                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1389

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C HITTAKONE B ANGSENGTHONG,
                                          Defendant-Appellant.


           Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 07-20069—Michael P. McCuskey, Chief Judge.



   A RGUED D ECEMBER 3, 2008—D ECIDED D ECEMBER 19, 2008




 Before E ASTERBROOK , Chief Judge, and M ANION and
W OOD , Circuit Judges.
  E ASTERBROOK, Chief Judge. Chittakone Bangsengthong
pleaded guilty to a conspiracy that included four armed
bank robberies; he also pleaded guilty to substantive
charges based on two of those robberies. His sentence is 88
m onths’ im prisonment, which seems low — but
Bangsengthong says that it is too high because it runs
consecutively to time he is serving in state prison. Most of
the state time reflects conduct during the attempted escape
2                                                No. 08-1389

from the fourth robbery. While Bangsengthong was driving
the getaway car at high speed and ignoring all traffic rules
(endangering other drivers and pedestrians alike), another
of the gang fired two shots at a pursuing police car. One
bullet hit the car, though not an officer. The chase ended
when Bangsengthong plowed the gang’s car into a wall.
Bangsengthong received 20 years for the attempt to kill a
police officer; he was accountable as a conspirator. While
in state prison, Bangsengthong filed off a toothbrush to
turn it into a weapon; he got three more years for that
crime. The federal district judge concluded that Illinois is
likely to release Bangsengthong after he has served about
12 years; 88 months for the bank robberies takes the total to
230 months’ imprisonment.
   According to Bangsengthong, a consecutive sentence
violates U.S.S.G. §5G1.3(b), which says that the federal
sentence must run concurrently with any other sentence
(state or federal) that “resulted from another offense that
is relevant conduct to the instant offense . . . and that was
the basis for an increase in the offense level for the instant
offense”. The prosecutor concedes that the state sentence
for firing the gun comes within §5G1.3(b) but observes that
the state sentence for possessing a weapon in prison does
not, and he contends that when any earlier sentence falls
outside §5G1.3(b) then §5G1.3(c) gives the district judge
discretion to choose between consecutive and concurrent
sentences. See also §5G1.3 Application Note 3(D): “Occa-
sionally, the court may be faced with a complex case in
which a defendant may be subject to multiple undis-
charged terms of imprisonment that seemingly call for the
application of different rules. In such a case, the court may
No. 08-1389                                                  3

exercise its discretion in accordance with subsection (c) to
fashion a sentence of appropriate length and structure it to
run in any appropriate manner to achieve a reasonable
punishm ent for the instant offense.” To this
Bangsengthong responds that discretion to start the federal
sentence after the 3-year state term does not (at least, need
not) imply discretion to postpone the federal sentence until
after the 20-year state term.
   After United States v. Booker, 543 U.S. 220 (2005), a debate
about how much discretion the Guidelines themselves
confer has the air of the scholastic. For Booker made all
Guidelines advisory; the judge must understand what
sentence the Guidelines recommend but need not impose
it. See also, e.g., Kimbrough v. United States, 128 S. Ct. 558
(2007); Gall v. United States, 128 S. Ct. 586 (2007). Even
before Booker §5G1.3 was effectively advisory whenever the
federal maximum sentence was high enough to let the
judge choose between concurrent and consecutive sen-
tences.
  Suppose a defendant, serving a 10-year state term, has
committed a series of related offenses that the federal judge
thinks justifies 20 years in prison. As long as the federal
maximum is at least 20 years, the judge can choose be-
tween a 20-year sentence concurrent with the state sen-
tence and a 10-year sentence consecutive to the state
sentence. These come to the same thing. If the federal cap
were under 20 years, then an obligation to make the
sentences run concurrently would reduce the defendant’s
total punishment. Otherwise, however, §5G1.3 does
nothing but alert the judge that an appropriate sentence
4                                               No. 08-1389

depends in part on sentences already meted out. (In other
words, a federal judge who thinks that the defendant
should spend 20 years in prison for all related offenses
should not impose a 20-year federal term consecutive to a
10-year state term; that would mess things up by any
standard.)
  Bangsengthong pleaded guilty to three federal crimes.
Each of the two bank-robbery convictions authorizes a
sentence of 25 years, 18 U.S.C. §2113(d), and the conspiracy
conviction adds five, 18 U.S.C. §371, for a maximum of 55
years. The district court could have imposed a 230-month
sentence, running concurrently with the state sentence, and
so produced the same result as 88 months consecutive to
the state sentence. Bangsengthong can’t complain about the
choice of method. (He seems to think that, if the sentences
must be concurrent, we would convert 88 months consecu-
tive to 88 months concurrent, and the federal sentence
would effectively disappear. Not at all. We would instead
remand for the district judge to impose a concurrent
sentence consistent with his original objectives.)
  Actually, defendants should prefer the federal sentence
to be consecutive when the federal maximum is high
enough to allow the judge to use either a consecutive or a
concurrent sentence. For when the federal sentence is
consecutive to the state sentence, any reduction in the time
served under the state sentence cuts the total time in
custody. A defendant who can earn extra good-time
credits, or win release on parole, or have the sentence
commuted by the governor or reduced by the state judge,
or vacated on collateral attack, then must serve only the
No. 08-1389                                                 5

shorter federal term. The district judge thus did
Bangsengthong a favor by giving him an 88-month consec-
utive sentence rather than a 230-month concurrent sen-
tence.
  What we have just said shows one reason why the
Sentencing Commission preferred the federal sentence to
be concurrent with the state sentence. A concurrent
sentence not only protects the federal plan against unex-
pected events that affect the state sentence but also simpli-
fies the federal judge’s task. Before deciding that a consecu-
tive 88-month term achieves his objective, the federal judge
had to predict when Illinois would release Bangsengthong
from his state convictions. Predictions may be incorrect,
and whether correct or not they require resources to make
and subject to adversarial testing at the sentencing hearing.
Instead of relying on costly guesswork about what will
happen to the state sentence, a federal judge generally
should impose the sentence appropriate under federal law,
to run concurrently with the state sentence—provided, as
we have mentioned several times, that the federal maxi-
mum sentence is high enough for this procedure to work.
After Booker the choice belongs to the district judge, but it
should be made with recognition of the reasons why a
concurrent sentence often is best.
  At oral argument Bangsengthong’s lawyer contended
that, if we treat the federal sentence as equivalent to a 230-
month term running concurrently with his state sentences,
then it is unreasonably long. Yet he does not contend that
the judge miscalculated his range under the Sentencing
Guidelines (151 to 188 months) or failed to evaluate the
6                                                 No. 08-1389

criteria of 18 U.S.C. §3553(a) when deciding to impose a
sentence higher than what the Guidelines recommend.
When explaining why Bangsengthong should spend 230
months behind bars, the district judge observed (among
other things) that he is a career criminal, that his crimes are
routinely violent, and that his federal sentence could have
been much longer had the prosecutor added firearms
charges to the bank-robbery charges. Appellate review of
sentencing decisions is deferential, and a 230-month
sentence for four armed bank robberies in which the
robbers terrorized tellers and customers, endangered
drivers and pedestrians, and tried to kill police, is not an
abuse of discretion.
                                                    A FFIRMED




                            12-19-08
