Section 5G1.2 of Guidelines No Longer Mandatory

United States v. Kurti, Docket No. 04-2239-cr (2d Cir. Oct. 19, 2005) (Winter, Katzmann, Murtha (by designation)): Praise the lord: The often ignored and little understood provision of the Guidelines establishing the “procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case,” i.e., U.S.S.G. § 5G1.2, has officially been declared merely advisory in light of Booker. Here, Kurti pled guilty to two counts charging him with conspiring to distribute an unspecified quantity of narcotics (one count concerned marijuana and the other concerned ecstacy). The statutory maximum on each was 20 years. His Guidelines range was 360 to life, and the district judge at the pre-Booker sentencing imposed a sentence of 360 months. She did not specify, however, “either the length of time to be served on each count or which portion of the sentence of a count was to run consecutively to the other.” Op. at 8. This was error.

Under Section 5G1.2(c), the “formal sentence” should have been imposed as follows: 240 months on count 1 and 240 months on count 2, 120 months of which to run consecutively to the 240-month sentence imposed on count 1, with the remaining 120 months to run concurrently with the count 1 sentence. See, e.g., United States v. Fuller, 332 F.3d 60, 68 (2d Cir. 2003). In light of Booker, however, the Circuit recognized that Section 5G1.2 was no longer mandatory. A remand was nonetheless required, since the judge had to indicate the specific sentence she intended to impose on each count, given that the total sentence of 360 months exceeded the 240-month maximum on each count. Additionally, the court should consider on remand whether she would have imposed the same sentence in light of Booker and the Section 3553(a) factors.

Even if the judge determines on remand that the 360-month sentence remains appropriate, therefore, she need not follow Section 5G1.2’s detailed procedures in imposing sentence. Thus, she could simply impose a sentence of 240 months on count 1 and a sentence of 120 months on count two, to run consecutively to the sentence imposed on count 2.