UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50288
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
AVELARDO CANDELARIO-CAJERO,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
February 6, 1998
Before POLITZ, Chief Judge, HIGGINBOTHAM and DEMOSS, Circuit
Judges.
DEMOSS, Circuit Judge:
Defendant Avelardo Candelario-Cajero was sentenced in a single
sentencing proceeding on multiple counts of conviction for the
offense of transporting illegal aliens. The district court applied
consecutive sentences in apparent disregard of the United States
Sentencing Guidelines, which prescribe a general rule of concurrent
sentences in such a case. We vacate and remand with instructions.
I.
On November 4, 1996, Defendant Avelardo Candelario-Cajero
pleaded guilty to one count of violating 8 U.S.C.
§ 1324(a)(1)(A)(ii). The offense involved the unlawful transporta-
tion of six aliens. Defendant was released on bond. Then, prior
to his sentencing for the aforementioned offense, Defendant was
caught unlawfully transporting seven more aliens. Defendant was
charged with two more counts of violating 8 U.S.C.
§ 1324(a)(1)(A)(ii), and he once again pleaded guilty.
The district court granted Defendant’s motion to consolidate
the three separate convictions for the purposes of sentencing. On
March 28, 1997, the district court sentenced Defendant to eighteen
months of imprisonment on the original count and concurrent ten-
month terms of imprisonment on each of the subsequent counts.1
1
The district court calculated Defendant’s sentence as
follows:
Nov. 1996 Jan. 1997
conviction conviction
Base offense level (§ 2L1.1(a)(2)) 9 9
6-24 aliens involved (§ 2L1.1(b)(2)(A)) +2 +2
Obstruction of justice (§ 3C1.1) +2 --
Acceptance of responsibility (§ 3E1.1) -- -2
Total offense level 13 9
Criminal history category I I
Sentencing range 12-18 4-10
months months
The sentences also include terms of supervised release and special
assessments. The relevant Sentencing Guidelines have been amended
since Defendant’s sentencing. See U.S.S.G. amendments 543 (May 1,
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Over Defendant’s objection, the concurrent ten-month sentences were
imposed consecutively to the eighteen-month sentence.
II.
Defendant timely appeals and contends that the Sentencing
Guidelines require that all three sentences run concurrently. This
Court reviews an alleged misapplication of the Guidelines de novo.
See, e.g., United States v. Kay, 83 F.3d 98, 101 (5th Cir.), cert.
denied, 117 S. Ct. 247 (1996).
When there are “multiple counts of conviction . . . contained
in different indictments or informations for which sentences are to
be imposed at the same time or in a consolidated proceeding,”
U.S.S.G. § 5G1.2 governs the issue of how the separate sentences
are to be imposed. U.S.S.G. § 5G1.2 commentary.
The Guideline provides:
§ 5G1.2. SENTENCING ON MULTIPLE COUNTS OF
CONVICTION
(a) The sentence to be imposed on a count for
which the statute mandates a consecutive sentence
shall be determined and imposed independently.
(b) Except as otherwise required by law (see
§ 5G1.1(a), (b)), the sentence imposed on each
other count shall be the total punishment as
determined in accordance with Part D of Chapter
Three, and Part C of this Chapter.
(c) If the sentence imposed on the count
carrying the highest statutory maximum is adequate
to achieve the total punishment, then the sentences
on all counts shall run concurrently, except to the
extent otherwise required by law.
1997) and 561 (November 1, 1997).
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(d) If the sentence imposed on the count
carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on
one or more of the other counts shall run
consecutively, but only to the extent necessary to
produce a combined sentence equal to the total
punishment. In all other respects sentences on all
counts shall run concurrently, except to the extent
otherwise required by law.
In the present case, the underlying criminal statute, 8 U.S.C.
§ 1324, does not require consecutive sentences, so subsection (a)
of the Guideline is inapplicable. Subsection (b) incorporates the
grouping rules of U.S.S.G. §§ 3D1.1-.5. Under those grouping
rules, regardless of whether the Defendant’s offenses are treated
as multiple counts, see U.S.S.G. § 3D1.1, or a group of closely
related counts, see U.S.S.G. § 3D1.2, the sentence suggested by the
Guidelines does not stretch beyond the maximum statutory sentence,
which is five years under the applicable version of 8 U.S.C.
§ 1324.2 Thus, under subsection (c), the Guidelines require that
the sentences run concurrently.
Based on the rule of U.S.S.G. § 5G1.2(c), Defendant objected
to the district court’s imposition of consecutive sentences. This
objection was overruled, but the legal justification for the ruling
was not made clear. The district court responded to Defendant’s
objection at the sentencing hearing as follows:
[W]e’re going to run consecutive, you know, because
he -- within the space of a few months he pled
guilty on two different illegal transportations so
-- an he’s lucky I’m not doing -- going to do the
2
The statute has been amended to provide, in cases of profit-
motivated violations, a ten-year maximum sentence and a three-year
minimum sentence for first- and second-time offenders. See 8
U.S.C. § 1324. The new provisions do not apply to Defendant.
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-- or frankly, I think it would justify an upward
departure somewhere close to the maximum statutory
range, but I’m not going to do that. But I am
going to run them consecutive.
If the district court believed that consecutive sentences were
required by the Guidelines, it was plainly mistaken. But if the
court intended to depart from the Guidelines because of special
circumstances, that intention was expressed very ambiguously. The
parties draw different conclusions from this scenario.
Defendant argues that the Guidelines were simply applied in
error. He relies entirely on his interpretation of the court’s
ruling, which is that the court explicitly stated an intention not
to depart from the Guidelines. Reasoning from the premise that the
court determined that a departure was not warranted, the Defendant
concludes that the court’s failure to impose concurrent sentences
was an erroneous application of U.S.S.G. § 5G1.2.
The government takes a different approach in its attempt to
salvage the sentence, asserting that the district court’s decision
to depart from the Guidelines should be implied from its action.
Indeed, the argument for departure is a strong one. If the
Guidelines are applied as suggested by the Defendant, there will be
no additional sanction for his second offense, which was committed
after Defendant was convicted on the first offense and awaiting
sentencing.
The government thus argues that § 5G1.2 may be disregarded
when a departure from the grouping rule is warranted. In such a
case, the district court has authority under 18 U.S.C. § 3584(a) to
decide whether to impose concurrent or consecutive sentences for
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multiple terms of imprisonment. See, e.g., United States v.
Martinez, 950 F.2d 222, 226 (5th Cir. 1991), cert. denied, 504 U.S.
926 (1992). The unique factor in this case -- the lack of sanction
for repeated criminal conduct after a conviction -- arguably
warrants departure.3 The applicability of § 5G1.2 to a
consolidated sentencing hearing could not have been intended to
have this counterintuitive effect. Therefore the scenario may be
considered to fall outside the “heartland” contemplated by the
Sentencing Commission, making it a candidate for departure. See
Koon v. United States, 518 U.S. 81, ___, 116 S. Ct. 2035, 2045
(1996).
The question remains, however, whether a reviewing court
should ever imply a departure. It is well-established that
district courts must explain their reasons for departing from the
Guidelines. See, e.g., United States v. Lambert, 984 F.2d 658, 663
(5th Cir. 1993) (en banc). It follows that when the district court
decides to depart from the Guidelines, it must state that it is in
fact departing.
The government may be correct that the district court intended
to depart upward when it applied consecutive sentences. Be that as
it may, this Court must insist on a plain statement of departure
3
The government also attributes to the district court the
following reasons for departure: Defendant’s profit from his
criminal acts (which would merit an enhanced sentence under the
newly revised 8 U.S.C. § 1324); numerous episodes and a high number
of aliens transported; and the recent amendment to U.S.S.G. § 2L1.1
which raises the base offense level from 9 to 12 and raises the
adjustment for transportation of 6 to 24 aliens from a two-level
increase to a three-level increase.
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and supporting reasons, especially in light of the ambiguity that
may otherwise arise in appeals just like this one. Assuming for
the sake of argument that the government has correctly discerned
the intention of the district court, the burden of providing a more
definite statement on remand will be slight.
III.
Because the district court either misapplied the Guidelines or
failed to explain that Defendant’s sentence was based on an upward
departure from the Guidelines, we VACATE Defendant’s sentence and
REMAND this case for resentencing. If an upward departure is
contemplated by the district court on remand, the court must
provide reasonable notice specifying the grounds for departure.
See FED. R. CRIM. P. 32; United States v. Burns, 501 U.S. 129, 138-39
(1991). Should departure ultimately factor into Defendant’s
sentence on remand, the district court is instructed to make a
record of such determination and the reasons for it.
VACATED and REMANDED WITH INSTRUCTIONS.
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