IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-50153
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTONIO FLORES,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(W-96-CR-58-1)
_________________________
November 5, 1997
Before MAGILL,* SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:**
Antonio Flores contests the stacking of his federal conviction
for drug trafficking on top of his prior state conviction for
similar conduct occurring a year before the conduct at issue in the
federal trial, arguing that the district court failed properly to
*
Circuit Judge of the Eighth Circuit, sitting by designation.
**
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should not be published and is not precedent except under the limited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.
consider allowing the sentences to run concurrently. Because the
version of the sentencing guidelines in effect at sentencing gave
the district court such broad discretion that its failure to
consider all factors did not change the sentence imposed, we
affirm.
I.
In February 1997, Flores was convicted of possessing 140 grams
of cocaine with intent to distribute in violation of 18 U.S.C.
§ 841(a). When Flores was arrested in 1996, he was awaiting
sentencing on a state law charge, also for possession of cocaine,
arising out of a September 1995 arrest. In August 1996SSafter the
federal arrest but before sentencing on the federal chargeSSFlores
was sentenced by the state to eight years’ imprisonment.
At the federal sentencing hearing, defense counsel asked the
court to consider whether the sentences should run concurrently or
consecutively. The court inquired whether the conduct was the
same. The government replied that it was not, because the events
occurred about a year apart. The government also argued,
correctly, that the sentencing guidelines did not require taking
into account the state conduct.1
1
The application notes explain that conduct “taken into account” is “Relevant
Conduct” that is considered part of the federal offense; it does not mean the state
conviction was included in the criminal history category. See U.S.S.G. § 5G1.3,
application note 2. See, e.g., United States v. Richardson, 87 F.3d 706, 709 n.
4 (5th Cir. 1996).
2
In response, defense counsel argued that the court had
authority under the guidelines to make the sentence either
consecutive or concurrent, and that because Flores's criminal
history category was increased three points to reflect the state
offense, a concurrent sentence would be appropriate. The court
followed the PSR and imposed a sentence of 92 months, the minimum
sentence permissible for a base level of 26 and criminal history
category of IV, with the sentences to be served consecutively.
II.
Flores asserts now that the district court imposed the
consecutive sentence under the misapprehension that § 5G1.3(a)
required it or, alternatively, that the court failed properly to
exercise its discretion under § 5G1.3(c). Although we review a
choice between concurrent and consecutive sentences for abuse of
discretion, we apply a de novo standard to questions of proper
application of the guidelines. Richardson, 87 F.3d at 710.
The government argues that we should review the decision for
plain error, on the ground that defense counsel did not properly
raise the issue in the district court. See United States v.
Torrez, 40 F.3d 84, 86 (5th Cir. 1994). Although counsel did not
specifically mention § 5G1.3, he did ask for a concurrent sentence
and argued that the court had discretion to choose between
concurrent and consecutive sentences. Under United State v.
3
Hernandez, 64 F.3d 179, 181 (5th Cir. 1995), a request that a
sentence run concurrently with an undischarged state sentence is
sufficient to alert the court to the issue before it. Therefore,
plain error review is inappropriate. We review the district
court’s application of the guidelines de novo.
The record presents no evidence that the district court
improperly thought a consecutive sentence was required. Neither
the parties nor the court mentioned § 5G1.3(a). The defense did
not bring up § 5G1.3(c), but defense counsel suggested that the
court had the authority to choose a concurrent sentence, and the
court did not dispute this contention. Neither the government nor
the court stated at any point that the court was required to impose
a consecutive sentence. Rather, the government argued that a
“concurrent sentence would not be appropriately applied under the
Guidelines.”
Here, we have no reason to think that the court mistakenly
applied § 5G1.3(a), rather than § 5G1.3(c). Flores suggests no
case in which an appellate court has presumed error on the part of
the district court, where the proceedings and result are entirely
consistent with proper application of the law, merely because
another interpretation is conceivable. Accordingly, we conclude
that the district court did not apply the wrong section of the
guidelines.
Flores suggests that, even if the court did not believe that
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the guidelines compelled it to stack the sentences, it failed to
perform the discretionary analysis required by § 5G1.3(c). Under
the old version of the guidelines, Flores might have a plausible
claim. The application notes to the 1992 version of the guidelines
instructed the court to determine the sentence that would have been
imposed had both offenses been federal and had sentence been
imposed for both at once. See U.S.S.G. § 5G1.3(c) application
note 3 (as amended effective Nov. 1, 1992, superseded by amendment
effective Nov. 1, 1995). Those guidelines referred to the second
sentence as an “incremental punishment for the instant offense.”
Although the application notes were intended to guide courts rather
than bind them, a district court was expected to explain its
reasons for refusing to follow the procedure suggested in the
commentary. See United States v. Plantan, 102 F.3d 953, 956 (7th
Cir. 1996); United States v. Covert, 117 F.3d 940, 945 (6th Cir.
1997).
The current guidelines eliminate the word “incremental,”
leaving courts to impose a “reasonable punishment for the instant
offense.” See U.S.S.G. § 5G1.3(c) (as amended effective Nov. 1,
1995). In the most recent version of the guidelines, the
application notes have eliminated the detailed instructions on
calculating an “incremental” sentence, replacing them with a broad
directive to consider the type and length of the prior undischarged
sentence, the time served on the undischarged sentence, the fact
5
that the undischarged sentence may have been imposed by a state
court or by a federal court at a different time, and “any other
circumstance relevant to the determination of an appropriate
sentence for the instant offense.” Id., application note 3. The
detailed examples of incremental sentencing provided in the older
version have been eliminated. See id., historical notes.
The new guidelines provide almost no restrictions on the
sentencing court in this respect. Although they list factors to
consider in making the determination whether a sentence should be
concurrent or consecutive, they do not suggest how those factors
should be applied. Unlike the older application notes and
illustrations, the current guidelines do not provide a suggested
outcome for particular cases, whose rejection must be justified.
It therefore would be a waste of judicial resources to require a
district court explicitly to consider each factor, as the
guidelines do not require or even suggest that any of the factors
lead to a particular result. Essentially, the current guidelines
merely ask the court to be aware of the fact that the defendant is
serving time for another offense and that this fact may influence
the just sentence for the current offense.
To the extent that the current guidelines suggest a particular
outcome, they suggest running the sentences consecutively. Whereas
the guidelines used to call for a “reasonable incremental
punishment,” the current ones require a “reasonable punishment for
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the instant offense.” U.S.S.G. § 5G1.3(c). Because a concurrent
sentence for the federal conviction would have led to little or no
additional time for an entirely separate, serious crime, it would
effectively apply a punishment of three years' probation, a fine,
and no time served. Such a result could hardly be described as a
“reasonable punishment for the instant offense.” Although there is
little jurisprudence on the application of the 1995 amendment to
the guidelines, the two courts to have considered an alleged
imposition of consecutive sentences without proper consideration of
the § 5G1.3(c) factors summarily affirmed, suggesting greater
leniency in the application of the new § 5G1.3(c) than courts
enjoyed under the previous version. See United States v. Gray,
121 F.3d 710, 1997 WL 413663, *4 (6th Cir. 1997) (unpublished);
United States v. Pfeil, 116 F.3d 489, 489, 1997 WL 345976, at *1
(10th Cir. 1997) (unpublished).
Furthermore, even if the district court erred in failing
explicitly to consider the factors mentioned in the guidelines,
such failure was harmless. The court imposed a sentence of only 92
months, the minimum possible for the applicable base offense level
and criminal history category. Nothing in the new guidelines or
their commentary suggests that the court should have imposed a
different sentence. Remand is not appropriate where we conclude,
on consideration of the record, that the error in applying the
guidelines did not change the sentence imposed. See Williams v.
7
United States, 503 U.S. 193, 203 (1992).
AFFIRMED.
8