Fifth Circuit: Consecutive Sentence for FTA Must Be Part of ‘Total Punishment,’ Not Merely a Stacked Sentence
by Dale Chappell
The U.S. Court of Appeals for the Fifth Circuit held that a mandatory consecutive sentence for a failure to appear (“FTA”) conviction must be calculated as part of the “total punishment,” not merely a stacked sentence, in order to adhere to the U.S. Sentencing Guidelines (“USSG”).
After Rene Izaguirre pleaded guilty to a federal marijuana charge in 2013, he absconded before sentencing. Five years later, he was finally sentenced for that offense when he was arrested for another drug charge. But now he had a FTA conviction to add to that marijuana sentence.
At sentencing, the U.S. District Court for the Southern District of Texas relied on the Government’s explanation that the FTA sentence was the same Guidelines sentencing range (“GSR”) as the marijuana conviction and that the two sentences had to be consecutive. The court then imposed consecutive 108-month sentences for each offense. Izaguirre’s lawyer never objected and, in fact, agreed with this interpretation.
On appeal, Izaguirre argued that this was error because the USSG requires the FTA sentence to run consecutive but only as part of the total GSR, not stacked at the end. The Fifth Circuit agreed, reiterating that a court commits “significant procedural error” when it improperly calculates the GSR. Gall v. United States, 552 U.S. 38 (2007).
The Court acknowledged that a sentencing court may separately calculate the GSR for an FTA offense “to obtain perspective,” but that “calculation would play no part in determining the applicable Guidelines range” for the overall sentence. The way it is intended to work, the Court said, is that the FTA and marijuana conviction should be “grouped” under the USSG to create a higher base offense level. Once the GSR is established for the grouped offenses, then the FTA sentence is severed and imposed consecutive to the main sentence but still within the GSR.
This “total punishment,” the Court said, aligns with Amendment 579 to the USSG in 1998, clarifying this procedure. That amendment also overturned the Fifth Circuit’s prior holding in United States v. Packer, 70 F.3d 357 (5th Cir. 1995), that a FTA sentence is a “separate and distinct” punishment. After Amendment 579, it’s clearly not, the Court said.
“It is clear from the record that [the district court’s] decision to impose two, consecutive sentences of 108 months of imprisonment stemmed directly from its misunderstanding of how the applicable advisory Guidelines range was to be determined,” the Court explained.
Accordingly, the Court vacated Izaguirre’s sentence and remanded for resentencing. See: United States v. Izaguirre, 973 F.3d 377 (5th Cir. 2020).
Related legal case
United States v. Izaguirre
|Cite||973 F.3d 377 (5th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|