels obliged, Herman pulled out a second gun,
pointed both weapons at Daniels and Kirk, ordered them not
to move, and then fled the house with the guns. Daniels and
Kirk chased him outside, whereupon Herman turned around
and shot at them. He then hopped into a getaway car and
sped off.
Herman was arrested for his crime and pleaded guilty to
being a felon in possession of a firearm. See 18 U.S.C. § 922(g).
Among other sentencing adjustments, the district court im-
posed a two-level enhancement in his offense level for the use
of physical restraint, U.S.S.G. § 2B3.1(b)(4)(B), on the theory
that Herman “restrained” the victims when he pointed the
guns at them and ordered them to stay put. Herman was ul-
timately sentenced to 120 months in prison, which was both
the bottom of his guidelines range and the statutory maxi-
mum.
At the time of his federal sentencing, Herman was (and
still is) awaiting sentencing on an unrelated state charge for
misdemeanor theft in Indiana. That charge carries a maxi-
mum penalty of one year in prison. Ind. Code § 35-50-3-2.
Herman asked the district court to order that his federal sen-
tence run concurrently with his state sentence. The court re-
sponded that it did not object to this request but said it could
not “control what the [Indiana state court] will do.”
On appeal, Herman raises two challenges to his sentence.
First, he argues that the district court failed to recognize its
own discretion when it said that it could not require Her-
man’s federal sentence to run concurrently with his state sen-
tence. Second, he argues—for the first time—that pointing a
gun at someone and telling her not to move does not count as
“physically restraining” her under U.S.S.G. § 2B3.1(b)(4)(B).
No. 17-1423 3
Because we conclude that Herman is entitled to be resen-
tenced based on his first argument, we need not consider his
second.
Federal district courts are empowered to order that a fed-
eral sentence run concurrently with a state sentence not yet
imposed. Setser v. United States, 566 U.S. 231, 234–35 (2012).
Such an order is binding on the Bureau of Prisons, which im-
plements that directive by designating the state prison as the
place of imprisonment for the federal crime for whatever time
is necessary in order to carry out the sentencing judge’s order.
A district court need not exercise its discretion under Setser,
but its failure to acknowledge that the discretion exists is a
mistake of law, which we evaluate de novo. United States v.
Lewis, 842 F.3d 467, 474 (7th Cir. 2016). Remand is appropriate
if there is error, and it is not harmless. Id.
Here, the district court overlooked the fact that it pos-
sessed the power to impose concurrent sentences. Its written
judgment provides only that the court “does not object for
[the] state case sentence … to run concurrent to the time im-
posed by this court.” The district court also remarked that it
“can’t control what the state will do.” Herman argues—and
the government concedes—that these comments show that
the district court failed to acknowledge its ability to order the
Bureau of Prisons to execute a concurrent sentence. We, too,
read them this way.
The government nonetheless argues that the district
court’s error was harmless because “there is no reasonable
probability” that the State of Indiana will pursue a charge on
a minor theft case while Herman is serving out his sentence
in federal custody. We do not know why it can be so sure of
that. It may be correct as a statistical matter, but we are not in
4 No. 17-1423
the habit of evaluating federal district courts’ sentencing de-
cisions based on probabilistic assumptions about what a state
court—over which we have no control—will or will not do.
The government’s argument also ignores the fact that the
pending state sentence may negatively affect Herman’s pris-
oner classification and designation, as well as the calculation
of his release date. Particularly, the latter impact is difficult to
brush off as inconsequential.
For these reasons, the sentence imposed by the district
court is VACATED and REMANDED for further proceedings con-
sistent with this opinion. On remand, the district court should
consider Herman’s argument that the physical restraint en-
hancement does not apply to him, as well as any other argu-
ments not resolved in this appeal.