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United States v. Baskin

United States Court of Appeals, Eighth Circuit

January 8, 2018

United States of America Plaintiff- Appellee
v.
Christopher Baskin Defendant-Appellant

          Submitted: November 17, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

          BENTON, Circuit Judge.

         Clarence Christopher Baskin appeals his consecutive sentences for witness tampering and drug trafficking. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         A jury convicted Baskin of witness tampering. He later pled guilty to related drug trafficking, agreeing to a sentence of 120 months. The 11(c)(1)(C) plea agreement said: "The parties have no agreement regarding whether the sentence in [the drug-trafficking case] will be concurrent with or consecutive to the sentence in [the witness-tampering case]." He "knowingly and expressly waive[d] any and all rights to appeal the . . . conviction and sentence" in both cases except, as applicable, whether the two sentences could run consecutively.

         In a consolidated hearing, the district court[1] sentenced Baskin to 120 months for drug trafficking, and a consecutive 48 months for witness tampering. He appeals the sentences, arguing (1) they should run concurrently, and (2) the government violated the plea agreement by advocating otherwise.

         I.

         Baskin believes the district court erred in imposing consecutive sentences. This court reviews the "decision to impose a consecutive or concurrent sentence for reasonableness." United States v. Bryant, 606 F.3d 912, 920 (8th Cir. 2010). "A review for reasonableness is 'akin' to the 'abuse-of-discretion' standard." Id., quoting United States v. Mathis, 451 F.3d 939, 941 (8th Cir. 2006).

         U.S.S.G. § 5G1.2 "specifies the procedure for determining the specific sentence to be formally imposed" where, as here, a defendant is sentenced on "multiple counts of conviction . . . contained in different indictments . . . for which sentences are to be imposed at the same time or in a consolidated proceeding." U.S.S.G. § 5G1.2 cmt. n.1. It says:

(b) For all counts not covered by subsection (a), the court shall determine the total punishment and shall impose that total punishment on each such count, except to the extent otherwise required by law.
(c) If the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.
(d) If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on ...

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