United States v. Hopkins, John

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2006
Decided April 12, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-3322
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 02 CR 1272-1
JOHN HOPKINS,
Defendant-Appellant. George W. Lindberg,
Judge
ORDER
John Hopkins pleaded guilty to one count of bank robbery, see 18 U.S.C.
§ 2113(a), and was sentenced to 71 months’ imprisonment to run consecutively to a
seven-year term of imprisonment on unrelated, state robbery charges, followed by
three years’ supervised release to run consecutively to his federal term of
imprisonment. On appeal Hopkins challenges the district court’s decision to impose
his federal sentence consecutive to his undischarged state sentence. Because the
district judge exercised his discretion when he declined Hopkins’s request for a
partially concurrent sentence, we affirm.
Hopkins robbed the Guaranty Bank in Matteson, Illinois, in December of
2002 by passing a demand note to the bank teller and then threatening to “shoot” or
“kill” her if she did not comply. Hopkins was identified a few days later and
No. 04-3322 Page 2
charged by complaint in the Northern District of Illinois, but he was not
immediately apprehended. Approximately three months later, Hopkins and an
accomplice robbed two retail stores in Lake County, Indiana.1 Hopkins was
arrested the next day in Lake County in connection with those robberies. Lake
County prosecutors charged him with two counts of robbery, and in September 2003
he pleaded guilty to one count of robbery and was sentenced to seven years’
imprisonment. In December 2003, while serving that time, Hopkins filed a pro se
motion in federal court demanding a speedy trial on the bank robbery charge. In
February 2004, a federal grand jury in the Northern District of Illinois charged
Hopkins with robbery of the federally insured Guaranty Bank. Soon after, he was
transported to that district, and in May 2004 he pleaded guilty to bank robbery in
violation of 18 U.S.C. § 2113(a).
Prior to sentencing Hopkins objected to the guidelines calculations contained
in the presentence investigation report and to the recommended sentence. In
calculating Hopkins’s offense level, the probation officer assessed a three-level
increase to Hopkins’s base offense level of 22 because a bank teller had said that
Hopkins was armed during the robbery, see U.S.S.G. § 2B3.1(b)(2)(E), which
resulted in a total offense level after reduction for acceptance of responsibility of 22.
Hopkins objected that he never really had a firearm but conceded that by advising
the teller that he was armed he could be assessed a two-level increase under
§ 2B3.1(b)(2)(F). The sentencing judge found that Hopkins did not have a firearm
during the robbery but only made a “threat of death,” compare § 2B3.1(b)(2)(E) with
§ 2B3.1(b)(2)(F), and corrected the presentence investigation report to reflect a total
offense level of 21 and criminal history category of IV. A guidelines imprisonment
range of 57 to 71 months resulted.
Hopkins also requested that the judge impose his federal sentence to run
partially concurrent to his undischarged state sentence. See U.S.S.G. § 5G1.3(c).
He argued that, if his federal sentence ran consecutively to his seven-year state
term of imprisonment, he would serve “an appreciably greater period” of
incarceration than he would if the three robberies had been joined for prosecution in
the same jurisdiction. He also contended that, because the federal government
knew about his involvement in the Illinois bank robbery at the time of his Indiana
arrest but waited 17 months to petition for federal custody, his federal prison
sentence should be crafted to reflect the time already served. The district court
rejected Hopkins’s arguments. After review of Hopkins’s record, the court noted
that Hopkins’s criminal history category seriously underrepresented his propensity
toward criminal conduct and imposed a 71-month term of imprisonment, at the top
1
Although the record discloses that either Hopkins and/or his accomplice
were armed, Indiana charged Hopkins with only robbery.
No. 04-3322 Page 3
of the guidelines range; the court made the term fully consecutive to the state
sentence.
On appeal Hopkins contends that the district court erred when it declined to
accede to his wishes that his federal sentence run partially concurrent to his state
sentence. Although his position is difficult to discern from his brief, he seems to
press two overlapping theories.
Hopkins first argues that when determining whether to run his federal
sentence partially concurrent to his undischarged state sentence the district court
was obligated to consider the guidelines range that would have applied if all three
robberies had been joined for prosecution in federal court. The court was then
required, according to Hopkins, to impose a sentence that would result in his
serving an overall term of imprisonment for both the federal and state convictions
no greater than the guidelines maximum for the hypothetically grouped offenses.
Somehow he contends that any combined state and federal term of imprisonment in
excess of the guidelines range for the hypothetically grouped offenses results in an
unauthorized “upward departure.” This argument, which was the focus of his oral
argument, conflates the grouping provisions of the guidelines, see U.S.S.G. §§ 3D1.2
to 3D1.5, with the provision applicable to sentencing a defendant already subject to
another, undischarged term of imprisonment, see id. § 5G1.3(c).
Hopkins’s second theory is the basic § 5G1.3(c) argument he raised in the
trial court: the district court should have run his federal sentence partially
concurrent to his state sentence “to account for time he already served against the
state sentence.” As a result of the district court’s denial of his request for a
partially concurrent sentence, Hopkins contends that he now must serve a greater
total period of incarceration than he would have if both prosecutions had been
combined in a single federal proceeding.
We review the district court’s interpretation of the sentencing guidelines
de novo, United States v. O’Hara, 301 F.3d 563, 571 (7th Cir. 2002), and its decision
to impose a consecutive sentence for abuse of discretion, id.; United States v.
Plantan, 102 F.3d 953, 956 (7th Cir. 1996).
The district court was not required to consider a hypothetical calculation of
Hopkins’s sentence under §§ 3D1.2 to 3D1.5, nor was it required to impose a prison
term that approximates the total combined sentence he would have received had he
been prosecuted in federal court for one bank robbery and two retail robberies at
the same time. The government charged Hopkins only with one count of bank
robbery. The grouping provisions of the guidelines never apply unless there are
“multiple counts” of conviction in the federal prosecution. U.S.S.G. § 3D1.1,
introductory cmt. (2003); see U.S.S.G. § 1A1.1 cmt. n.1; United States v. Dvorak, 115
No. 04-3322 Page 4
F.3d 1339, 1343 (7th Cir. 1997). Indeed, even if the robberies of the bank in Illinois
and the two stores in Indiana had been charged together in one federal prosecution,
Hopkins would not have benefitted from the grouping rules because § 3D1.2
specifically excludes grouping offenses like robbery that are sentenced under
§ 2B3.1. See U.S.S.G. § 3D1.2(d). Moreover, “the district court [was] not required to
consider, much less impose, a sentence on a [prisoner] incarcerated for a prior crime
which approximates the total combined sentence [he] would have received had he
been sentenced for the current and prior offense at the same time.” Dvorak, 115
F.3d at 1344 (citing United States v. Greer, 91 F.3d 996, 1001 (7th Cir. 1996)).
Similarly, the district court was not required to reduce Hopkins’s sentence
much less apply a partially concurrent sentence to account for the time Hopkins
served in state custody prior to the federal prosecution. Two circuits have
concluded that a sentence below the guidelines range might be appropriate when
the government’s delay in prosecution was in bad faith or unreasonably long such
that it resulted in a “missed opportunity” to request concurrent sentencing. See
United States v. Los Santos, 283 F.3d 422, 428-29 (2d Cir. 2002); United States v.
Saldana, 109 F.3d 100, 104 (1st Cir. 1997). We need not consider this question
because Hopkins certainly had ample opportunity to request concurrent sentencing
and did so. He also never alleged that the government acted in bad faith. Instead,
he merely complains that the district court denied his request for a partially
concurrent sentence, but the court would not have been compelled to grant that
request even if the prosecution for bank robbery had commenced sooner. See 18
U.S.C. § 3584(a); U.S.S.G. § 5G1.3(c).
As Hopkins acknowledged in his plea agreement, the only section of the
guidelines relevant to the district court’s decision to run his federal sentence
consecutively to his state sentence is § 5G1.3(c). Section 5G1.3(c) gave the district
court broad discretion to order Hopkins to serve his federal sentence “concurrently,
partially concurrently, or consecutively to [a] prior undischarged term of
imprisonment” so long as the sentence “achieve[s] a reasonable punishment for the
instant offense.” See U.S.S.G. § 5G1.3(c) (emphasis added). Because Hopkins’s
sentence was within the properly calculated guidelines range, it is presumptively
reasonable. See United States v. Lopez, 430 F.3d 854, 856-57 (7th Cir. 2005); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). The district court was not
required to accept Hopkins’s argument for imposing a discretionary sentence below
the guidelines range, see United States v. Gipson, 425 F.3d 335, 337 (7th Cir. 2005),
nor was it required to run Hopkins’s federal sentence concurrently to his
undischarged state sentence, see O’Hara, 301 F.3d at 571. Thus the district court
did not abuse its discretion when it declined to run Hopkins’s federal sentence
concurrently to his undischarged state sentence.
AFFIRMED.