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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 3, 2002 Decided August 1, 2003
No. 01-3067
& No. 01-3099
UNITED STATES OF AMERICA,
APPELLEE
v.
SHECHEM LAFAYETTE,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 88cr00254–01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
Shechem Lafayette filed a pro se supplemental brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher and Roy W.
McLeese III, Assistant U.S. Attorneys. Mary-Patrice
Brown, Assistant U.S. Attorney, entered an appearance.
Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: In Apprendi v. New Jersey, the
Supreme Court held that, ‘‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.’’ 530 U.S.
466, 490 (2000). Appellant Shechem Lafayette, who was
convicted of multiple narcotics and firearms charges, con-
tends that the 292–month sentence he received on one count
of possession with intent to distribute 50 grams or more of
cocaine base exceeds the maximum permissible sentence un-
der Apprendi by 52 months. We conclude that any Apprendi
error in the sentence imposed on that single count was
harmless, because the United States Sentencing Guidelines
would in any event have required the district court to run the
sentences on his multiple counts consecutively until the sum
yielded the same 292 months.
I
On November 9, 1988, a jury of the United States District
Court for the District of Columbia found Lafayette guilty on
all counts of a nine-count indictment charging him with
federal narcotics and firearms violations.1 On January 27,
1 The nine counts were: (1) conspiracy to distribute and to
possess with intent to distribute cocaine base, in violation of 21
U.S.C. §§ 846 and 841(a); (2) conspiracy to distribute and to
possess with intent to distribute marijuana, in violation of 21 U.S.C.
§§ 846 and 841(a); (3) conspiracy to use and carry firearms during
and in relation to a drug trafficking offense, in violation of 18 U.S.C.
§§ 371 and 924(c); (4) possession with intent to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. § 841(a) and
(b)(1)(A)(iii); (5) possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a); (6) using and carrying a firearm
3
1989, the district court sentenced Lafayette to a total of 410
months’ imprisonment. The court imposed 290–month terms
for each of three convictions relating to cocaine, one of which
(Count Four) involved 50 grams or more of cocaine base; 60–
month terms for each of three convictions relating to marijua-
na; and 60–month terms for each of three counts relating to
using and carrying a firearm during and in relation to a drug
trafficking offense. The court ordered that all of the sen-
tences run concurrently, with the exception of two of the 60–
month firearms sentences, which were to run consecutively to
each other and to one of the 290–month sentences.2 Lafay-
ette filed a direct appeal, and on February 22, 1990, we
affirmed his convictions. United States v. Lafayette, 896 F.2d
599 (D.C. Cir. 1990) (table). Lafayette did not file a petition
for a writ of certiorari, and his convictions became final no
later than May 23, 1990, the date on which the time for filing
such a petition expired. See Clay v. United States, 123 S. Ct.
1072, 1076 (2003); United States v. Hicks, 283 F.3d 380, 387
(D.C. Cir. 2002).3
Five years later, on June 15, 1995, Lafayette mounted a
collateral attack on his sentence, moving to vacate and/or
amend it pursuant to 28 U.S.C. § 2255. On August 22, 1996,
the district court denied all but four of the numerous claims
that Lafayette had raised by that date, either in his June
1995 motion or in later ‘‘supplements.’’ On September 30,
during and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c); (7) another charge of possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a); (8) posses-
sion with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a); and (9) another charge of using and carrying a firearm
during and in relation to a drug trafficking offense, in violation of 18
U.S.C. § 924(c).
2 In 1997, the district court granted the government’s motion to
correct clerical errors in the above-described sentence, increasing
Lafayette’s total sentence to 470 months. Lafayette did not appeal.
3 Lafayette filed a motion for a new trial soon after he was
convicted, alleging ‘‘newly discovered evidence’’ of police miscon-
duct. See FED. R. CRIM. P. 33. The district court denied Lafay-
ette’s motion, and this court affirmed. United States v. Lafayette,
983 F.2d 1102, 1103 (D.C. Cir. 1993).
4
1999, the district court denied the remaining four claims, as
well as all of the additional claims that Lafayette had filed in
the interim, with one exception: in light of the Supreme
Court’s then-recent ruling in Jones v. United States, 526 U.S.
227 (1999), the court directed the government to respond to
Lafayette’s argument that the court had ‘‘erred in attributing
a drug quantity and type to Lafayette at sentencing.’’ Unit-
ed States v. Lafayette, No. 88cr00254–01, at 11 (D.D.C. Sept.
30, 1999). Furthermore, on the basis of the Supreme Court’s
intervening decision in Bailey v. United States, 516 U.S. 137
(1995)—which defined the meaning of ‘‘using’’ a firearm dur-
ing and in relation to a drug trafficking offense, in violation of
18 U.S.C. § 924(c)—the court granted Lafayette’s and the
government’s joint motion to vacate two of the defendant’s
firearms convictions. As a result of that vacatur, the court
scheduled a hearing to resentence the defendant.
On June 26, 2000, before the resentencing took place, the
Supreme Court decided Apprendi v. New Jersey, 530 U.S.
466 (2000). In July 2000, Lafayette filed a ‘‘Motion for
Release from Further Incarceration’’ based on Apprendi.
The district court denied the motion on May 23, 2001. The
court ruled that Apprendi was not retroactively applicable to
cases on collateral review; that even if it were, Lafayette had
procedurally defaulted by not raising the claim on direct
appeal; and that he could not show ‘‘ ‘cause and actual
prejudice’ TTT for excusing such default.’’ United States v.
Lafayette, No. 88cr00254–01, at 6–7 (D.D.C. May 23, 2001).4
On August 6, 2001, the district court resentenced Lafayette
in view of the vacatur of the two firearms counts.5 The court
sentenced Lafayette to a total of 292 months’ imprisonment,
the bottom of the range determined by the applicable United
4 The court also denied Lafayette’s motion for a downward
sentencing departure premised on his status as a deportable alien
and on his good behavior during his incarceration.
5 One effect of the vacatur of the firearms counts was to
increase the guidelines offense level of the remaining counts, pursu-
ant to U.S.S.G. § 2D1.1. See United States v. Morris, 116 F.3d
501, 503 (D.C. Cir. 1997).
5
States Sentencing Guidelines (U.S.S.G.). The court imposed
a 292–month sentence for Lafayette’s conviction on Count
Four, the count that charged him with possession with intent
to distribute 50 grams or more of cocaine base. The court
also prescribed sentences of 240 months for each of the other
two cocaine convictions, and 60 months for each of the three
marijuana convictions and the surviving firearms conspiracy
conviction, all to be served concurrently.
Lafayette filed notices of appeal both from the denial of his
§ 2255 motion and from his new sentence. With respect to
the former, this court directed the district court to determine
in the first instance whether a certificate of appealability
should be issued. See 28 U.S.C. § 2253(c); Slack v. McDan-
iel, 529 U.S. 473, 478 (2000); United States v. Saro, 252 F.3d
449, 452 (D.C. Cir. 2001). Although the district court de-
clined to issue one, this court subsequently granted a certifi-
cate that was limited to the Apprendi issue, and then consoli-
dated the two appeals.
II
The ‘‘lengthy and tortured procedural history’’ of this case,
Appellant’s Br. at 1, gives rise to a host of questions concern-
ing both Lafayette’s right to assert an Apprendi claim at this
late stage and the standard of review that would govern any
claim that he may assert. We describe some of these issues
in the next four paragraphs.
The government contends that Lafayette may not make
any claim at all under Apprendi for two reasons. First, it
argues that Apprendi cannot be applied retroactively on
collateral review. Under Teague v. Lane, ‘‘new constitutional
rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced,’’ unless the new rule ‘‘places certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe,’’ or constitutes a
‘‘watershed rule[ ] of criminal procedure’’ implicating the fun-
damental fairness and accuracy of the criminal proceeding.
489 U.S. 288, 310, 311 (1989) (citations, internal quotation
marks, and alterations omitted). Lafayette responds that
6
Teague is inapplicable to Apprendi because, inter alia, Ap-
prendi did announce such a watershed rule.
The government disagrees, but also offers a second reason
for Apprendi’s inapplicability: Lafayette’s Apprendi motion,
it asserts, is barred by the one-year limitations period of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub L. No. 104–132, 110 Stat. 1214, codified in
relevant part at 28 U.S.C. § 2255 ¶ 6(1). Lafayette counters
that the relevant AEDPA deadline is not ¶ 6(1) of § 2255, but
¶ 6(3)—which permits a prisoner to file a motion within a year
of ‘‘the date on which the right asserted was initially recog-
nized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.’’ 28 U.S.C. § 2255
¶ 6(3). The government parries by arguing that ¶ 6(3) is
relevant only when the Supreme Court has made a right
retroactively applicable, which the Court has not done with
respect to Apprendi. See Hicks, 283 F.3d at 389 (noting the
issue but not deciding it). Lafayette ripostes with the claim
that ¶ 6(3) permits this court to make the retroactivity ruling
by applying the principles of Teague—thus returning us to
the issue that we discussed in the preceding paragraph.
Drawing another, independent line of defense, the govern-
ment contends that, even if Lafayette’s Apprendi claim sur-
vives both Teague and AEDPA, it is doomed because Lafay-
ette did not raise it on direct appeal, and because he cannot
satisfy the test described in Bousley v. United States:
‘‘Where a defendant has procedurally defaulted a claim by
failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either
‘cause’ and actual ‘prejudice,’ or that he is ‘actually inno-
cent.’ ’’ 523 U.S. 614, 622 (1998) (citations omitted). Need-
less to say, Lafayette disagrees that Bousley precludes his
Apprendi claim, arguing that he had ‘‘cause’’ for not raising
such a claim during his trial or on direct appeal because it
would have been ‘‘novel’’ to do so that many years before the
Supreme Court decided Apprendi, id. at 622, and that the 52
additional months he must serve under Count Four demon-
strates the necessary ‘‘prejudice.’’
7
Lafayette also seeks to side-step all of the government’s
defenses by arguing that, even if a collateral attack under
Apprendi were partially or wholly barred by Teague,
AEDPA, or Bousley, his Apprendi challenge still would not
fail because it is not properly characterized as collateral.
Rather, he contends that when the district court vacated his
firearms convictions following Bailey and scheduled a resen-
tencing on the remaining counts, his entire ‘‘sentence pack-
age’’ was reopened and the court ‘‘was required to apply the
law in effect at the time of the new sentencing.’’ Appellant’s
Br. at 10.6 In essence, Lafayette argues that the district
court should have treated the resentencing as if it were his
initial sentencing, and that we should treat this appeal as if it
were a direct appeal. On that theory, we would review the
denial of Lafayette’s Apprendi claim either (1) for plain error,
if we deem the claim untimely because it was not raised at
trial; or (2) for harmless error, if we regard the assertion of
the claim at the resentencing as sufficient. See FED. R. CRIM.
P. 52; United States v. Olano, 507 U.S. 725, 731–37 (1993).
Although the parties would like us to untie each of these
knots, Lafayette’s last point permits us to cut through them
all. Even if the appellant were correct as to all of the
arguments just discussed, he concedes that we may not set
aside his sentence if the government demonstrates that any
Apprendi error that occurred was harmless—i.e., that it did
not affect his substantial rights. See FED. R. CRIM. P. 52(a);
Olano, 507 U.S. at 734–35. And because we conclude in the
following Part that any such error was in fact harmless, we
have no need to pursue these antecedent questions any
further.7
6 But see Dahler v. United States, 259 F.3d 763, 765 (7th Cir.
2001) (‘‘[A] belated challenge to events that precede a resentencing
must be treated as a collateral attack on the original conviction and
sentence, rather than as an initial challenge to the latest sen-
tence.’’).
7 In Caspari v. Bohlen, the Court instructed: ‘‘A threshold
question in every habeas case TTT is whether the court is obligated
8
III
The only challenge Lafayette raises on this appeal is to the
sentence the district court imposed for his conviction on
Count Four of his indictment.8 That count charged a viola-
tion of 21 U.S.C. § 841(a) and (b)(1)(A)(iii), which authorizes a
40–year (480–month) maximum sentence for possession with
intent to distribute 50 grams or more of cocaine base. The
district court sentenced Lafayette to a 292–month term of
imprisonment on the basis of that charge.
Under the rule announced in Apprendi, ‘‘any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’’ 530 U.S. at 490. In United
States v. Fields, this circuit held that ‘‘[i]n light of Apprendi,
it is now clear that, in drug cases under 21 U.S.C. §§ 841 and
846, before a defendant can be sentenced to any of the
progressively higher statutory maximums that are based on
progressively higher quantities of drugs specified in subsec-
tions 841(b)(1)(A) or (B), the Government must state the drug
type and quantity in the indictment, submit the required
evidence to the jury, and prove the relevant drug quantity
beyond a reasonable doubt.’’ 242 F.3d 393, 396 (D.C. Cir.
2001) (‘‘Fields I’’), aff’d and amended on reh’g, 251 F.3d 1041,
1043 (D.C. Cir. 2001) (‘‘Fields II’’). When those requirements
are not met, the statutory maximum is instead set by the only
subsection of § 841(b) for which drug quantity is not an
element: § 841(b)(1)(C), which authorizes a maximum sen-
to apply the Teague rule to the defendant’s claimTTTT [I]f the
State TTT argue[s] that the defendant seeks the benefit of a new
rule of constitutional law, the court must apply Teague before
considering the merits of the claim.’’ 510 U.S. 383, 389 (1994)
(second emphasis added). Because our disposition does not require
us to consider ‘‘the merits’’ of Lafayette’s Apprendi claim, this
instruction is not applicable and we need not resolve the Teague
issue. See Hicks, 283 F.3d at 389 (similarly declining to decide
whether Apprendi applies retroactively for purposes of a collateral
challenge).
8 The defendant challenges only his sentence and not his con-
viction.
9
tence of 20 years (240 months). See United States v. Webb,
255 F.3d 890, 897, 900 (D.C. Cir. 2001).
Although Lafayette’s indictment did charge him with pos-
session with intent to distribute 50 grams or more of cocaine
base, the district court did not instruct the jury that, to
convict Lafayette, it had to find that the amount of the drug
involved in his offense was at least 50 grams. On this basis,
Lafayette contends that the sentence he received on Count
Four—292 months—exceeded by 52 months the maximum
sentence that the court could lawfully impose under Appren-
di. The government does not contest the point, but argues
that even if the 292–month sentence on Count Four violated
Apprendi, Lafayette suffered no prejudice because he would
have received the same total sentence in the absence of the
alleged error. We agree.9
Lafayette does not dispute that, based on the weight of
cocaine base involved in his offense as well as other required
adjustments, 292 months was well within the sentencing
range prescribed by the Sentencing Guidelines. See 2001
Presentence Invest. Rep. ¶¶ 21–26. Nor does he contend that
the sentences the court imposed on his other six counts of
conviction were erroneous. These concessions lead us direct-
ly to Guideline § 5G1.2(d), entitled ‘‘Sentencing on Multiple
Counts of Conviction,’’ which instructs district courts on how
to structure a sentence under such circumstances:
If the sentence imposed on the count carrying the high-
est 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
9 See Olano, 507 U.S. at 734 (explaining that normally for an
error to ‘‘affect substantial rights’’ it ‘‘must have been prejudicial:
It must have affected the outcome of the district court proceedings’’
(alteration omitted)); Webb, 255 F.3d at 898 (holding that where the
lawful application of the Sentencing Guidelines would result in the
same sentence received as a result of an Apprendi error, the
defendant’s substantial rights are unaffected).
10
counts shall run concurrently, except to the extent other-
wise required by law.
U.S.S.G. MANUAL § 5G1.2(d) (emphasis added). Applying the
clear language of this guideline, even if the sentence on Count
Four were capped by Apprendi at 240 months, the district
court would have been compelled to run or ‘‘stack’’ the
sentences imposed on his multiple counts consecutively until
the sum reached the total punishment of 292 months—the
minimum of the applicable guidelines range.10 This could
have been accomplished, without exceeding the statutory
maximum on any count, by running any one of Lafayette’s
240–month sentences consecutively with his sentence on any
other count.
Lafayette does not maintain that ‘‘stacking’’ his multiple
sentences in this fashion would violate Apprendi. See Fields
II, 251 F.3d at 1043–44 (‘‘Apprendi does not apply to en-
hancements under the Sentencing Guidelines when the result-
ing sentence remains within the statutory maximum.’’).11
10 Application Note 1 to § 5G1.2 explains that the ‘‘total punish-
ment’’ referred to in the section is ‘‘determined’’ by calculating ‘‘the
adjusted combined offense level and the Criminal History Catego-
ry’’ under the guidelines. U.S.S.G. MANUAL § 5G1.2, cmt. n.1; see
United States v. Velasquez, 304 F.3d 237, 241 (3d Cir. 2002) (‘‘Total
punishment is calculated by combining the factors in the relevant
sections of the Guidelines without respect to maximum statutory
sentences.’’ (citing U.S.S.G. MANUAL § 3D1.5)).
11 See also United States v. White, 240 F.3d 127, 135 (2d Cir.
2001); United States v. Buckland, 289 F.3d 558, 570–71 (9th Cir.
2002) (en banc) (holding that ‘‘Apprendi is not implicated’’ when
‘‘not one of the stacked consecutive sentences exceeds the statutory
maximum for that count’’). In Apprendi itself, the Supreme Court
said that the possibility that the state could have employed consecu-
tive sentencing to achieve a sentence in excess of the statutory
maximum on a single count was not relevant to the ‘‘narrow issue’’
of whether the sentence imposed on ‘‘that count’’ was constitutional.
530 U.S. at 474. In the instant case, the government does not
dispute that Apprendi, if applicable, renders the sentence imposed
on Count Four unconstitutional; the only question is whether that
11
Rather, he argues that stacking is not mandatory; that were
we to return the case to the district court, it might decide to
set his multiple sentences to run concurrently rather than
consecutively; and that, as a consequence, his total prison
term might amount to only 240 months—the highest statuto-
ry sentence that could be imposed on any individual count.
Lafayette recognizes that in tendering this argument he is
‘‘swimming against the legal current,’’ Appellant’s Br. at 6,
and indeed he is. All of the circuits that have addressed the
issue, with one possible exception, have held that (where
applicable) § 5G1.2(d) requires the imposition of consecutive
sentences, and that such stacking can render an Apprendi
error with respect to any individual count nonprejudicial.12
We agree with our sister circuits. Guideline § 5G1.2(d)’s
command that multiple sentences ‘‘shall’’ run consecutively in
the circumstances of this case leaves no room for district
court discretion.13 The application note to Guideline § 5G1.2
error prejudiced Lafayette. See United States v. Hernandez, 330
F.3d 964, 983 n.13 (7th Cir. 2003); see also White, 240 F.3d at 135.
12 See United States v. Outen, 286 F.3d 622, 639–40 (2d Cir.
2002); United States v. Stokes, 261 F.3d 496, 500–01 (4th Cir. 2001);
United States v. Garcia, 322 F.3d 842, 845–46 (5th Cir. 2003);
United States v. Page, 232 F.3d 536, 544–45 (6th Cir. 2000); United
States v. Hernandez, 330 F.3d 964, 982–84 (7th Cir. 2003); United
States v. Diaz, 296 F.3d 680, 683–85 (8th Cir. 2002) (en banc);
United States v. Buckland, 289 F.3d 558, 570–71 (9th Cir. 2002) (en
banc); United States v. Lott, 310 F.3d 1231, 1242–43 (10th Cir.
2002); United States v. Davis, 329 F.3d 1250, 1253–54 (11th Cir.
2003). Although the Third Circuit held to the contrary in Velas-
quez, 304 F.3d at 243–45, it recently took the same position as the
other circuits in an opinion that did not mention Velasquez. See
United States v. Jenkins, 333 F.3d 151, 155 (3d Cir. 2003). We
further note that, although some of the above-cited cases involved
the plain rather than harmless error standard, the meaning of
‘‘prejudice’’ under each standard is the same. See Olano, 507 U.S.
at 734.
13 See cases cited supra note 12; cf. United States v. Hall, 326
F.3d 1295, 1300 (D.C. Cir. 2003) (holding that consecutive terms are
compelled by § 5G1.3(a), which provides that ‘‘the sentence for the
12
is equally clear and equally mandatory: ‘‘If no count carries
an adequate statutory maximum, consecutive sentences are to
be imposed to the extent necessary to achieve the total
punishment.’’ U.S.S.G. MANUAL § 5G1.2, cmt. n.1 (emphasis
added). Hence, it would serve no purpose to remand the case
for yet another resentencing, as doing so would only yield the
same total punishment: a sentence of 292 months’ incarcera-
tion.
Lafayette contends that, notwithstanding the mandatory
nature of the guidelines, the relevant sentencing statutes
confer discretion on the district courts. He points first to 18
U.S.C. § 3584, which states:
(a) Imposition of concurrent or consecutive terms.—If
multiple terms of imprisonment are imposed on a defen-
dant at the same time, TTT the terms may run concur-
rently or consecutivelyTTTT
(b) Factors to be considered in imposing concurrent or
consecutive terms.—The court, in determining 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).
Id. (emphasis added). Lafayette discerns indicia of discretion
in both the statute’s statement that multiple terms ‘‘may’’ run
concurrently or consecutively, and in its instruction that the
court shall ‘‘consider’’ the factors set forth in § 3553(a). The
latter section states:
(a) Factors to be considered in imposing a sentence.—
TTT The court, in determining the particular sentence to
be imposed, shall consider TTT (4) the kinds of sentence
instant offense shall be imposed to run consecutively to the undis-
charged term of imprisonment’’ if the offense was committed while
the defendant was, inter alia, on furlough (emphasis added)); Unit-
ed States v. Monsanto, 491 U.S. 600, 607 (1989) (declaring that, with
reference to a statute providing that a person convicted of specified
offenses ‘‘shall’’ forfeit property, ‘‘Congress could not have chosen
stronger words to express its intent that forfeiture be mandatory’’).
13
and the sentencing range established for TTT the applica-
ble category of offense committed by the applicable
category of defendant as set forth in the guidelines TTT
issued by the Sentencing Commission pursuant to section
994(a)(1)TTTT
Id. § 3553(a) (emphasis added). Reading this section as he
reads § 3584—i.e., to require the district court to do nothing
more than ‘‘consider’’ the Sentencing Guidelines—Lafayette
concludes that the district court retains discretion to ‘‘consid-
er the ramifications of the sentencing guidelines and to
fashion a just punishment.’’ Reply Br. at 4.
But following the defendant down the path of his logic
would lead to the conclusion that all of the Sentencing Guide-
lines—not merely those relating to concurrent and consecu-
tive sentencing, since § 3553(a) applies to all sentencing
decisions—are mere advisories for sentencing judges to con-
sider in the exercise of their discretion. That conclusion, of
course, is plainly incorrect. As the Supreme Court said in
Mistretta v. United States, the Sentencing Reform Act of
1984 ‘‘makes the Sentencing Commission’s guidelines binding
on the courtsTTTT’’ 488 U.S. 361, 367 (1989) (emphasis add-
ed) (citing 18 U.S.C. § 3553(a) and (b)); see Koon v. United
States, 518 U.S. 81, 92 (1996) (‘‘A district judge now must
impose on a defendant a sentence falling within the range of
the applicable GuidelineTTTT’’ (emphasis added)); U.S.S.G.
MANUAL ch. 1, pt. A.2, intro. cmt. (‘‘Pursuant to the [Sentenc-
ing Reform] Act, the sentencing court must select a sentence
from within the guideline range.’’ (emphasis added)).14
14 There is a single exception to this rule: a sentencing judge
has ‘‘discretion to depart from the guideline applicable to a particu-
lar case if the judge finds an aggravating or mitigating factor
present that the Commission did not adequately consider when
formulating the guidelines.’’ Mistretta, 488 U.S. at 367; see Koon,
518 U.S. at 92; 18 U.S.C. § 3553(b); U.S.S.G. MANUAL § 5K2.0.
The possibility of a departure from the applicable guidelines is not
before us, however, because the district court denied the only
departure requests Lafayette made—based on his status as a
14
Lafayette’s error lies in reading §§ 3584 and 3553(a) with-
out reference to the balance of the statutory sentencing
structure. Although § 3584(a) provides that a court ‘‘may’’
run multiple terms concurrently or consecutively, Congress
also authorized the Sentencing Commission, in 28 U.S.C.
§ 994(a)(1), to promulgate guidelines ‘‘for use of a sentencing
court in determining the sentence to be imposed in a criminal
case, including TTT (D) a determination whether multiple
sentences to terms of imprisonment should be ordered to run
concurrently or consecutively.’’ 28 U.S.C. § 994(a)(1)(D).
And, as the Supreme Court said in Mistretta, subsections
3553(a) and (b) make application of those guidelines binding
on the district court. 488 U.S. at 367. Subsection 3553(b)
provides that ‘‘[t]he court shall impose a sentence of the kind,
and within the range, referred to in subsection (a)(4),’’ 18
U.S.C. § 3553(b) (emphasis added), and the kind and range of
sentence referred to in subsection (a)(4) is that ‘‘set forth in
the guidelines issued by the Sentencing Commission pursuant
to section 994(a)(1),’’ id. § 3553(a)(4)(A). The guidelines’
restriction on the grant of discretion contained in § 3584(a) is
not unique: most criminal statutes grant district courts wide
discretion over the length of a defendant’s sentence, but the
guidelines as a whole function to narrow that discretion
considerably. Compare, e.g., 21 U.S.C. § 841(b)(1)(C) (pre-
scribing a sentence of not more than 20 years (240 months)
for distribution of a controlled substance), with U.S.S.G.
MANUAL § 2D1.1(a)(3), (c)(1), & ch. 5, pt. A (prescribing a
sentence of not less than 235 months for distribution of 1.5
kilograms of cocaine base).
The same analysis applies to § 3584(b)’s instruction that
the district court shall ‘‘consider’’ the factors set forth in
deportable alien and on his alleged good behavior, see supra note
4—and he has neither appealed those denials nor suggested any
other mitigating factor that would justify a departure. Cf. United
States v. Draffin, 286 F.3d 606, 610 (D.C. Cir. 2002) (holding that
the court of appeals will reject a claim that the sentencing court
erred in failing to make an unrequested departure unless the
defendant ‘‘unequivocally demonstrate[s] the sentencing court mis-
construed its authority to depart’’).
15
§ 3553(a). Although § 3584(b) only requires the court to
‘‘consider’’ those factors—one of which is the kind and range
of sentence established by the Sentencing Guidelines—
§ 3553(b) makes clear that where the guideline in question is
mandatory, the district court’s consideration is at an end.
See Mistretta, 488 U.S. at 367; United States v. Bruce, 285
F.3d 69, 71–74 (D.C. Cir. 2002); United States v. Garcia, 322
F.3d 842, 846 (5th Cir. 2003). On the other hand, where the
guideline is itself only advisory, the district court retains a
measure of discretion and is free to consider the other factors
listed in § 3553(a).15 Because § 5G1.2(d) is a mandatory
guideline, and in this case would compel the district court to
impose consecutive sentences totaling 292 months’ imprison-
ment, Lafayette was not prejudiced by the imposition of the
same sentence on Count Four.
IV
For the foregoing reasons, we conclude that, even if Ap-
prendi obligated the district court to reduce Lafayette’s
sentence on Count Four, Guideline § 5G1.2(d) would have
required the court to impose the same total term of imprison-
ment that Lafayette is currently serving. Accordingly, any
Apprendi error was harmless, and the decisions of the district
court are
Affirmed.
15 See, e.g., U.S.S.G. MANUAL § 3D1.2 (providing that, ‘‘[f]or
multiple counts of offenses that are not listed [in the guideline],
grouping under this subsection may or may not be appropriate; a
case-by-case determination must be made based upon the facts of
the case and the applicable guidelines’’ (emphasis added)); id.
§ 5F1.1 (‘‘Community confinement may be imposed as a condition
of probation or supervised release.’’ (emphasis added)); id. § 5F1.4
(‘‘The court may order the defendant to pay the cost of giving
notice to victims pursuant to 18 U.S.C. § 3555.’’ (emphasis added)).