United States v. Robert Maday , 799 F.3d 776 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3711
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT MADAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08 CR 1075-1 — Robert W. Gettleman, Judge.
_______________________
No. 14-2154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT MADAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 847-1 — Rubén Castillo, Chief Judge.
2 Nos. 13-3711, 14-2154
____________________
SUBMITTED JULY 22, 2015— DECIDED AUGUST 24, 2015
____________________
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
POSNER, Circuit Judge. Robert Maday was convicted, in
two separate proceedings before different judges (Chief
Judge Castillo and Judge Gettleman) of the same federal dis-
trict court (the Northern District of Illinois), of federal crimes
closely related in both time and type. He was sentenced sep-
arately by the two judges, which has created complications
that are the gist of his two appeals to us. Separate lawyers
were appointed to represent Maday in these two appeals
and each has moved to withdraw from the case on the
ground that the appeals are frivolous. See Anders v. Califor-
nia, 386 U.S. 738 (1967). One of the appeals, as we’ll see—the
appeal from Judge Castillo’s sentence—is frivolous, and the
motion of Maday’s lawyer in that appeal to withdraw is
therefore granted. The other appeal is not frivolous, and the
motion of Maday‘s lawyer in that appeal to withdraw is
therefore denied.
The case is complicated; we’ll simplify where we can, for
example by expressing all sentences in years (with round-
ing), though some were in months.
The first federal proceeding was before Judge Gettleman.
Maday pleaded guilty in August 2009 to three bank rob-
beries (all committed between October and December of
2008). While awaiting sentencing he was in the process of
being transported to state court by state officers to face sen-
Nos. 13-3711, 14-2154 3
tencing for robberies (none of them bank robberies) commit-
ted in October 2008 to which he had pleaded guilty in state
court, when he escaped from the vehicle in which he was be-
ing transported. While at large following his escape he
committed a rich mixture of federal and state offenses, in-
cluding bank robbery, escape from federal custody, carjack-
ing, and using or carrying a gun in connection with the other
offenses. He was prosecuted in state court for the carjackings
and in federal court (before Chief Judge Castillo) for the fed-
eral crimes.
Regarding the federal prosecution for escape—which
may seem anomalous since Maday escaped from state rather
than federal custody—we note that the state had custody of
him at the time of his escape only by virtue of a writ of ha-
beas corpus ad prosequendum requesting that he be trans-
ferred briefly from federal to state court so that the state
court could sentence him. There was thus enough federal
interest in his continuing in custody to justify charging him
with escaping from federal custody even though the actual
custodians from whom he escaped were state employees.
See United States v. Evans, 159 F.3d 908, 911–13 (4th Cir.
1998).
In October 2009, a month after he was returned to custo-
dy, a state judge sentenced him to 13 years’ imprisonment
for the October 2008 robberies. In April 2010 he pleaded
guilty in state court to the carjackings and was given a con-
secutive prison sentence of 30 years. In November 2013
Judge Gettleman sentenced him to 30 years in prison for the
bank robberies to which he had pleaded guilty in his case
before that judge. The sentence was approximately in the
midpoint of the guidelines range for Maday’s crimes. The
4 Nos. 13-3711, 14-2154
judge made the sentence consecutive to Maday’s 30-year
state sentence but concurrent with his 13-year state sentence.
Judge Gettleman’s decision to make the sentence he imposed
consecutive to his 30-year state sentence is not as ominous as
one might think. Illinois law grants day-for-day credit
against an Illinois prison sentence; so Maday (if he behaves
himself in prison) will be eligible to complete his state sen-
tence after 21½ years. See 730 ILCS 5/3-6-3(a)(2.1). Moreover,
though he’s been in federal custody since 2008, the Illinois
Department of Corrections deems his state sentence to have
begun then, which will make him eligible for release from
state custody after fewer than 15 years (21½–7 = 14½) despite
his nominal state sentence of 43 years. See 730 ILCS 5/5-4.5-
100(b).
When Judge Gettleman sentenced Maday, a trial in the
case presided over by Judge Castillo had already ended with
Maday’s conviction of bank robbery, of escape from federal
custody, and of the use of a gun both in the robbery and in
the escape. But Judge Castillo had not yet imposed a sen-
tence; he did so in May 2014. The conviction for possessing a
gun after three convictions for violent felonies made Maday
an “armed career criminal” subject therefore to a statutory
minimum term of imprisonment of 15 years. 18 U.S.C.
§§ 922(g), 924(e)(1). But his two convictions for using or car-
rying a gun during a crime of violence (the escape and bank
robbery) turned out to be the real drivers of the sentence im-
posed by Judge Castillo. The first conviction, which was
based on the jury’s finding that Maday had brandished the
weapon during the escape, carried a mandatory consecutive
sentence of 7 years, § 924(c)(1)(A)(ii), while the second con-
viction, based on similar conduct during the robbery, carried
a mandatory consecutive sentence of 25 years.
Nos. 13-3711, 14-2154 5
§ 924(c)(1)(C)(i). Maday’s statutory minimum thus totaled
15 + 7 + 25 = 47 years.
The judge decided that the entire sentence should be
concurrent with Maday’s state sentence, and that the 15-year
armed career criminal component of the federal sentence
should be concurrent with the other counts and with Judge
Gettleman’s 30-year sentence. The result was an aggregate
62-year federal sentence (32 = [25 + 7] + 30), though should
Maday receive maximum good-time credits in prison the
sentence would drop to about 54 years. See Barber v. Thomas,
560 U.S. 474, 477–79 (2010). We say “maximum good-time
credits” because it is unclear at this juncture during what pe-
riods of his incarceration he’ll be able to earn good-time
credits toward his federal sentence, given that he will be
spending some time in federal and some time in state pris-
ons.
Maday has served 2 years of his federal sentence. That
leaves him, even with maximum good-time credits, with at
least 52 years yet to serve, and as he is now 45 years old he
will be 97 (should he live that long) when released, unless
given early release under the Bureau of Prisons Compas-
sionate Release Program. But early release is very rarely
granted even to prisoners who become terminally ill. Wil-
liam Berry, “Extraordinary and Compelling: A Re-
examination of the Justifications for Compassionate Re-
lease,” 68 Maryland Law Review 850, 862–68 (2010); Casey N.
Ferri, Note, “A Stuck Safety Valve: The Inadequacy of Com-
passionate Release for Elderly Inmates,” 43 Stetson Law Re-
view 197, 219–25 (2013). Only 142 requests were granted be-
tween 2006 and 2011. See Office of the Inspector General,
U.S. Dep’t of Justice, “The Federal Bureau of Prisons’ Com-
6 Nos. 13-3711, 14-2154
passionate Release Program, Evaluation and Inspections Re-
port I-2013-006” 34 (April 2013).
Judge Castillo committed two sentencing errors. One was
making Maday’s sentence run concurrently with his state
sentence. In doing so the judge overlooked 18 U.S.C.
§ 924(c), which “forbids a federal district court to direct that
a term of imprisonment under that statute run concurrently
with any other term of imprisonment, whether state or fed-
eral.” United States v. Gonzales, 520 U.S. 1, 11 (1997). The sec-
ond mistake was to make the federal sentence that he was
imposing run concurrently with the 15-year minimum sen-
tence for being an armed career criminal. 18 U.S.C.
§ 924(c)(1)(D) provides that sentences for weapon brandish-
ing, imposed under section 924(c), shall not run concurrently
“with any other term of imprisonment imposed on the per-
son” (emphasis added), which includes Maday’s 15-year
sentence for being an armed career criminal. E.g., Abbott v.
United States, 562 U.S. 8, 13–15, 21–22 (2010); United States v.
Taylor, 581 Fed. App'x 559, 560–61 (7th Cir. 2014).
So the minimum federal prison term for the crimes for
which he was sentenced by Judge Castillo was 47 rather than
32 years. But we will not order Maday resentenced, because
the government has not filed a cross-appeal. See Greenlaw v.
United States, 554 U.S. 237, 243–54 (2008); United States v. Ri-
vera, 411 F.3d 864, 867 (7th Cir. 2005). So Judge Castillo’s 32-
year sentence will stand, will run concurrently with Maday’s
state sentence, but will run consecutively to his other federal
sentence, imposed by Judge Gettleman.
The remaining issue involves Judge Gettleman’s sentenc-
ing; we’ve concluded that the judge did not adequately justi-
fy his decision to sentence Maday to 30 years and make that
Nos. 13-3711, 14-2154 7
very long sentence consecutive to an equally long state sen-
tence (though a sentence that might be shortened considera-
bly as a result of Illinois’s generous day-for-day credit sys-
tem). Maday was, it is true, a career criminal, but one who
specialized in smallish bank robberies; he doesn’t appear to
have injured anyone in his crime sprees; and at age 43, when
sentenced by Judge Gettleman, he was rapidly approaching
the age at which most bank robbers are retired—it appears
that only about 11 percent of bank robbers are 40 or older.
FBI, U.S. Dep’t of Justice, Crime in the United States 310
(2002). (This figure is from the late 1990s, but we have found
no data suggesting that it has risen since.) The judge said he
was imposing the long sentence as a general deterrent (pour
encourager les autres, as the French put it). But he discussed in
detail only one of the other sentencing factors that federal
judges are required by 18 U.S.C. § 3553(a) to consider in de-
ciding on the length of a sentence—namely specific deter-
rence (deterring the defendant from committing further
crimes upon release). See 18 U.S.C. § 3553(a)(2)(C). But what
he said about it suggests that he didn’t think it would pro-
vide any justification for the sentence he was imposing. He
ruminated: “Will you pose [a danger to the community] all
of your life until you’re a very old man? Probably not.” Yet
he sentenced Maday to a prison term that will keep him in-
carcerated long past the time when he is likely to be a dan-
ger to the community.
Among the other factors that a sentencing judge is re-
quired to consider is the defendant’s “history and character-
istics.” 18 U.S.C. § 3553(a)(1). These include such things as a
difficult upbringing, which may counsel some lenience, as in
United States v. Thomas, 2015 WL 4399629, at *6–*7 (7th Cir.
July 20, 2015); and the defendant’s remorse (or lack thereof)
8 Nos. 13-3711, 14-2154
for his crime, as in United States v. McGill, 754 F.3d 452, 456–
57 (7th Cir. 2014). Judge Gettleman did say “I realize you
had a difficult childhood” and did point out the seriousness
of Maday’s crimes, but he didn’t mention the consecutive
mandatory minimums that Judge Castillo would have to
impose under 18 U.S.C. § 924(c)(1) and § 924(e)(1). (The
charges before Judge Gettleman carried no mandatory min-
imum.) Section 3553(a) requires that the sentence imposed
be no greater than necessary, see United States v. Pennington,
667 F.3d 953, 956–57 (7th Cir. 2102), and the judge’s incom-
plete discussion of the statutory sentencing factors per-
suades us that his sentence does not reflect adequate consid-
eration of this principle. Although as we’ve said Judge Cas-
tillo’s sentence shall stand because it has not been challenged
by the government (and no basis has been suggested for
Maday to challenge it as too severe), Judge Gettleman’s sen-
tence must be vacated because it is challenged by Maday
and was the result of a flawed sentencing procedure.
The abiding mystery of this brace of cases is why closely
related, indeed overlapping, federal crimes committed by
the same person at roughly the same time were tried by two
different judges. One judge should have been assigned both
cases and told to defer sentencing until guilt in each had
been determined, as that would be key to deciding on
Maday’s aggregate punishment. Among the confusions
caused by this split sentencing is that while Judge Gettle-
man’s sentence treats the 13-year state sentence as if it were
to be served before the 30-year federal sentence that he im-
posed, Judge Castillo’s sentence treats the two sentences as
having the opposite sequence.
Nos. 13-3711, 14-2154 9
Ordinarily, having concluded that an issue presented by
a criminal appeal is not frivolous, we would deny counsel’s
motion to withdraw and order the case briefed. Penson v.
Ohio, 488 U.S. 75, 81–83 (1988). But the constitutional right to
counsel requires only that an indigent’s appeal be resolved
“in a way that is related to the merit of that appeal,” Smith v.
Robbins, 528 U.S. 259, 272–78 (2000), and in this unique case
we can best do that by vacating the judgment in Judge Get-
tleman’s case and remanding.
Counsel in the appeal in that case informs us that Maday
does not wish to challenge his guilty plea, and so it is only
the sentence in Judge Gettleman’s case that requires correct-
ing. We therefore vacate the sentence imposed by Judge Get-
tleman (but not Judge Castillo) and remand Judge Gettle-
man’s case for resentencing. See 18 U.S.C. § 3742(f)(1).
REVERSED AND REMANDED