FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 07-30199 and
Plaintiff-Appellee, 07-30212
v. D.C. Nos.
ERNESTO GALLEGOS,
Defendant-Appellant.
3:06-CR-02188-
WFN,
3:06-CR-02026-
WFN
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted
February 2, 2010—Seattle, Washington
Filed July 30, 2010
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Michael W. Mosman,* District Judge.
Opinion by Judge Mosman
*The Honorable Michael W. Mosman, District Judge for the District of
Oregon, sitting by designation.
11033
11036 UNITED STATES v. GALLEGOS
COUNSEL
Karen S. Lindholdt, P.S., Spokane, Washington, for defen-
dant-appellant Ernesto Gallegos.
James A. McDevitt, United States Attorney, and Jane Kirk
(argued), Assistant United States Attorney, Yakima, Wash-
ington, for plaintiff-appellee United States of America.
OPINION
MOSMAN, District Judge:
Defendant–appellant Ernesto Gallegos appeals his two
criminal sentences, imposed at the same time for separate
offenses. The sentences arose from Mr. Gallegos’s entry of
two guilty pleas—one for illegal reentry, and the other for
escape while awaiting sentencing on the first charge. On
appeal, Mr. Gallegos argues that the district court’s imposi-
tion of a partially concurrent and partially consecutive sen-
tence for the escape charge violates 18 U.S.C. § 3584. He also
argues that the district court’s refusal to offer a reduction for
acceptance of responsibility on the illegal reentry charge in
combination with an enhancement for obstruction of justice
resulted in impermissible double counting. We have jurisdic-
tion under 28 U.S.C. § 1291 and affirm.
BACKGROUND
Mr. Gallegos was arrested for violating 8 U.S.C. § 1326,
reentering the country illegally, on July 13, 2006. On October
12, 2006, Mr. Gallegos pleaded guilty to the illegal reentry
charge in case CR-06-2026.
On or about November 29, 2006, while awaiting sentencing
on the illegal reentry charge, Mr. Gallegos escaped from fed-
UNITED STATES v. GALLEGOS 11037
eral custody. In a December 12, 2006 indictment, the Govern-
ment charged Mr. Gallegos with escape, in violation of 18
U.S.C. § 751(a). Following his January 8, 2007 arrest, Mr.
Gallegos pleaded guilty to the escape charge in case CR-06-
2188 on March 21, 2007.
The district court sentenced Mr. Gallegos for both the ille-
gal reentry and escape charges on May 30, 2007. In the illegal
reentry case, the court declined to grant a reduction for accep-
tance of responsibility and also imposed a two-level enhance-
ment for obstruction of justice, resulting in a U.S. Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) range of 37-46
months. The district court made no adjustments in the escape
case, identifying Mr. Gallegos’s sentencing range as 33-41
months on that charge. At sentencing, Mr. Gallegos requested
completely concurrent sentences, while the Government
requested consecutive sentences totaling 79 months.
The district court reviewed and discussed Mr. Gallegos’s
lengthy criminal history before issuing a sentence, noting the
court’s obligation “to create a sentence that is sufficient but
not excessive.” At the time of sentencing, Mr. Gallegos had
previously been deported five times, received two assault con-
victions, and escaped from custody on three occasions. The
court explained that “[t]he seriousness of your conduct, as
indicated by your criminal history, suggests that you have
total disregard for the law, that punishment doesn’t deter your
conduct.”
The district court then imposed a 40-month sentence in the
illegal reentry case. The court also imposed a 40-month sen-
tence in the escape case, with 20 months to be served concur-
rently with, and 20 months to be served consecutive to, the
illegal reentry sentence.
STANDARD OF REVIEW
Mr. Gallegos did not object below to the district court’s
imposition of the partially concurrent and partially consecu-
11038 UNITED STATES v. GALLEGOS
tive sentence, nor did he raise the double counting argument.
We therefore review the district court’s sentences for plain
error. See United States v. Guzman-Mata, 579 F.3d 1065,
1068 (9th Cir. 2009) (reviewing for plain error because defen-
dant did not object to sentencing enhancement at time of sen-
tencing); see also United States v. Ameline, 409 F.3d 1073,
1078 (9th Cir. 2005) (en banc) (explaining that an unpreser-
ved constitutional argument is generally reviewed for plain
error). “Plain error is ‘(1) error, (2) that is plain, and (3) that
affects substantial rights.’ ” Id. (quoting United States v. Cot-
ton, 535 U.S. 625, 631 (2002)).
DISCUSSION
I. Partially Concurrent and Partially Consecutive
Sentences
On appeal, Mr. Gallegos argues that the language of 18
U.S.C. § 3584, specifically the phrase “may run concurrently
or consecutively,” plainly prohibits the district court’s par-
tially concurrent and partially consecutive sentence. Under his
reading of the statute, multiple terms of imprisonment
imposed at the same time must be wholly concurrent or
wholly consecutive.
“The starting point for our interpretation of a statute is
always its language.” United States v. Fei Ye, 436 F.3d 1117,
1120 (9th Cir. 2006) (quoting Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 739 (1989)). We must first
determine whether the phrase “may run concurrently or con-
secutively” is “plain and unambiguous.” United States v.
Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008) (quoting Robin-
son v. Shell Oil Co., 519 U.S. 337, 340 (1997)). “The statu-
tory language is interpreted by reference ‘to the language
itself, the specific context in which that language is used, and
the broader context of the statute as a whole.’ ” Id. (quoting
Robinson, 519 U.S. at 341).
UNITED STATES v. GALLEGOS 11039
“If the plain language of a statute renders its meaning rea-
sonably clear, [we] will not investigate further unless its
application leads to unreasonable or impracticable results.”
Fei Ye, 436 F.3d at 1120 (quoting United States v. Stephens,
424 F.3d 876, 882 (9th Cir. 2005)). “When a statute does not
define a term, we generally interpret that term by employing
the ordinary, contemporary, and common meaning of the
words that Congress used.” United States v. Iverson, 162 F.3d
1015, 1022 (9th Cir. 1998).
If, on the other hand, the language in § 3584 is ambiguous,
“we may use canons of construction, legislative history, and
the statute’s overall purpose to illuminate Congress’s intent.”
Ileto v. Glock, Inc., 565 F.3d 1126, 1133 (9th Cir. 2009)
(quoting Jonah R. v. Carmona, 446 F.3d 1000, 1005 (9th Cir.
2006)); Merkel v. Comm’r, 192 F.3d 844, 848 (9th Cir. 1999).
A. Plain Language
[1] Section 3584 provides:
(a) Imposition of concurrent or consecutive terms.—
If multiple terms of imprisonment are imposed on a
defendant at the same time, or if a term of imprison-
ment is imposed on a defendant who is already sub-
ject to an undischarged term of imprisonment, the
terms may run concurrently or consecutively, except
that the terms may not run consecutively for an
attempt and for another offense that was the sole
objective of the attempt. Multiple terms of imprison-
ment imposed at the same time run concurrently
unless the court orders or the statute mandates that
the terms are to run consecutively. Multiple terms of
imprisonment imposed at different times run consec-
utively unless the court orders that the terms are to
run concurrently.
(b) Factors to be considered in imposing concurrent
or consecutive terms.—The court, in determining
11040 UNITED STATES v. GALLEGOS
whether the terms imposed are to be ordered to run
concurrently or consecutively, shall consider, as to
each offense for which a term of imprisonment is
being imposed, the factors set forth in section
3553(a).
18 U.S.C. § 3584 (emphasis added).
[2] We first look to the language itself. See Fei Ye, 436
F.3d at 1120. The phrase “may run concurrently or consecu-
tively” does not expressly authorize or prohibit the middle
ground taken by the district court in this case, nor does § 3584
define the term “or.” The ordinary and contemporary meaning
of the term is sometimes “either . . . or . . . but not both” and
other times “and/or.” We have consistently defined “or” as
indicating separate alternatives. See Azure v. Morton, 514
F.2d 897, 900 (9th Cir. 1975); see also Bunker Hill Co. Lead
and Zinc Smelter v. EPA, 658 F.2d 1280, 1283 n.1 (9th Cir.
1981). However, this definition does not answer the question
whether overlapping sentences are authorized under the stat-
ute.
[3] Because neither the statute nor our established defini-
tion of the word “or” specifically addresses the circumstances
presented, we next examine the language in its specific con-
text. See Youssef, 547 F.3d at 1093. Section 3584(a) accom-
plishes two goals. First, it establishes a set of default rules to
avoid uncertainty after sentencing, and second, it grants dis-
trict court judges the discretion to alter those default rules
under the proper circumstances. See §§ 3584(a)-(b), 3553(a).
In context, we read this grant of permissive discretion, “may
run concurrently or consecutively,” as allowing the district
court to utilize the entire spectrum of possibility when sen-
tencing for two offenses at the same time—wholly concur-
rent, wholly consecutive, or anything in between, unless
otherwise prohibited by the statute. The court is, of course,
limited in circumstances where the two offenses are attempt
and another offense that was the sole objective of the attempt,
UNITED STATES v. GALLEGOS 11041
and also by the factors set forth in § 3553(a). See § 3584(a)-
(b). We therefore conclude that the plain language of
§ 3584(a) authorized the district court’s imposition of Mr.
Gallegos’s partially concurrent and partially consecutive sen-
tence for the escape charge, and the court did not commit
plain error.
B. Legislative History and Sentencing Guidelines
While we need not rely on legislative history to discern the
meaning of the statute, it nevertheless reinforces the conclu-
sion above.
The Senate Committee Report for the Comprehensive
Crime Control Act of 1984, which included § 3584, describes
the adoption of the default rules and explains their intended
use “in the cases in which the court is silent as to whether sen-
tences are consecutive or concurrent, in order to avoid litiga-
tion on the subject.” S. Rep. No. 98-225, at 127 (1983), as
reprinted in 1984 U.S.C.C.A.N. 3182, 3310. The Report also
explains that the sentencing guidelines often specify some
incremental penalty when two sentences are imposed for simi-
lar offenses—“for example, if the term of imprisonment rec-
ommended in the guidelines for one offense is two years, the
guidelines might recommend a sentence of two and a half or
three years if the defendant was convicted of three or four
such offenses.” Id.
If, on the other hand, “the defendant was being sentenced
at one time for two entirely different offenses committed at
different times, the judge might think that adding the guide-
lines sentences for the offenses together was appropriate, and
specify fully consecutive sentences rather than overlapping
ones.” Id. This language evidences Congress’s approval of
“overlapping” sentences for different offenses committed at
different times, while further allowing district courts to
impose “fully consecutive sentences” when appropriate.
11042 UNITED STATES v. GALLEGOS
Similarly, the Report explains, “[t]he Committee believes
that [§ 3584(a)] when read with the revised version of 28
U.S.C. [§ ] 994(L) will lead to carefully considered determi-
nations as to the appropriateness of concurrent, consecutive,
or overlapping sentences in cases of multiple offenses.” Id. at
165.
[4] The Guidelines also shed light on the phrase at issue.
Section 5G1.3 of the Guidelines is titled “Imposition of a Sen-
tence on a Defendant Subject to an Undischarged Term of
Imprisonment.” See U.S.S.G. § 5G1.3 (2007).1 The Policy
Statement in section 5G1.3(c) of the Guidelines states: “In
any other case involving an undischarged term of imprison-
ment, the sentence for the instant offense may be imposed to
run concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to achieve a rea-
sonable punishment for the instant offense.” Id. (emphasis
added). This language indicates that Congress intended the
phrase “may run concurrently or consecutively,” as used in
§ 3584(a), to encompass a partially concurrent or partially
consecutive sentence in appropriate cases. The legislative his-
tory of § 3584 and Section 5G1.3 of the Guidelines thus fur-
ther supports the district court’s imposition of Mr. Gallegos’s
partially concurrent and partially consecutive sentence for the
escape charge.
II. Impermissible Double Counting
Mr. Gallegos also argues that the district court’s refusal to
offer a reduction for acceptance of responsibility on the illegal
reentry charge in combination with an enhancement for
1
The phrase at issue, “may run concurrently or consecutively,” applies
to multiple terms of imprisonment imposed at the same time (Mr. Galle-
gos’s situation) and also to the imposition of a sentence on a defendant
who is subject to a separate, undischarged term of imprisonment. See
§ 3584(a).
UNITED STATES v. GALLEGOS 11043
obstruction of justice resulted in impermissible double count-
ing.2
[5] “Impermissible double counting occurs when one part
of the Guidelines is applied to increase a defendant’s punish-
ment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guide-
lines.” United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir.
2008) (quoting United States v. Holt, 510 F.3d 1007, 1011
(9th Cir. 2007)). But it is not always impermissible to enhance
(or fail to reduce) the base offense level multiple times for the
same criminal act: “[I]t is sometimes authorized and intended
by the Sentencing Guidelines when each invocation of the
behavior serves a unique purpose under the Guidelines.” Id.
(quoting Holt, 510 F.3d at 1011).
Mr. Gallegos argues, and we recognize, that the district
court refused to reduce his sentence for acceptance of respon-
sibility based primarily on his escape from federal custody.
The court also enhanced his sentence for obstructing justice
based on the same conduct. While this combination represents
two applications of the Guidelines arising out of the same
conduct, we nevertheless find the combination permissible
because “each invocation of the behavior serves a unique pur-
pose.” Id.
[6] On their face, the two adjustments at issue here serve
separate and distinct purposes. A reduction for acceptance of
responsibility relates to a defendant’s remorse, his assistance
in the investigation or prosecution of his misconduct, or pre-
serving government resources required to prepare for trial.
See U.S.S.G. § 3E1.1. On the other hand, an enhancement for
obstruction focuses on a defendant’s conduct in obstructing or
impeding the process by which the government administers
justice. See U.S.S.G. § 3C1.1.
2
Technically speaking, the phrase “double counting” refers to duplica-
tive enhancements. But the same logic applies here to the failure to grant
a reduction and a related enhancement.
11044 UNITED STATES v. GALLEGOS
The Guidelines specifically take into account the distinct
nature of these two adjustments and the interplay between
them. Section 3E1.1 of the Guidelines, addressing acceptance
of responsibility, states “[i]f the defendant clearly demon-
strates acceptance of responsibility for his offense, decrease
the offense level by 2 levels.” Application Note 4, however,
instructs that “[c]onduct resulting in an enhancement under
§ 3C1.1 (Obstructing or Impeding the Administration of Jus-
tice) ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct.” U.S.S.G. § 3E1.1
cmt. n.4.
CONCLUSION
[7] We hold that the district court did not commit plain
error in imposing a partially concurrent and partially consecu-
tive sentence. We also hold there was no plain error in declin-
ing to offer a reduction for acceptance of responsibility on the
illegal reentry charge while also enhancing Mr. Gallegos’s
sentence based on his obstruction of justice. We affirm the
district court’s sentences.
AFFIRMED.