McLarty v. United States

Background

Douglas McLarty was serving two concurrent terms of supervised release when he was arrested on June 2, 2021. He later pleaded guilty to conspiracy to commit Hobbs Act robbery and received a 115-month prison sentence. He also admitted violating both supervised-release terms. The violation in this case resulted in an 18-month prison sentence that ran concurrently with the 18-month sentence imposed in the other supervised-release case, but consecutively to the 115-month sentence.

McLarty filed a motion under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a sentence in limited circumstances. He argued that his former attorney, Louis Fasulo, provided ineffective assistance by failing to ask that the 18-month sentence in this case run concurrently with the 115-month sentence. McLarty also identified other arguments that he said counsel should have made at sentencing.

No Evidentiary Hearing

The court concluded that the motion, the government’s opposition, and the existing record provided enough information to resolve the dispute. It determined that a testimonial hearing was not necessary because there was no factual dispute that could reasonably change the result.

Concurrent Sentence Doctrine

The court first denied the motion under the concurrent sentence doctrine. That doctrine allows a court to avoid deciding a challenge when another identical concurrent sentence means that a favorable decision would not shorten the prisoner’s custody or cause other meaningful harm.

The court found that McLarty’s identical 18-month sentence in the other supervised-release case had been affirmed by the Court of Appeals for the Second Circuit and was not subject to another pending challenge that could reduce his time in custody. The court also found no meaningful risk of additional adverse consequences from leaving the sentence in this case unreviewed. It reasoned that supervised-release revocation is not a separate criminal conviction, does not affect federal parole eligibility because the federal system has no parole, and would add little to the effects of McLarty’s existing criminal history concerning credibility, a possible pardon, or social stigma.

Ineffective-Assistance Claim

Alternatively, the court rejected McLarty’s ineffective-assistance claim on the merits. Under the test established by the Supreme Court, McLarty had to show both that counsel’s performance fell below an objectively reasonable standard and that counsel’s errors probably affected the sentence.

The court did not decide whether Fasulo’s performance was objectively unreasonable. Instead, it held that McLarty could not show the required prejudice. Sentencing judges have discretion to make supervised-release violation sentences concurrent or consecutive to other prison sentences, and a federal sentencing guideline policy generally calls for revocation sentences to run consecutively to sentences the defendant is already serving.

The court stated that its sentencing record showed it had considered the sentences already imposed, including the 115-month sentence and the other 18-month sentence, as well as the seriousness of McLarty’s conduct, the breach of trust involved in violating supervised release, his personal characteristics and medical conditions, his criminal history, deterrence, and public safety. Given those considerations, the court found no reasonable probability that it would have imposed a concurrent sentence with the 115-month sentence even if Fasulo had specifically requested one. The court likewise found no reasonable probability that the other omitted arguments identified by McLarty would have changed the sentence.

Disposition

The court denied McLarty’s § 2255 motion. It directed the clerk to terminate the motion and close case number 24 Civ. 1353. The court also stated that a certificate of appealability would not issue because McLarty had not made a substantial showing that a federal right had been denied.