Because no Federal Offenses are Listed in Section VI of the Guidelines, a State Sentence for an Offense That is on the List Cannot be Permissively Sentenced Consecutively to the Federal Sentence

State v. Hahn, Minn.Ct.App., 5/31/2011.  A jury convicted Mr. Hahn of criminal sexual conduct in the first degree.  The state brought the charges in September 2007, after which the U.S. Attorney’s Office charged him with production of child pornography, photos of his twelve year old rape victim.  Mr. Hahn pleaded guilty to that offense and received a sentence of 210 months in prison.  After that, the state resumed its prosecution.

The jury determined that Mr. Hahn had penetrated his victim more than once.  The state trial judge concluded that this determination authorized either a durational sentencing departure or a state sentence consecutive to the federal one.  The trial court ran the state sentence consecutively to the federal sentence.

Before getting to the sentencing issue there are other issues to look at.  When Mr. Hahn got back from his prosecution over in federal court he demanded a speedy trial.  His trial didn’t start, however, for another 228 days.  In the interim, Mr. Hahn filed some sort of lawsuit against his attorney in federal court and by the time all that had been settled there was another attorney on the state case who needed time to get up to speed.  Ultimately, the appellate court concluded that Mr. Hahn had not been denied a speedy trial.

Mr. Hahn also complained about the introduction of some of the pornographic pictures of the rape victim.  Mr. Hahn had argued that the pictures did not portray sexual contact between the victim and himself and thus were not probative of criminal sexual conduct.  The trial court had admitted the photos to corroborate the victim’s testimony, help the jury weigh her credibility, show Mr. Hahn’s state of mind and his ongoing relationship with the victim.  The appellate court determined that the admission of the photos was not an abuse of discretion.

Now to the sentencing issue.  One way in which sentences are permissively consecutive – and the way that is in play here – is when both offenses are on the list contained in Section VI of the Guidelines.  Criminal sexual conduct in the first degree is on that list; the federal pornography offense is not.  The list is the list and is not subject to modification.  The list is exclusive and does not provide a mechanism for identifying federal offenses that are analogous or equivalent to offenses that are on the list, as is the case in other sections of the Guidelines.  So, permissive consecutive sentencing is not an authorized disposition. 

That makes Mr. Hahn’s state sentence presumptively concurrent.  The only possible basis – multiple acts of penetration – were uncharged conduct because the state only charged one count.  Multiple penetration can’t be the basis for a departure.  Because the trial court articulated no other reasons Mr. Hahn gets a redo on his sentencing.  Judge Schellhas dissented on this aspect of the case and would have upheld the permissive consecutive sentencing.