Above-Guideline Sentence for Bank Robbery Affirmed

U.S. v. Redmond, 2010 WL 2881515 (7/23/10) (unpub'd) - Affirmance of an above-guideline-range bank robbery sentence. The district court varied from 125 months to 180 months by running 55 months of a sentence for one of the bank robberies consecutively to the others. It does not seem as though the district court realized it was going above the range, which had already accounted for the multiple counts by virtue of the grouping rules. The district court simply relied on 18 U.S.C. § 3584(b), which permitted consecutive sentences. The 10th saw no double-counting problem because the statute is different from the guidelines. The sentence was substantively reasonable due to the "especially serious and dangerous nature" of the robberies in that they were committed during business hours [wow, that hardly ever happens], the defendant's bad criminal record and his likelihood of recidivism. The 10th only reviewed the lack of notice of an upward variance for plain error because counsel had not objected on that ground or requested a continuance. Under Irizarry v. U.S., 128 S. Ct. 2198 (2008), no notice was required because the defendant had sufficient notice by virtue of his plea agreement and plea hearing in which the possibility of consecutive sentences was mentioned and the d. ct. gave the defendant a chance to respond to the announced sentence and counsel did not object to lack of notice.