United States v. Ballard, 599 F. Supp. 2d 539 (S.D.N.Y. March 2, 2009)
Given that the law so favors consecutive mandatory minimums, the motion is not frivolous; but in the end, the Court denies the motion.
That's how Judge Rakoff begins his critique of mandatory minimum sentencing -- similar to his outstanding work in United States v. Adelson concerning the loss table and large-scale financial frauds (detailed here).
By way of background, Ballard was convicted on seven counts relating to a series of armed robberies that he and his co-defendant executed pursuant to a conspiratorial plan. Several of the gun counts of conviction carried mandatory minimum consective sentences of 7 years, 25 years and 25 years. Several of the non-gun counts of conviction had no mandatory minimums, but did have advisory Guidelines ranges. The Government took the position that "the Court should impose on the non-gun counts a sentence at least at the bottom of the Guidelines range (i.e., 7 years), plus consecutive sentences on each of the gun counts (i.e., 7 years plus 25 years plus another 25 years for a total of 64 years in prison)."
When Ballard initially appeared for sentencing, the Court "expressed reservations about imposing a 64-year sentence for a string of robberies that, although by any account serious and deserving of a significant sentence, did not result in any bodily injury or death." The Court "also expressed its belief that a sentence of 'somewhere between 25 and 35 years, a very substantial sentence under any conceivable analysis,' would be more than sufficient" to satisfy 18 U.S.C. § 3553(a) The Government apparently agreed because it made Ballard an offer (sort-of at the Court's suggestion) -- We won't object to a 39 year sentence if you promise not to appeal the sentence. Over his counsel's recommendation, however, Ballard "once again asserting his full panoply of rights, rejected the sentence bargain."
The Court ultimately felt obliged to sentence Ballard to 60 years. The Government then filed its Rule 35 motion, seeking the additional time that it felt the relevant statutes and caselaw (as detailed in the opinion) required the Court to impose. The Court rejected the Government's argument, distinguishing the caselaw (United States v. Chavez, 549 F.3d 119 (2d Cir. 2008)). And then it courageously laid out its conclusion -- which I think speaks for itself concerning the Court's views as to the mandatory minimum sentences with which it had to contend and the Government's position concerning their applicability: