In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1374
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P EDRO H ERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 832—Wayne R. Andersen, Judge.
S UBMITTED A UGUST 23, 2010 —D ECIDED S EPTEMBER 2, 2010
Before W OOD , E VANS, and T INDER, Circuit Judges.
W OOD , Circuit Judge. Pedro Hernandez pleaded guilty
to one count of distribution of more than 50 grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1). At
the time he did so, he had already been convicted in
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus the
appeal is submitted on the briefs and the record. F ED . R. A PP .
P. 34(a)(2).
2 No. 10-1374
Illinois state court for an unrelated offense, unlawful
possession of a firearm. At the time of his federal sen-
tencing, Hernandez had served 18 months on his state
sentence; Hernandez asked the district court to run his
federal sentence concurrently with his state sentence.
The federal offense was subject to a 10-year statutory
minimum, and so Hernandez made clear that he was
asking for a nominal federal sentence of 102 months. That
sentence, he said, coupled with the 18 months he had
already served, would add up to the 120-month term
required by § 841(b)(1)(A).
The district court expressed sympathy for Hernandez’s
request, but held that it did not have the authority
to structure the sentence that way. Instead, the court
believed, it was required by U.S.S.G. § 5G1.3(c) to
impose the full 120 months as part of the federal sen-
tence, because Hernandez’s state offense was unrelated
to his federal offense. Hernandez appeals, asserting that
the district court erred when it concluded that it did not
have the legal authority to impose a fully concurrent
sentence. He seeks a remand for resentencing.
Hernandez’s case is governed by our recent decision
in United States v. Campbell, No. 09-3527, 2010 WL 3221830
(7th Cir. Aug. 17, 2010). The defendant in Campbell
had been convicted of a violation of 18 U.S.C. § 922(g)(1),
being a felon in possession of a firearm; as an armed
career criminal, he was subject to a 15-year mandatory
minimum sentence. See 18 U.S.C. § 924(e). The district
court concluded that the 15-year term was appropriate;
the statutory minimum sentence was below Campbell’s
No. 10-1374 3
advisory guidelines range. At that point, Campbell asked
the court to adjust his federal sentence to take into
account the nine months he had already served on
an unrelated state conviction. Believing that it had no
authority to do so under U.S.S.G. § 5G1.3(c), the
district court denied Campbell’s request.
On appeal, we concluded that the district court had
misapprehended its discretion. We pointed out that the
governing statute for these purposes is 18 U.S.C. § 3584(a),
which “gives a district court the discretion to impose
a term of imprisonment either concurrently or consecu-
tively to a prior undischarged term, taking into consider-
ation the factors enumerated in 18 U.S.C. § 3553(a).”
Campbell, 2010 WL 3221830 at *2. The relevant sentencing
guideline is, as the district court noted, section 5G1.3,
which is divided into three parts. Campbell had not
committed his offense while serving a term of imprison-
ment or after sentencing but before beginning to serve
a term for a different offense, and so § 5G1.3(a) did not
apply to his case. Nor did § 5G1.3(b) apply to his case,
because it is limited to other offenses that qualify as
relevant conduct under U.S.S.G. § 1B1.3 for the offense
of conviction. Instead, Campbell’s case was governed by
§ 5G1.3(c), which reads as follows:
(c) (Policy Statement) In any other case involving
an undischarged term of imprisonment, the sentence
for the instant offense may be imposed to run con-
currently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant
offense.
4 No. 10-1374
This language, we held, does not and cannot detract from
the discretion that § 3584 confers on district courts to
choose a concurrent sentence. The fact that § 5G1.3(b) is
more specific about adjustments for undischarged terms
of imprisonment means only that the guidelines take a
more specific position on that situation than they do
for cases involving unrelated conduct. Following the
guidance of United States v. Ross, 219 F.3d 592 (7th Cir.
2000), we concluded that “a district court could impose
a sentence below the § 924(e)(1) mandatory minimum
to account for time served on a related undischarged
sentence, so long as the defendant’s total period of state
and federal imprisonment equaled the statutory mini-
mum.” Campbell, 2010 WL 3221830 at *2. We remanded
Campbell’s case to give the district court an opportunity
to decide whether Campbell should be sentenced to
171 months—a term that, along with the nine months
he had served on his state sentence, would add up to
the mandatory minimum of 180 months (15 years).
The only difference between Campbell’s case and
Hernandez’s case is the offense of conviction. Hernandez
faces a mandatory minimum of 10 years for his drug
conviction, while Campbell faced a mandatory mini-
mum of 15 years because of his armed career criminal
status. That detail has no bearing on the rationale of our
decision in Campbell. Although we speculated in our
recent decision in United States v. Cruz, 595 F.3d 744, 746
(7th Cir. 2010), that the operative mandatory sentencing
language in the statute at issue in this case might be
less flexible than the statute at issue in Campbell and
Ross, now that the question is squarely before us we
No. 10-1374 5
find the linguistic difference irrelevant. The statute
under which Hernandez was sentenced, 21 U.S.C.
§ 841(b)(1)(A), provides the offender “shall be sen-
tenced,” while the sentencing statute in Campbell, 18 U.S.C.
§ 924(e), provides violators “shall be . . . imprisoned.”
To permit this slight difference in wording to alter the
outcome in this case would “exalt form over substance,”
subverting the spirit of Ross. See Ross, 219 F.3d at 594.
We conclude, therefore, that Hernandez’s sentence must
be vacated and his case returned to the district court
for resentencing. We note in this connection that the
original district court judge has now retired from his
post, and thus the case will be assigned to a different
judge. The new judge, however, should take note of the
original judge’s clear signal that he would have been
open to fully or partially concurrent sentences if he had
the necessary authority. As we noted earlier, at the time
of the original hearing, Hernandez had served 18 months
on his state sentence, and so he was seeking a federal
sentence of 102 months. The parties will be free to argue
on remand what additional adjustments, if any, they
believe are appropriate as a result of the passage of
time and any credit Hernandez has already received on
his federal sentence.
V ACATED AND R EMANDED.
9-2-10