IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40408
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL CAVAZOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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August 1, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Saul Cavazos was convicted for possession of marijuana with
intent to distribute and has appealed his sentence. Cavazos
states several times in his brief that, contrary to statements
made by the district court, he was not sentenced at the bottom of
the guideline imprisonment range. Cavazos is incorrect.
Cavazos’ base offense level of 26 was reduced by three levels for
acceptance of responsibility. Cavazos’ total offense level of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
23, together with a criminal history category III, resulted in a
guideline imprisonment range of 57-71 months. Cavazos was
initially sentenced to a 57-month term of imprisonment. The
district court departed downward one level in granting the
Government’s § 5K1.1 motion. The resulting guideline
imprisonment range was 51-63 months. Cavazos’ term of
imprisonment, following the departure, was 51 months. Although
Cavazos did not receive the shortest possible aggregate sentence
because the district court did not order that the sentences for
the two drug convictions run concurrently, Cavazos was sentenced
at the bottom of the guideline range for the instant offense.2
Cavazos argues that the district court should have sentenced
him to serve his sentences for his two possession-of-marijuana
convictions concurrently. Cavazos contends that the district
court would have been persuaded to order concurrent sentences if
the Government had been compelled to divulge evidence showing
Cavazos’ minor role in the offense.3
When a defendant is subject to an undischarged term of
2
The source of this confusion appears to be a misprint
in the district court’s statement of reasons for imposing its
sentence, in which the criminal history category is listed as
“II” instead of “III.” The guideline range listed in that
document is for a level 23, category III, however, and the
analysis in the PSR, which was adopted by the district court,
found that Cavazos has a criminal history category of III.
3
Cavazos does not raise as an issue on appeal whether his
offense level should have been adjusted under U.S.S.G. § 3B1.2
because of his minor role in the offense.
2
imprisonment, the district court generally has authority to
impose a term of imprisonment on the current offense to run
concurrently with, or consecutively to, the prior undischarged
term of imprisonment, subject to consideration of the factors
listed in 18 U.S.C. § 3553(a) and applicable guidelines or policy
statements.4 See U.S.S.G. § 5G1.3 comment. (background note)
(citing 18 U.S.C. § 3584(a)). The guidelines permit the district
court to impose a concurrent or consecutive sentence (except in
circumstances not applicable here) “to achieve a reasonable
punishment for the instant offense.” § 5G1.3(c). The commentary
to § 5G1.3 provides:
To achieve a reasonable punishment and avoid
unwarranted disparity, the court should consider the
factors set forth in 18 U.S.C. § 3584 (referencing
§ 3553(a)), and be cognizant of:
(a) the type(e.g., determinate, indeterminate,
parolable) and length of the prior undischarged
sentence;
(b) the time served on the undischarged sentence and
the time likely to be served before release;
(c) the fact that the prior undischarged sentence may
have been imposed in state court rather than
federal court, or at a different time before the
same or different federal court; and
(d) any other circumstance relevant to the
4
Because the district court clearly had authority to impose
a concurrent sentence under § 5G1.3(c), Cavazos's argument
regarding whether the district court erroneously believed that it
lacked authority to depart downward is a “red herring.” A
concurrent sentence would not have involved a departure from the
guidelines.
3
determination of an appropriate sentence for the
instant offense.
§ 5G1.3 comment. (n.3).5
5
The factors set forth in § 3553(a) are as follows:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide punishment for the
offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of
the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentence range
established for--
(A) the applicable category of offense committed
by the applicable category of defendant as set forth in
the guidelines that are issued by the Sentencing
Commission pursuant to § 994(a)(1) of title 28 United
States Code, and that are in effect on the date the
defendant is sentenced . . .
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C.
§ 994(a)(2) that is in effect on the date the
defendant is sentenced;
(6) the need to avoid unwarranted sentence
discrepancies among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.
18 U.S.C. § 3553(a); see United States v. Richardson, 87 F.3d
706, 709 (5th Cir. 1996).
4
Although § 5G1.3(c) is a “policy statement,” it, along with
and its interpretive commentary, is binding on the district
court. United States v. Alexander, 100 F.3d 24, 25-26 (5th Cir.
1996), cert. denied, 117 S. Ct. 1273 (1997). “District court
decisions as to the application of consecutive or concurrent
sentences are reviewed for abuse of discretion.” Richardson, 87
F.3d at 709; see id. at 711 (inferring that the district court
had considered the § 3553(a) factors from its statement that it
had considered the objectives of punishment and deterrence in
imposing sentence).
In this case, it is clear that the district court believed
that the sentences should run consecutively because the two
convictions involved two separate offenses. The district court
was plainly aware of the aggregate sentence for the two drug
convictions and considered that sentence to be appropriate under
the circumstances. Although the district court did not expressly
apply the § 3553(a) factors, the district court’s reasons for
imposing consecutive sentence are no more obscure than those
which were found adequate by the court in Richardson. See 87
F.3d at 710-11. Cavazos had been released on bond following his
arrest for possession of marijuana with intent to distribute. He
jumped bond and committed another narcotics violation while he
was a federal fugitive. Id. The district court’s imposition of
consecutive sentences did not result in an unreasonable aggregate
sentence under these circumstances and did not constitute an
5
abuse of discretion. Cavazos was sentenced at the bottom of the
guideline range.
Cavazos contends that he should have been permitted to
elicit mitigating evidence showing his minor role in the offense.
Cavazos concedes that the facts which he believes are in dispute
did not affect his sentence but argues that the district court
should have resolved those factual disputes, nevertheless,
because of their impact upon his eligibility for parole and upon
the conditions of his confinement. Under U.S.S.G. § 6A1.3(b),
the district court is required to resolve “disputed sentencing
factors” in accordance with Fed. R. Crim. P. 32(a)(1). “When a
reasonable dispute exists about any factor important to the
sentencing determination, the court must ensure that the parties
have an adequate opportunity to present relevant information.” §
6A1.3 comment. Under Rule 32(c), the district court must rule on
unresolved objections to the PSR.
The court may, in its discretion, permit the parties to
introduce testimony or other evidence on the
objections. For each matter controverted, the court
must make either a finding on the allegation or a
determination that no finding is necessary because the
controverted matter will not be taken into account in,
or will not affect, sentencing.
Fed. R. Crim. P. 32(c)(1). The district court determined that
the disputed facts did not affect the guideline calculation, and
sentenced Cavazos at the low end of his guideline imprisonment
range on the basis of Cavazos’ version of his role in the
offense. The district court expressly held that, under Cavazos’
6
version of his role in the offense, no adjustment in guideline
level, up or down, was merited. See United States v. Mueller,
902 F.2d 336, 346-47 (5th Cir. 1990). For that reason, evidence
pertinent to Cavazos’ role in the offense was not considered.
The district court complied with Rule 32(c). Cavazos’
eligibility for parole and conditions of confinement are not
“sentencing factors.” Cavazos has not cited any authority which
stands for the proposition that factors pertinent to parole and
conditions of confinement must be resolved at sentencing.
Cavazos contends that the district court erred in
determining that the sentences for the prior drug conviction and
the bond-jumping conviction were “prior sentences” within the
meaning of U.S.S.G. § 4A1.2, in calculating Cavazos’ criminal
history score. The district court credited Cavazos for time
served from the date of his second arrest in January 1995.
Cavazos was sentenced for the prior marijuana conviction and
bond-jumping conviction after that date. Cavazos contends that
these sentences were not “prior sentences” because he had already
begun serving his sentence for the second marijuana conviction at
the time he was sentenced for those crimes. This argument is
without merit.
“The term ‘prior sentence’ means any sentence previously
imposed upon adjudication of guilt, whether by guilty plea,
trial, or plea of nolo contendere, for conduct not part of the
instant offense.” § 4A1.2(a)(1). “‘Prior sentence’ means a
7
sentence imposed prior to sentencing on the instant offense,
other than a sentence for conduct that is part of the instant
offense.”6 § 4A1.2 comment. (n.1) (emphasis added). Because the
sentences for the first marijuana-possession conviction and the
bond-jumping conviction were imposed prior to sentencing for the
instant offense, they were clearly “prior sentence[s]” for
purposes of § 4A1.2.
AFFIRMED.
6
Cavazos does not argue that the prior sentences are
related because they resulted from a common scheme or plan. See
§ 4A1.2 comment. (n.2).
8