United States v. Ernest G. Lail

While already serving consecutive sentences for bank robberies, defendant Ernest G. Lail, as part of a plea agreement, pled guilty to an unrelated count of mail fraud in violation of 18 U.S.C. § 1341 . The district court sentenced Lail to a term of 21 months, the low end of the applicable guidelines range, but ruled that the sentence be served consecutive to his prior terms. Lail appeals the ruling that his sentence be served consecutively rather than concurrently. Because the court’s decision was a discretionary refusal to depart downward under the guidelines, we dismiss the appeal.

Under the Sentencing Guidelines, if a defendant commits an offense while serving an undischarged term of imprisonment, then consecutive terms are appropriate.

U.S.S.G. § 5G1.3(a). While this provision appears to require consecutive terms, the district court retains the discretion to order a concurrent term under 18 U.S.C. § 3584 (a). See United States v. Wills, 881 F.2d 823, 826 (9th Cir.1989).

Wills does not discuss how the discretion under § 3584(a) should be exercised within the context of the sentencing guidelines. In making a sentencing decision, § 3584(b) directs the court to…