Olivia Covington for www.theindianalawyer.com

The 7^th Circuit Court of Appeals has vacated an Indiana man’s enhanced sentence for being a felon in possession of a firearm after finding the district court erred in not recognizing its discretion to require the man’s federal sentence to run concurrent to his unrelated state court sentence.

In United States of America v. Joshua Herman, 17-1423, Joshua Herman was visiting Jacob Kirk and Samantha Daniels when he asked Daniels if he could hold her gun, which was in her purse. Daniels agreed, but Herman pulled out his own gun then pointed both weapons at the couple.

Herman instructed Daniels and Kirk not to move, then fled the house with both guns. He shot at the couple as they began to chase him, then sped away in a getaway car. Herman was later arrested and pleaded guilty to being a felon in possession of a firearm.

During sentencing, the U.S. District Court for the Northern District of Indiana imposed a two-level enhancement on Herman for “restraining” Daniels and Kirk. The court then sentenced him to 10 years in prison, which was the bottom of his guidelines range and the statutory maximum for his crime.

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Meanwhile, Herman was also awaiting sentencing on an unrelated misdemeanor theft charge in state court, which carries a one-year sentencing maximum. Herman asked the district court to run his federal sentence concurrently to his impending Indiana sentence, but the district judge told him it had no control over what the state court’s sentencing decision.

On appeal to the 7^th Circuit Court of Appeals, Herman argued the district judge “failed to recognize (his) own discretion” by not requiring the federal and state sentences to run concurrently. The 7^th Circuit panel agreed, with Chief Judge Diane Wood writing that though the district court did not have to exercise its discretion, its failure to recognize that discretion was a mistake of law.

“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,” Wood wrote. “We do not know why it can be so sure of that. It may be correct as a statistical matter, but we are no in the habit of evaluating federal district courts’ sentencing decisions based on probabilistic assumptions about what a state court – over which we have no control — will or will not do.”

Thus, the 7^th Circuit panel vacated Herman’s sentence and remanded his case for consideration of the second argument he raised on appeal, but that the appellate panel did not reach — whether the physical restraint enhancement applies to him.