United States v. Lonnie Lillard ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 18-30106
18-30114
Plaintiff-Appellee, 20-30110
v. D.C. Nos.
2:16-cr-00007-RSM
LONNIE EUGENE LILLARD, 2:16-cr-00007-RSM-1
2:15-cr-00270-RSM-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Argued and Submitted June 9, 2022
Portland, Oregon
Filed January 17, 2023
Before: Mary M. Schroeder and Jennifer Sung, Circuit
Judges, and John Antoon II, * District Judge.
Opinion by Judge Sung
*
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2 UNITED STATES V. LILLARD
SUMMARY **
Criminal Law
In Lonnie Eugene Lillard’s appeals arising from (1) a
case in which Lillard pleaded guilty to conspiracy to commit
bank fraud and (2) a case in which the district court revoked
the supervised release that Lillard was serving for a prior
federal conviction, the panel affirmed the district court in
part, vacated the sentence imposed for the violation of
supervised release, and remanded for re-sentencing on the
supervised release violation.
Lillard was serving a sentence of supervised release for
a 2006 federal conviction from Nevada when he was arrested
and indicted on the conspiracy count. Soon after Lillard’s
arrest, the government obtained an order permitting it to
seize the funds in his inmate trust account and apply them to
a restitution obligation for a 1998 federal conviction from
Washington. Lillard pleaded guilty in the conspiracy case,
admitted a violation of supervised release in the Nevada
case, and was sentenced in both cases.
Lillard claimed that the government’s seizure of his
inmate funds pursuant to the restitution order from his 1998
conviction violated (1) his Sixth Amendment right to
counsel of choice by preventing him from hiring a lawyer,
and (2) his Fifth Amendment due process right to a court-
appointed expert and investigative assistance.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LILLARD 3
The panel held that the government does not violate a
defendant’s Sixth Amendment right to counsel of choice
when it seizes untainted funds pursuant to a valid restitution
order and judgment from a prior case. The panel explained
that under 18 U.S.C. § 3613(c), the restitution order issued
pursuant to the Mandatory Victims Restitution Act gave the
government a lien “on all property and rights to property of
the person” against whom judgment is entered until the
liability is satisfied or otherwise terminated, and the fact that
Lillard’s funds were untainted did not diminish the strength
of the government’s property interest. Because the
restitution order and the § 3613(c) lien gave the government
a substantial property interest in the funds in Lillard’s inmate
account, the government’s seizure of those funds to satisfy
Lillard’s restitution obligation did not violate his Sixth
Amendment right to counsel of choice.
The panel held that Lillard did not establish that the
seizure of funds violated his Fifth Amendment due process
rights, where Lillard did not demonstrate either that he
needed the right to court-appointed expert and investigative
assistance, or that he requested but was denied the
appointment of any assistance.
It was undisputed on appeal that the 36-month sentence
the district court imposed for Lillard’s supervised release
violation is illegal because it exceeds the applicable statutory
maximum. It was also undisputed that Lillard did not object
to the illegal sentence in the district court and that,
consequently, this court reviews for plain error. The
government conceded that the imposition of an illegal
sentence was an error that was plain, but contended that the
error did not affect Lillard’s substantial rights because his
36-month illegal sentence is shorter than and concurrent with
his 196-month valid sentence in the conspiracy case. The
4 UNITED STATES V. LILLARD
panel held that an illegally excessive sentence violates a
defendant’s substantial rights even if it runs concurrent with
an equal or longer, valid sentence. In so holding, the panel
noted the possibility of collateral consequences. The panel
also concluded that the illegally excessive sentence affects
the fairness, integrity, or public reputation of judicial
proceedings. The panel therefore vacated the 36-month
sentence imposed for the violation of supervised release and
remanded for re-sentencing in that case.
The panel addressed and rejected Lillard’s other
arguments in a concurrently filed memorandum disposition.
COUNSEL
Carlton F. Gunn (argued), Law Office of Carlton F. Gunn,
Pasadena, California, for Defendant-Appellant.
Michael S. Morgan (argued), Rebecca Shapiro Cohen, and
Michelle Jensen, Assistant United States Attorneys; Erin
Becker; Teal Luthy Miller; Charlene Koski; Tessa M.
Gorman, Acting United States Attorney; Office of the
United States Attorney, Seattle, Washington; for Plaintiff-
Appellee.
UNITED STATES V. LILLARD 5
OPINION
SUNG, Circuit Judge:
Defendant-Appellant Lonnie Eugene Lillard was serving
a sentence of supervised release for a prior federal
conviction from Nevada when he was arrested and indicted
on one count of Conspiracy to Commit Bank Fraud, 18
U.S.C. §§ 1344(2), 1349. Soon after Lillard’s arrest, the
government obtained an order permitting it to seize the funds
in his inmate trust account and apply them to a restitution
obligation for a prior federal conviction from Washington.
Lillard pleaded guilty in the conspiracy case, admitted a
violation of his supervised release in his Nevada case, and
was sentenced in both cases.
Lillard urges that the seizure of his inmate funds violated
his Sixth Amendment right to counsel of choice and his Fifth
Amendment due process right. He also contends that the
district court’s imposition of an undisputedly illegal
sentence for his supervised release violation is reversible
error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We conclude that the government’s
seizure of Lillard’s inmate funds did not violate his right to
either counsel of choice or due process. We also conclude
that the district court’s imposition of an illegally excessive
sentence for Lillard’s supervised release violation was plain
error that requires vacatur of that sentence and remand for
re-sentencing. 1
1
We address and reject Lillard’s other arguments in a concurrently filed
memorandum disposition, United States v. Lillard, No. 18-30106, --- F.
App’x ---- (9th Cir. 2022).
6 UNITED STATES V. LILLARD
FACTS AND PROCEDURAL BACKGROUND
In 2016, Lillard was arrested and indicted in the Western
District of Washington for conspiracy to commit bank fraud.
At the time of his arrest, Lillard was serving a term of
supervised release for a 2006 conviction in the District of
Nevada. He also had an outstanding restitution obligation of
more than $79,000 from a 1998 conviction in the Western
District of Washington. 2 Soon after his arrest, the
government encumbered his inmate trust account, which
contained about $6,500. The government then moved for,
and obtained over Lillard’s objection, an order directing that
those funds be applied towards his restitution obligation.
Lillard pleaded guilty to the conspiracy charge without a
plea agreement. At that time, he also admitted having
violated the terms of his supervised release in his District of
Nevada case. The district court sentenced Lillard to 196
months of incarceration, to be followed by 5 years of
supervised release, in the conspiracy case. The court also
sentenced Lillard to 36 months of incarceration for the
supervised release violation, to run concurrent with the
sentence in the conspiracy case.
DISCUSSION
I. Seizure of Funds
Lillard claims that the government’s seizure of his
inmate funds pursuant to the restitution order from his 1998
conviction violated his constitutional rights in the present
case, in two ways: First, he claims the seizure violated his
Sixth Amendment right to counsel of choice by preventing
2
Lillard’s unopposed motion to take judicial notice of documents in this
case and related cases (Docket Entry 69) is granted.
UNITED STATES V. LILLARD 7
him from hiring a lawyer. Second, he claims the seizure
violated his Fifth Amendment due process right to a court-
appointed expert and investigative assistance. We address
each claim in turn. 3
A. Sixth Amendment
The Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” That guarantee
includes, among other things, the right to “be represented by
an otherwise qualified attorney whom the defendant can
afford to hire, or who is willing to represent the defendant
even though he is without funds,” which we commonly refer
to as the right to counsel of choice. 4 Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 624 (1989).
In this case, the government seized Lillard’s inmate
funds to satisfy his post-conviction restitution obligation
3
The government contends these claims are unreviewable because
Lillard waived them twice over—through an unconditional guilty plea,
and by intentionally withholding them from the district court. See United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (explaining that
waived rights are unreviewable). Lillard contends that the claims at issue
survive a guilty plea, and that he preserved the issues by opposing the
government’s motion to seize the funds. We do not decide whether
Lillard waived these claims, because even assuming he preserved them,
he does not prevail on the merits.
4
The government contends that, under United States v. Stites, 56 F.3d
1020, 1024 (9th Cir. 1995), Lillard is required to identify a private lawyer
who was willing to represent him and to prove that the seizure of his
inmate funds prevented him from hiring that lawyer. The government
further urges that Lillard has failed to make that showing. Lillard
disputes the government’s reading of Stites. Because the success of
Lillard’s counsel-of-choice claim does not turn on this issue, we need not
decide it and decline to do so.
8 UNITED STATES V. LILLARD
from a prior case in which judgment had been entered.
Lillard does not dispute the validity of the restitution order
or the judgment in the prior case. Rather, citing Luis v.
United States, 578 U.S. 5 (2016), Lillard contends that the
seizure of funds violated his Sixth Amendment right to
counsel of choice because the funds were “untainted,”
meaning that the funds were not traceable to his alleged
crime.
In Luis, the Court held that the pretrial restraint of the
defendant’s untainted assets violated her Sixth Amendment
right, but there, the pretrial restraint order had not been
issued pursuant to a valid, existing restitution order. 578 U.S.
at 23. Thus, Luis did not decide the issue presented here:
whether the government violates a defendant’s Sixth
Amendment right to counsel of choice when it seizes
untainted funds pursuant to a valid restitution order and
judgment from a prior case. We hold that it does not.
The Court’s discussion of the scope of the Sixth
Amendment right to counsel in Caplin & Drysdale
establishes the applicable principles. On the one hand, the
Sixth Amendment guarantees a defendant in a criminal case
“the right to be represented by an otherwise qualified
attorney whom [they] can afford to hire.” 491 U.S. at 624.
On the other hand, a defendant has no constitutional right to
representation by a particular attorney whom they cannot
afford to hire. Id. Further, “[a] defendant has no Sixth
Amendment right to spend another person’s money for
services rendered by an attorney, even if those funds are the
only way” that the defendant will be able to retain the
attorney of their choice. Id. at 626.
Applying those principles, the Court concluded in
Caplin & Drysdale that the Sixth Amendment did not give
UNITED STATES V. LILLARD 9
the defendant the right to use forfeitable assets to pay
counsel because, by operation of the forfeiture statute, 21
U.S.C. § 853, those assets belonged to the government, not
the defendant, even though they remained in the defendant’s
possession. Id. at 627, 632. In so holding, the Court rejected
the argument that the defendant’s interest in the forfeitable
assets outweighed the government’s. Id. at 629. Because the
forfeiture statute authorized the government to use
forfeitable assets to fund law enforcement activities and
return property to crime victims, the government had a
“strong . . . interest in obtaining full recovery of all
forfeitable assets” that outweighed “any Sixth Amendment
interest” in permitting defendants “to use assets adjudged
forfeitable to pay for their defense.” Id. at 631.
In United States v. Monsanto, 491 U.S. 600 (1989), a
case decided the same day as Caplin & Drysdale, the issue
was whether the government could freeze a defendant’s
assets before he is convicted and before the assets are finally
adjudged to be forfeitable, as authorized by 21 U.S.C. § 853.
The Court acknowledged that such pre-trial freezing of
assets “raises distinct constitutional concerns.” 491 U.S. at
615. But, applying the principles set forth in Caplin &
Drysdale, the Court concluded that the Sixth Amendment
does not bar the government from freezing assets in a
defendant’s possession before trial if there has been a finding
of probable cause to believe that the assets are forfeitable
under the statute. Id. at 615–17.
Thus, we must first determine whether the government
had a property right in the seized funds, even though they
were in Lillard’s inmate account. As noted above, Lillard
acknowledges that the government seized those funds to
satisfy the valid restitution order from Lillard’s 1998 case—
10 UNITED STATES V. LILLARD
after Lillard was convicted and judgment had been entered
against him. That restitution order was issued pursuant to the
Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A.
Under 18 U.S.C. § 3613(c), such a restitution order gives the
government a lien “on all property and rights to property of
the person” against whom judgment is entered until the
liability is satisfied or otherwise terminated.
Because of the restitution order and § 3613(c) lien, the
government’s property interest in Lillard’s funds was
comparable to the government’s property interest in the
forfeitable assets considered in Caplin & Drysdale. See Luis,
578 U.S. at 16 (noting that application of § 853(c)’s relation-
back provision made the government in Caplin & Drysdale
“something like a secured creditor with a lien on the
defendant’s tainted assets superior to that of most any other
party”). Because the seized funds effectively belonged to the
government, Lillard did not have a Sixth Amendment right
to use those funds to retain an attorney. 5 See Caplin &
Drysdale, 491 U.S. at 631–32.
Lillard argues, however, that the holdings of Caplin &
Drysdale and Monsanto are limited to “tainted” funds,
meaning funds obtained as a result of, or traceable to, a
crime. Lillard further contends that under Luis, the Sixth
Amendment bars the government from seizing untainted
funds when doing so prevents the defendant from retaining
their counsel of choice. We disagree.
5
In 2019, we held that the government’s seizure of Lillard’s funds was
unlawful because the restitution statute authorizing seizure, 18 U.S.C. §
3664(n), did not apply to periods of pretrial detention. United States v.
Lillard, 935 F.3d 827, 836 (9th Cir. 2019). Our earlier holding does not
affect the status of the underlying restitution order or the government’s
lien pursuant to 18 U.S.C. § 3613(c).
UNITED STATES V. LILLARD 11
The dispositive distinction between Luis on the one hand
and Caplin & Drysdale and Monsanto on the other was not
whether the assets were tainted, but instead whether the
government had a substantial property interest in the assets.
In Caplin & Drysdale and Monsanto, the tainted nature of
the assets was relevant only because the government’s
property interest flowed from the forfeiture statute’s
relation-back provision, which applied only to tainted assets.
Caplin & Drysdale, 491 U.S. at 627; Monsanto, 491 U.S. at615–16.
In Luis, the government sought and obtained an order
that froze the defendant’s assets before trial pursuant to a
different statute: 18 U.S.C. § 1345(a)(2). 578 U.S. at 9. That
statute authorized the court to freeze before trial both
property obtained as a result of, or traceable to, the crime
(tainted assets) and property of equivalent value (untainted
assets). Id. at 8–9. In Luis’s case, the pretrial order froze
property in the latter category, “namely, property that [was]
untainted by the crime, and that belong[ed] fully to the
defendant.” Id. at 9. Unlike the forfeiture statute, § 1345 did
not give the government a property right in Luis’s untainted
assets. See id. at 13. Because the government had no
property right in Luis’s untainted assets—rather, they
“belonged to the defendant, pure and simple,” id. at 12—
Luis had a Sixth Amendment right to use those assets to
retain her counsel of choice under the principles set forth in
Caplin & Drysdale. As the Luis plurality explained, the
material distinction between the assets in Luis and those in
Caplin & Drysdale and Monsanto was “the difference
12 UNITED STATES V. LILLARD
between what is yours and what is mine.” 6 Id. at 16. In
Caplin & Drysdale and Monsanto, although it could not be
said “that the Government ‘owned’ the tainted property
outright,” because of the forfeiture statute’s relation-back
provision “the Government even before trial had a
‘substantial’ interest in the tainted property sufficient to
justify the property’s pretrial restraint.” Id.
Here, Lillard’s assets were untainted, but he had an
existing—not merely potential—restitution obligation.
Because of that restitution obligation, the government had a
lien on Lillard’s untainted funds. 18 U.S.C. § 3613(c). Thus,
unlike in Luis, the fact that Lillard’s funds were untainted
did not diminish the strength of the government’s property
interest. Further, because the government had a substantial
property interest in Lillard’s untainted assets and seized
them for the purpose of restitution, the seizure did not violate
the Sixth Amendment, despite its impact on Lillard’s ability
to pay for counsel of his choice. See Caplin & Drysdale, 419
U.S. at 629–30 (“Where the Government pursues this
restitutionary end, the Government’s interest in forfeiture is
virtually indistinguishable from its interest in returning to a
bank the proceeds of a bank robbery; and a forfeiture-
defendant’s claim of right to use such assets to hire an
attorney, instead of having them returned to their rightful
owners, is no more persuasive than a bank robber’s similar
claim.”).
Lillard also argues that the government property right
established by a restitution order and § 3613(c) lien is
6
Because there was “no rationale common to a majority of the Justices,”
only the result of Luis is binding. United States v. Davis, 825 F.3d 1014,
1016 (9th Cir. 2016) (en banc).
UNITED STATES V. LILLARD 13
relatively weak, for two reasons. First, he notes that a §
3613(c) lien is not perfected without notice. See 18 U.S.C. §
3613(d). Second, he asserts that, because a district court has
discretion to adjust the payment schedule specified in a
restitution order upon notification of a material change in a
defendant’s economic circumstances under 18 U.S.C. §
3664(k), the court has the power to override a § 3613(c) lien.
Those asserted limits on the government’s property right
do not change our conclusion. The government’s property
right established by a § 3613(c) lien is substantially less
contingent than the government’s right to a defendant’s
forfeitable assets before conviction and judgment. The
government is entitled to a § 3613(c) lien only after a
conviction and entry of a restitution judgment against a
defendant. And, while the district court has authority to
modify a defendant’s payment schedule under § 3664(k), it
cannot override the Mandatory Victims Restitution Act’s
command that total restitution equal the value of damages to
property or persons. See 18 U.S.C. § 3663A(b)(1) & (2).
In sum, because the existing restitution order and §
3613(c) lien gave the government a substantial property
interest in the funds in Lillard’s inmate account, the
government’s seizure of those funds to satisfy Lillard’s
restitution obligation did not violate Lillard’s Sixth
Amendment right to counsel of choice.
B. Fifth Amendment
Lillard next claims that the government’s seizure of his
inmate funds violated his due process rights. The Due
Process Clause of the Fifth Amendment guarantees the right
to court-appointed expert and investigative assistance when
the defendant shows that they need such assistance. See, e.g.,
Ake v. Oklahoma, 470 U.S. 68, 82–83 (1985); Williams v.
14 UNITED STATES V. LILLARD
Stewart, 441 F.3d 1030, 1053–54 (9th Cir. 2006). Lillard has
not demonstrated either that he needed such assistance, or
that he requested but was denied the appointment of any
assistance. Therefore, Lillard has not established that the
seizure of funds violated his due process rights.
II. Illegal Sentence
Finally, Lillard contends the district court committed
reversible error by imposing an illegally excessive sentence
for his supervised release violation. For the reasons
explained below, we conclude that the imposition of the
illegally excessive sentence was plain error requiring vacatur
and remand for re-sentencing.
The district court imposed a 196-month sentence of
incarceration for Lillard’s conspiracy conviction, to run
concurrent with a 36-month sentence of incarceration for the
supervised release violation in his District Court of Nevada
case. In that District Court of Nevada case, the most serious
offense of which Lillard was convicted was Class C felony
wire fraud. See 18 U.S.C. §§ 1343, 3559(a)(3). His
supervised release violation therefore carried a maximum
penalty of 24 months’ imprisonment. See 18 U.S.C. §
3583(e)(3). It is undisputed that the 36-month sentence the
district court imposed is illegal because it exceeds the
applicable statutory maximum. See United States v.
Grimaldo, 993 F.3d 1077, 1083 (9th Cir. 2021).
It is also undisputed that Lillard did not object to the
illegal sentence in the district court and that, consequently,
we review for plain error. Id. at 1081. Under the plain error
test, relief may be granted only when there was an error that
was plain and both affected the defendant’s substantial rights
and seriously affected the fairness, integrity, or public
UNITED STATES V. LILLARD 15
reputation of judicial proceedings. United States v. Kirilyuk,
29 F.4th 1128, 1140 (9th Cir. 2022).
The government concedes that the imposition of an
illegal sentence was an error that was plain. See Grimaldo,
993 F.3d at 1084. But the government contends that the
illegal sentence did not affect Lillard’s substantial rights
because his 36-month illegal sentence is shorter than and
concurrent with his 196-month valid sentence in the
conspiracy case. We disagree.
We join the First Circuit in holding that an illegally
excessive sentence violates a defendant’s substantial rights
even if it runs concurrent with an equal or longer, valid
sentence. As that court has recognized, “collateral
consequences may arise as a result of an above-the-
maximum sentence imposed on a particular count.” United
States v. Almonte-Nuñez, 771 F.3d 84, 92 (1st Cir. 2014).
“The existence and extent of these collateral consequences
are notoriously difficult to predict, but they have the
potential to harm the defendant in a myriad of ways.” Id.Indeed, we have noted elsewhere that “multiplicitous
convictions and sentences affect [a defendant’s] substantial
rights because they have collateral consequences, including
the possibility of an increased sentence under a recidivist
statute for a future offense.” United States v. Zalapa, 509
F.3d 1060, 1064–65 (9th Cir. 2007). As just one example,
even sentences that run concurrently may sometimes be
counted separately in determining a defendant’s Criminal
History Category under the Sentencing Guidelines. See
U.S.S.G. § 4A1.2(a)(2). “Although neither we nor [Lillard]
can identify a specific prejudice which may stem from his
erroneous sentence, we are unwilling to place upon [him] the
16 UNITED STATES V. LILLARD
risk that such a prejudice will manifest itself in the future.”
United States v. Kincaid, 898 F.2d 110, 112 (9th Cir. 1990).
The government’s reliance on United States v. Mitchell,
502 F.3d 931 (9th Cir. 2007), is misplaced. In Mitchell, we
reviewed for plain error several robbery sentences that may
have been imposed in violation of United States v. Booker,
543 U.S. 220 (2005). Mitchell, 502 F.3d at 996–97. We held
that the imposition of the robbery sentences did not affect
the defendant’s substantial rights even if it violated the Sixth
Amendment because those sentences were shorter than, and
ran concurrent with, multiple life sentences. Id. In Mitchell
and our other Booker cases, however, the error was that the
district court sentenced the defendant without knowledge
that the Sentencing Guidelines are only advisory. See id. at
997. In such cases, the erroneous sentence was not
necessarily excessive, and the district court would have been
permitted to impose the same sentence on remand. But the
same is not true here, where the error is the imposition of a
sentence that exceeds the statutory maximum and therefore
must be shortened on remand.
We also conclude that the imposition of an illegally
excessive sentence affects the fairness, integrity, or public
reputation of judicial proceedings. As we have recognized in
cases where an illegal sentence increases a defendant’s
period of incarceration, “it is a miscarriage of justice to give
a person an illegal sentence.” United States v. Schopp, 938
F.3d 1053, 1069 (9th Cir. 2019) (quoting United States v.
Ameline, 409 F.3d 1073, 1081 (9th Cir. 2005)). The same is
true where an illegal sentence runs concurrent with a valid
one of equal or longer length. As the First Circuit has noted,
“leaving intact a sentence that exceeds a congressionally
mandated limit may sully the public’s perception of the
UNITED STATES V. LILLARD 17
fairness of the proceeding,” and “[t]hat perception, in turn,
may threaten respect for the courts and may impair their
reputation.” Almonte-Nuñez, 771 F.3d at 92. And because re-
sentencing is a “simple” task, “a failure to exercise our
discretion in order to allow a district court to correct an
obvious sentencing error that satisfies the three prongs of the
plain error test would in itself undermine the ‘fairness,
integrity, and public reputation of judicial proceedings.’”
United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th
Cir. 1999); see also Almonte-Nuñez, 771 F.3d at 92(recognizing that “correcting such an error will rarely tax
judicial resources”).
We are aware that the Eighth Circuit has held that the
imposition of an illegal sentence that does not increase a
defendant’s term of imprisonment does not affect his
substantial rights. See United States v. Bossany, 678 F.3d
603, 607 (8th Cir. 2012). Although the Bossany court
recognized “that the mere presence of an excessive sentence
in a defendant’s record has the potential of causing
prejudice,” it also noted that it had held in other contexts that
“an illegal sentence alone does not establish the prejudice
necessary for plain error relief.” Id. at 606–07. Specifically,
the court cited two of its pre-Booker cases holding “that a
defendant’s substantial rights are not affected by sentences
that exceed the maximum authorized by jury findings (and
thus violate the Sixth Amendment), if the district court
‘could have’ imposed legal sentences on those counts and
used consecutive sentences (rather than concurrent) to
achieve the same ‘total punishment’ under U.S.S.G. §
5G1.2(d).” Id. at 607. The court believed those cases
“require [defendants] to show that, absent the error, the court
could not have imposed [the same] total punishment, which,
of course, [they] cannot do” when an illegal sentence runs
18 UNITED STATES V. LILLARD
concurrent with a valid sentence of equal or longer length.
Id.
But, as we have explained elsewhere, pre-Booker cases
have “limited applicability” in contexts like this one
precisely because of U.S.S.G. § 5G1.2(d). Kirilyuk, 29 F.4th
at 1140. In particular, before Booker, U.S.S.G. § 5G1.2(d)
“would have required the district court to impose
consecutive sentences to reach the total proper punishment
under the Guidelines if it exceeded the statutory maximum
on a single count.” Id. at 1141. Under Booker, however, the
Federal Sentencing Guidelines are no longer mandatory. 543
U.S. at 246. We are thus unpersuaded by the Eighth Circuit’s
reasoning.
We vacate the 36-month sentence imposed for Lillard’s
violation of supervised release and remand to the district
court for re-sentencing in that case.
AFFIRMED in part, VACATED in part, and
REMANDED in part.