Michael McPartland v. USA

Filing

OPINION filed : REMANDED, decision not for publication. Alice M. Batchelder, Chief Circuit Judge; Ralph B. Guy , Jr., Authoring Circuit Judge and Karen Nelson Moore, Circuit Judge.

Case: 12-3146

Document: 006111992398

Filed: 03/17/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0204n.06
Case No. 12-3146
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
MICHAEL J. McPARTLAND,

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Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Mar 17, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Michael McPartland appeals the denial of
his 28 U.S.C. § 2255 motion.

For the following reasons, we remand for further

consideration by the district court.
I.
In August of 2008, McPartland pleaded guilty to nine counts of bank robbery in
violation of 18 U.S.C. § 2113. In accordance with McPartland’s plea agreement, the
federal district judge sentenced McPartland to 76 months of imprisonment for each of the
nine bank robbery counts, to be served concurrently.

At the time of his federal

Case: 12-3146

Document: 006111992398

Filed: 03/17/2014

Page: 2

Case No. 12-3146, McPartland v. United States

sentencing, McPartland also faced an Ohio state assault charge for backing his car into an
Ohio police cruiser while trying to avoid arrest in connection with the nine bank
robberies. There was no mention of this state assault charge at McPartland’s federal
sentencing and McPartland’s counsel did not request that his federal sentence be served
concurrently with the anticipated but not-yet-imposed state assault sentence.1
McPartland later pleaded guilty to the Ohio assault charge pursuant to a plea
agreement that provided that the state would recommend McPartland’s state sentence run
concurrently with his federal sentence.

The Ohio court rejected the state’s

recommendation and sentenced McPartland to three years of imprisonment, to be served
consecutively to his federal sentence. McPartland served the Ohio sentence then, in
December of 2010, he began serving his federal sentence.

McPartland provides a

computer printout from January 5, 2011, which indicates that the Bureau of Prisons did
not credit him for time served on his state conviction.
McPartland then filed his § 2255 motion on November 14, 2011, requesting that
the court credit him with time served for the 944 days he was imprisoned on his state
conviction. In addressing the motion, the district judge listed several reasons for denial,
although it is clear that the primary reason was that he was bound by our decision in
United States v. Quintero, 157 F.3d 1038 (6th Cir. 1998), where we held that district
courts did not have the authority to order federal sentences to be served consecutively to
a not-yet-imposed state sentence.
The federal sentencing court did take McPartland’s flight from Ohio police into account when it applied
a two-level sentencing enhancement under Federal Sentencing Guidelines § 3C1.2, Reckless
Endangerment During Flight.
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Case: 12-3146

Document: 006111992398

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Case No. 12-3146, McPartland v. United States

Shortly thereafter, the Supreme Court issued its decision in Setser v. United States,
132 S. Ct. 1463, 1473 (2012), which held that it is within a district court’s discretion to
order a defendant’s federal sentence to run consecutively or concurrently to an
anticipated state sentence. Setser abrogated United States v. Quintero.
In light of Setser, we granted McPartland a certificate of appealability. We have
concluded that the § 2255 petition is timely because it was filed within one year of the
Setser decision and not barred by the appellate waiver McPartland signed, see United
States v. Bowman, 634 F.3d 357, 361 (2011).

Because the district judge correctly

concluded at the time that he could not order a concurrent sentence, a remand, in light of
Setser, would be the best way to resolve these issues. Upon remand, the district judge is
free to order that the sentences be concurrent and give McPartland credit for time served
on his state sentence, or decline to do so. We express no opinion on what course of
action the district judge should follow.
REMANDED.

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