United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the Joint Motion to Consolidate (Doc.
32). Defendant Benjamin Landry and the United States
seek to consolidate two criminal cases for sentencing, which
are pending before Chief Judge Brian A. Jackson and Judge
John W. deGravelles. (Doc. 32-1).
United States filed two Bills of Information against the
Defendant on July 28, 2017. (17-CR-102-BAJ, Doc. 1;
17-CR-103-JWD, Doc. 1). The first, assigned to Chief Judge
Jackson, charged the Defendant with conspiracy to commit
health care fraud for submitting fraudulent claims to
Medicare and Blue Cross and Blue Shield of Louisiana from
2006 to 2013. (17-CR-102-BAJ, Doc. 1). The second, assigned
to Judge deGravelles, charged the Defendant with conspiracy
to obtain oxycodone for using fraudulent prescriptions from
2008 to 2014. (17-CR-103-JWD, Doc. 1). On September 13th and
17th of 2017, the Defendant pled guilty in both cases.
(17-CR-102-BAJ, Doc. 12; 17-CR-103-JWD, Doc. 11).
August 16, 2017, the Government filed an unopposed Motion to
Consolidate the cases for the sake of judicial economy.
(17-CR-102-BAJ, Doc. 5 at ¶ 5). The Government cited
Local Rules 3(a), 3(b), and 10(b) in support of their Motion,
as well as the broad discretion afforded to district courts
under 28 U.S.C. §137 to assign cases to particular
judges. (Doc. 5). In a ruling from the bench, the Court
declined to consolidate the cases because the Local Rules
cited by the Government apply only to the consolidation of
civil-not criminal cases-and because the Bills of Information
did not indicate that the two cases were factually related or
based on a common scheme or plan.
satisfied with the Court's first decision, the Government
and the Defendant again urge the Court to consolidate
Defendant's cases, although for different reasons. (Doc.
32-1). The parties contend that if the Defendant
is sentenced in the conspiracy to obtain oxycodone case
before Judge deGravelles first, his criminal history category
may rise to category II, vaulting his Guidelines range from
24-30 months to 27-33 months, when he is sentenced in the
health care fraud case before Chief Judge Jackson. (Doc. 32-1
at p. 2). Under the Guidelines each of a Defendant's
prior sentences of imprisonment contribute to a
Defendant's total criminal history category points.
U.S.S.G. § 4A1.1. So the more convictions a Defendant
has at sentencing, the higher the Defendant's Guidelines
parties do not point to-nor could the Court identify-any
cases providing specific guidance on whether a court should
consolidate cases for sentencing in similar circumstances.
First, the parties argue that Local Rule 3(a), 3(b), and
10(b) provide a basis to consolidate Defendant's cases.
(Doc. 32-1 at p. 3). Yet these rules speak only to the
transfer and consolidation of civil cases involving similar
operative facts. These rules do not speak to criminal cases.
Similarly unavailing is the Government and Defendant's
reliance on a number of civil cases interpreting the
consolidation of cases under Federal Rule of Civil Procedure
42(a), which permit courts to consolidate civil cases
involving “a common question of law or fact.” The
United States Court of Appeals for the Fifth Circuit, though,
has repeatedly held that the Federal Rules of Civil Procedure
do not apply to criminal cases. See United States v.
Fuller, 459 Fed.Appx. 346 (5th Cir. 2012); United
States v. Jaimes-Jurado, 254 Fed.Appx. 341, 342 (5th
Cir. 2007). The Local Rules and Federal Rules of Civil
Procedure are thus no help to the parties.
parties next cite the Court's inherent authority to
transfer and consolidate cases for the expeditious
administration of justice. (Doc. 32-1 at p. 3). To be sure,
in criminal cases, “District Judges have the inherent
power to transfer cases from one to another for the
expeditious administration of justice.” United
States v. Martinez, 686 F.2d 334, 338 (5th Cir. 1982).
This authority arises from 28 U.S.C. § 137, which
provides that the “business of a court having more than
one judge shall be divided among the judges as provided by
the rules and orders of the Court” and Federal Rule of
Criminal Procedure 57(b), which provides that if “no
procedure is specifically prescribed by Rule, the Court may
proceed in any lawful manner not inconsistent with these
rules or with any applicable statute.”
while the Court has the power to transfer Defendant's
case, the Court declines to exercise this power in light of
the more specific Rules of Criminal Procedure governing
joinder of criminal cases. Under Rule 8, an indictment may
charge a defendant with two or more offenses if the offenses
“are of the same or similar character, or are based on
the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” And under
Rule 13 a court may order “that separate cases be tried
together . . . if all offenses and all defendants could have
been joined in a single indictment or information.” But
neither the Government nor the Defendant moved to join
Defendant's cases under Rule 13, nor does either party
argue that the cases could have even been brought in the same
indictment in the first place.
the parties reliance on the sentencing factors contained in
18 U.S.C. § 3553 is misplaced. Under § 3553, courts
are required “to impose a sentence sufficient, but not
greater than necessary” to account for a variety of
factors, including “the nature and circumstances of the
offense and the history and characteristics of the
defendant[.]” The parties contend that an increase in
Defendant's sentence based on the dates of his
sentencings would create a sentence that would be greater
than necessary to accomplish the prescribed sentencing goals.
While this could be true, the § 3553 factors do not
provide any authority to consolidate cases; they are factors
to be considered when imposing a sentence. At any rate,
either party is free to argue for a variant sentence due to
the impact of the scheduling of the Defendant's
sentencings. Indeed, the Court would expect Defense counsel,
as a zealous advocate, to make this argument at sentencing.
IT IS ORDERED that the Joint Motion