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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2003 Decided February 27, 2004
No. 03-3043
UNITED STATES OF AMERICA,
APPELLEE
v.
DERRICK J. HEARD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00266–01)
Jensen E. Barber II, appointed by the court, argued the
cause and filed the brief for appellant.
Jessie K. Liu, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, and John R. Fisher, Roy W. McLeese III,
and Kristina L. Ament, Assistant U.S. Attorneys.
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
Before: SENTELLE and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.*
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: The United States and defendant
Derrick Heard agreed to resolve a criminal charge against
Heard through a plea agreement that called for a sentence of
48 months’ imprisonment. The parties agreed to disagree,
however, as to whether that sentence should run concurrently
with, or consecutively to, a term of imprisonment that Heard
was already serving for committing a different offense. The
district court decided to run Heard’s new sentence consecu-
tively to his old one, so that the 48–month period would not
commence until after Heard completed his existing sentence.
Heard now appeals, contending that the district court erred
in not imposing a concurrent or partially concurrent sentence.
The issue is governed by United States Sentencing Guideline
§ 5G1.3. Finding no error in the district court’s determina-
tions, we affirm the defendant’s sentence.
I
On January 21, 2000, Heard was arrested after police
officers, in the course of executing a search warrant at his
apartment, found a revolver, 132 grams of crack cocaine, and
approximately $2000 in cash. On May 5, 2000, Heard pled
guilty to two counts stemming from the January 2000 arrest:
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); and possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g). Heard was released on his
personal recognizance pending sentencing, as part of an
agreement to cooperate with the government. On January
27, 2001, while still on release awaiting sentencing, Heard was
again arrested — this time with 1.4 grams of crack in his
possession.
* Senior Judge Silberman was a member of the panel at the time
of oral argument, but did not participate in the decision.
3
On February 14, 2003, a United States District Judge for
the District of Columbia sentenced Heard for his January
2000 offenses. The judge imposed concurrent sentences of
133 months’ imprisonment on the cocaine count and 30
months’ imprisonment on the firearm count.
Six days later, on February 20, 2003, Heard reached a plea
agreement with the government regarding his January 2001
offense. That agreement was entered into pursuant to Fed-
eral Rule of Criminal Procedure 11(e)(1)(C), which provides
that a plea agreement may specify that ‘‘the attorney for the
government will TTT agree that a specific sentence or sentenc-
ing range is the appropriate disposition of the case.’’ FED. R.
CRIM. P. 11(e)(1)(C) (2002).1 Rule 11(e)(1)(C) further provides
that ‘‘[s]uch a plea agreement is binding on the court once it
is accepted by the court.’’ Id.
Heard agreed to plead guilty to one count of possession
with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C), for his January 2001 offense. In
return, the government agreed to a sentence of 48 months’
imprisonment. Both parties ‘‘specifically agreed not to put in
the plea agreement whether the sentence, if the court were to
accept it, would run concurrent[ly] or consecutively’’ to
Heard’s undischarged sentence for the January 2000 offenses,
‘‘but TTT rather reserve[d] that for argument at the time of
sentencing.’’ Hr’g Tr. at 6 (Apr. 18, 2003).
Prior to the sentencing hearing, the U.S. Probation Office
prepared a Presentence Investigation Report (PSR) that
calculated a sentencing range of 188–235 months’ imprison-
ment under the United States Sentencing Guidelines. The
Probation Office initially calculated Heard’s criminal history
category as III, and his base offense level as 18 — the latter
because his offense involved 1.4 grams of cocaine base. PSR
¶¶ 13, 26; see U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1(c)(11) (drug quantity table) (2002) [hereinafter
1 By the time of the defendant’s plea, Rule 11(e)(1)(C) had been
recodified as Rule 11(c)(1)(C). See FED. R. CRIM. P. 11(c)(1)(C)
(2003). The parties continue to refer to the Rule as 11(e)(1)(C),
and, for purposes of consistency, we do so as well.
4
U.S.S.G.]; id. § 4A1.1 (criminal history categories). It then
added a 3–level enhancement because Heard committed the
offense while on release for another crime. PSR ¶ 14; see
U.S.S.G. § 2J1.7.
A substantial further enhancement was required, however,
because Heard’s February 20, 2003, conviction, together with
another previous conviction for a drug felony in 1990, ren-
dered him a career offender under Guideline § 4B1.1(a).
Under the career offender guideline, Heard’s offense level
was increased to 34 and his criminal history category was
raised from III to VI. PSR ¶¶ 19, 27; see U.S.S.G.
§ 4B1.1(b).2 After applying a 3–level reduction for accep-
tance of responsibility, see U.S.S.G. § 3E1.1(a)–(b), the Pro-
bation Office concluded that Heard’s total offense level was
31. That, together with a criminal history category of VI,
yielded a guidelines sentencing range of 188–235 months’
imprisonment. PSR ¶¶ 20, 21, 57; see U.S.S.G. ch. 5, pt. A
(sentencing table). The Probation Office noted, however, that
the ‘‘Rule 11(e)(1)(C) plea agreement caps the defendant’s
custody range [at] 48 months.’’ PSR ¶ 59.
On April 18, 2003, a district judge different than the one
who had sentenced Heard for his January 2000 offenses held
a hearing to determine whether to accept Heard’s Rule
11(e)(1)(C) plea agreement. After both the defense counsel
and the prosecutor stipulated that the PSR contained no
material inaccuracies, the judge accepted the PSR ‘‘as find-
ings of fact on the issues that are not in dispute.’’ Hr’g Tr. at
3. The judge then noted ‘‘for context purposes what the
guidelines calculation would be in this case,’’ reciting the
calculations set out above. Id. Next, the focus of the
proceeding turned to whether the judge should accept the
plea and how to impose the agreed-upon sentence relative to
2 Guideline § 4B1.1(b) mandates a criminal history category of VI
for all career offenders. It also mandates a base offense level of (at
least) 34 when the instant offense of conviction carries a statutory
maximum of 25 years or more, as does Heard’s violation of 21
U.S.C. § 841(b)(1)(C) after having previously been convicted of a
felony drug offense.
5
the defendant’s undischarged term. In that respect, the
judge stated that he was not ‘‘taking the prior offense conduct
into account[,] TTT nor does the presentence report take it
into account with respect to the sentence actually imposed,
which again is the 11(e)(1)(C) sentence of 48 months.’’ Id. at
36.
Both sides presented argument concerning the application
of Guideline § 5G1.3, which guides a court in choosing be-
tween concurrent and consecutive sentences, to Heard’s stipu-
lated sentence. The defendant argued that his case fell
within § 5G1.3(b), which requires the court to run the sen-
tence for the instant offense concurrently with an undis-
charged term from a prior offense. Alternatively, the defen-
dant argued that if the judge instead found that the case was
governed by § 5G1.3(c) — which grants the court authority to
run the sentence consecutively, concurrently, or partially
concurrently — the judge should choose the latter. The
district judge rejected both arguments and granted the gov-
ernment’s request to run the sentence consecutively.
II
The United States Code provides that, ‘‘if a term of impris-
onment is imposed on a defendant who is already subject to
an undischarged term of imprisonment, the terms may run
concurrently or consecutively.’’ 18 U.S.C. § 3584(a). In
deciding whether to impose a term concurrently or consecu-
tively, courts are directed to consider, inter alia, the Sentenc-
ing Guidelines. Id. §§ 3584(b), 3553(a)(4), 3553(b); see Unit-
ed States v. Lafayette, 337 F.3d 1043, 1050–52 (D.C. Cir.
2003). The relevant guideline is § 5G1.3, which is entitled
‘‘Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment,’’ and which is divided
into three subsections applicable to three categories of cases.
As we have previously explained, ‘‘subsection (a) describes the
cases in which the district court must impose a consecutive
sentence; subsection (b) describes those in which the sen-
tence must be concurrent; and subsection (c) gives the court
discretion, in ‘any other case,’ to sentence TTT consecutively
6
or concurrently’’ or partially concurrently. United States v.
Hall, 326 F.3d 1295, 1300 (D.C. Cir. 2003).
Both parties agree that subsection (a) does not apply here.
That subsection requires a consecutive sentence when ‘‘the
instant offense was committed while the defendant was serv-
ing a term of imprisonment TTT or after sentencing for, but
before commencing service of, such term of imprisonment.’’
U.S.S.G. § 5G1.3(a). Heard did not commit the instant of-
fense (the 2001 cocaine violation) while he was imprisoned or
after he was sentenced for the prior offenses (the 2000
cocaine and firearm offenses), but rather while he was still
awaiting sentencing for those offenses. Accordingly, the
dispute focuses on the remaining two subsections of § 5G1.3,
which, in the relevant (2002) edition of the Guidelines Manu-
al,3 provide as follows:
(b) If subsection (a) does not apply, and the undis-
charged term of imprisonment resulted from of-
fense(s) that have been fully taken into account in the
determination of the offense level for the instant
offense, the sentence for the instant offense shall be
imposed to run concurrently to the undischarged
term of imprisonment.
(c) (Policy Statement) In any other case, the sentence for
the instant offense may be imposed to run concur-
rently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3(b), (c) (emphasis added). The district court
concluded that subsection (c) was the applicable subsection,
that it gave the court discretion to determine how to run the
sentences, and that a consecutive sentence was the most
appropriate.
3 A sentencing court must ‘‘use the Guidelines Manual in effect on
the date that the defendant is sentenced,’’ U.S.S.G. § 1B1.11(a), p.s.,
unless use of that version ‘‘would violate the ex post facto clause of
the United States Constitution,’’ in which event ‘‘the court shall use
the Guidelines Manual in effect on the date that the offense of
conviction was committed,’’ id. § 1B1.11(b)(1).
7
Heard asserts two arguments on appeal: (1) that the
district court erred in not applying subsection (b), which
requires a concurrent sentence; and (2) that even if subsec-
tion (c) applies and the district court had discretion, the court
abused that discretion by imposing a consecutive rather than
partially concurrent sentence. As discussed below, Heard’s
first challenge turns on a question of law, which we therefore
review de novo. See United States v. Goodwin, 317 F.3d 293,
297 (D.C. Cir. 2003). We review his second challenge only for
abuse of discretion. See United States v. Velasquez, 136 F.3d
921, 923 (2d Cir. 1998) (collecting cases from several circuits).
A
Heard’s first contention is that the district court erred in
not imposing a concurrent sentence pursuant to § 5G1.3(b).
We note at the outset that we have some doubt as to whether
that subsection has any application to a sentence imposed
pursuant to a plea accepted under Rule 11(e)(1)(C). Subsec-
tion (b) applies only when ‘‘the undischarged term of impris-
onment resulted from offense(s) that have been fully taken
into account in the determination of the offense level for the
instant offense.’’ U.S.S.G. § 5G1.3(b) (emphasis added). A
sentence arising from a Rule 11(e)(1)(C) plea, however, does
not result from the determination of an appropriate guide-
lines offense level, but rather from the agreement of the
parties: an agreement that is ‘‘binding on the court once it is
accepted by the court.’’ FED. R. CRIM. P. 11(e)(1)(C). As we
have previously noted, although a court is ‘‘free to consider
the applicable Sentencing Guidelines range’’ in deciding
‘‘whether to accept an agreed-upon sentence’’ under Rule
11(e)(1)(C), it is ‘‘not compelled to do so.’’ United States v.
Goodall, 236 F.3d 700, 705 (D.C. Cir. 2001). Nonetheless,
because the government does not press this point, because
sentences under Rule 11(e)(1)(C) are not wholly divorced
from sentencing guideline calculations,4 and because there
may be at least some Rule 11(e)(1)(C) sentences that do rest
4 See U.S.S.G. § 6B1.2(c), p.s. (‘‘In the case of a plea agreement
that includes a specific sentence [Rule 11(e)(1)(C)], the court may
8
on a determination of offense levels,5 we will proceed as if the
fact that Heard pled guilty pursuant to Rule 11(e)(1)(C) were
not dispositive.6
Heard contends that § 5G1.3(b) governs his case because
his 2000 offenses were ‘‘taken into account’’ in the following
sense: the Probation Office recited them in the PSR, and the
district court discussed them at the sentencing hearing. Ap-
pellant’s Br. at 13. It is enough, Heard argues, that his prior
offenses were ‘‘addressed at all.’’ Oral Arg. Tape (Nov. 18,
2003). The question, however, is not whether those offenses
were taken into account in some colloquial sense, but whether
they were ‘‘fully taken into account in the determination of
the offense level for the instant offense,’’ as required by the
words of the guideline.
A number of courts of appeals have held that a prior
offense is not ‘‘taken into account’’ for purposes of § 5G1.3(b)
unless the conduct underlying that offense is part of the
‘‘relevant conduct’’ — as defined by Guideline § 1B1.3(a) —
accept the agreement if the court is satisfied either that: (1) the
agreed sentence is within the applicable guideline range; or (2) the
agreed sentence departs from the applicable guideline range for
justifiable reasons.’’) (brackets in original); Goodall, 236 F.3d at 705
(holding ‘‘that the policy statement in § 6B1.2 was promulgated to
guide, not to constrain, courts in deciding whether to accept or to
reject a plea agreement’’ and therefore is not binding on district
courts).
5 An argument could be made, for example, that a sentence
imposed under a Rule 11(e)(1)(C) plea is in fact based on an offense
level when the agreed-upon sentence is the same as that which
would have resulted from using the applicable guidelines offense
level.
6 Compare United States v. Williams, 260 F.3d 160, 165 (2d Cir.
2001) (holding ‘‘that a district court is obligated to apply section
5G1.3(b) to Rule 11(e)(1)(C) plea bargains that are mute about how
the sentence is to interact with an existing undischarged sentence’’),
with id. at 172 (Haden, J., concurring) (arguing that § 5G1.3(b) is
inapplicable to a Rule 11(e)(1)(C) agreement ‘‘for the simple reason
that [the court] was not required to, and in fact did not, ‘determin[e]
TTT [an] offense level for the instant offense’ ’’) (quoting § 5G1.3(b)).
9
used to determine the appropriate offense level for the in-
stant offense.7 See United States v. Johnson, 324 F.3d 875,
878–80 (7th Cir. 2003); United States v. Raleigh, 278 F.3d
563, 568 (6th Cir. 2002); United States v. Lange, 146 F.3d
555, 556 (8th Cir. 1998); United States v. Oser, 107 F.3d 1080,
1084 (3d Cir. 1997); United States v. Gondek, 65 F.3d 1, 4
(1st Cir. 1995). That view is supported by several consider-
ations. First, earlier editions of the Guidelines Manual con-
tained language that suggested that only such relevant con-
duct can trigger § 5G1.3(b).8 Although that text was not
retained in the 2002 edition applicable here, the Sentencing
Commission did not suggest that it was making a material
change when it deleted the language.9 To the contrary, the
7 As is particularly relevant here, § 1B1.3(a) provides that, for
certain offenses including drug crimes, a defendant’s base offense
level ‘‘shall be determined on the basis of [among other things] TTT
all acts and omissions TTT that were part of the same course of
conduct or common scheme or plan as the offense of conviction.’’
U.S.S.G. § 1B1.3(a)(2).
8 In 1991, § 5G1.3(b) required concurrent sentencing where the
‘‘undischarged term of imprisonment resulted from offense(s) that
constituted part of the same course of conduct as the instant offense
and have been fully taken into account in the determination of the
offense level for the instant offense.’’ U.S.S.G. § 5G1.3(b) (1991).
In 1992, the text of the guideline was changed to the version that
was in place at the time of Heard’s sentencing in 2002, but an
application note was added that provided: ‘‘Subsection (b) TTT
addresses cases in which the conduct resulting in the undischarged
term of imprisonment has been fully taken into account under
§ 1B1.3 (Relevant Conduct) in determining the offense level for the
instant offense.’’ U.S.S.G. § 5G1.3(b), cmt. n.2 (1992). Finally, in
1995, the Commission altered the application note to move the
reference to § 1B1.3 from the introductory text of that note to its
example, see U.S.S.G. § 5G1.3(b), cmt. n.2 (1995), which is how
matters stood when Heard was sentenced in 2002, see U.S.S.G.
§ 5G1.3(b) & cmt. n.2 (2002).
9 See U.S.S.G. app. C (vol. I), amendment 465 at 347 (2003)
(stating reason for 1992 amendment); id. app. C (vol. I), amend-
ment 535 at 468 (stating reason for 1995 amendment).
10
only example that the 2002 edition provides of a case appro-
priate for treatment under § 5G1.3(b) is one in which the
prior offense conduct was in fact used as relevant conduct in
determining the sentence for the instant offense:
Example: The defendant is convicted of a federal offense
charging the sale of 30 grams of cocaine. Under § 1B1.3
(Relevant Conduct), the defendant is held accountable for
the sale of an additional 15 grams of cocaine, an offense
for which the defendant has been convicted and sen-
tenced in state courtTTTT The guideline range applicable
to the defendant is 10–16 months[, based on a base]
offense level of 14 for sale of 45 grams of cocaineTTTT
U.S.S.G. § 5G1.3, cmt. n.2 (2002). And while we do not rely
on subsequent developments to decide this case, we do note
that the Sentencing Guidelines were amended at the end of
last year to ‘‘clarif[y]’’ that ‘‘subsection (b) shall apply only to
prior offenses that are relevant conduct to the instant offense
of conviction and that resulted in an increase in the offense
level for the instant offense.’’ U.S.S.G. app. C (vol. II),
amendment 660 at 410 (2003).10
Limiting subsection (b)’s requirement of concurrent sen-
tences to cases in which the earlier offense is considered
relevant conduct with respect to the instant offense is conso-
nant with the Supreme Court’s description of both the subsec-
tion’s operation and its purpose:
[T]he Guidelines TTT explicitly contemplate the possibility
of separate prosecutions involving the same or over-
lapping ‘‘relevant conduct.’’ TTT Because the concept of
relevant conduct under the Guidelines is reciprocal,
§ 5G1.3 operates to mitigate the possibility that the
fortuity of two separate prosecutions will grossly in-
crease a defendant’s sentence. If a defendant is serving
10 Subsection (b) now applies when ‘‘a term of imprisonment
resulted from another offense that is relevant conduct to the instant
offense of conviction under TTT § 1B1.3 (Relevant Conduct) and
that was the basis for an increase in the offense level for the instant
offenseTTTT’’ U.S.S.G. § 5G1.3(b) (2003); see id. cmt. n.2(A), 2(B).
11
an undischarged term of imprisonment ‘‘result[ing] from
offense(s) that have been fully taken into account [as
relevant conduct] in the determination of the offense
level for the instant offense,’’ § 5G1.3(b) provides that
‘‘the sentence for the instant offense shall be imposed to
run concurrently to the undischarged term of imprison-
ment.’’ TTT Significant safeguards built into the Sentenc-
ing Guidelines therefore protect petitioner against hav-
ing the length of his sentence multiplied by duplicative
consideration of the same criminal conductTTTT
Witte v. United States, 515 U.S. 389, 404–05 (1995) (emphasis
added) (brackets in original). Following the Supreme Court,
many circuits have concluded that ‘‘[t]he guideline’s purpose
TTT is to prevent TTT double-counting’’ of the same offense
conduct. United States v. Garcia–Hernandez, 237 F.3d 105,
109 (2d Cir. 2000).11 When a prior offense constitutes rele-
vant conduct with respect to the instant one, the Guidelines
treat it as though it were part of the instant offense. See
U.S.S.G. § 1B1.3; supra note 7. In such circumstances, the
prior offense has necessarily ‘‘been fully taken into account in
the determination of the offense level for the instant offense,’’
and § 5G1.3(b) operates to prevent double-counting. Al-
though there may be other circumstances that could result in
double-counting — an issue we need not decide today — we
agree with the Second Circuit that ‘‘in most instances only
consideration similar to that given to relevant conduct will
‘fully’ take into account separate offenses.’’ Garcia–Hernan-
dez, 237 F.3d at 109 n.3.
11 See, e.g., United States v. Rangel, 319 F.3d 710, 714 (5th Cir.
2003) (‘‘Section 5G1.3 ‘operates to mitigate the possibility that the
fortuity of two separate prosecutions will grossly increase a defen-
dant’s sentence.’ ’’) (quoting Witte, 515 U.S. at 405); United States
v. Swan, 275 F.3d 272, 277 (3d Cir. 2002) (Section 5G1.3(b) is ‘‘aimed
at the situation in which, unless the sentences were concurrent, the
defendant would be serving two sentences for essentially the identi-
cal offense.’’); United States v. Caraballo, 200 F.3d 20, 26 (1st Cir.
1999) (‘‘[Section] 5G1.3(b)’s central aim is to ensure that no defen-
dant is punished twice for the same crimeTTTT’’).
12
Heard’s January 2000 offenses were not taken into account
as ‘‘relevant conduct’’ in determining (what, but for the Rule
11(e)(1)(C) plea, would have been) his offense level for the
January 2001 offense, and the consecutive sentences did not
otherwise cause him to suffer duplicative punishment. Both
the Probation Office and the court treated the former as
separate crimes, unrelated to the latter. The PSR calculated
a base offense level using a drug quantity of only 1.4 grams of
cocaine base, see PSR ¶ 13, rather than the total quantity
involved in both the 2000 and 2001 offenses (133.4 grams), see
Government’s Br. at 20. And, the district judge — who was
not the judge in Heard’s first case — emphasized that ‘‘I
don’t even know the particulars of the prior offense conduct.’’
Hr’g Tr. at 36.
Heard nonetheless argues that his earlier offenses were
taken into account because they were part of the calculation
that led to the PSR’s designation of him as a career criminal,
and hence to a higher guidelines range than otherwise would
have been appropriate. Heard does not argue that the fact
that the earlier offenses increased his criminal history catego-
ry qualified him for subsection (b) treatment. Such an argu-
ment would be without merit, because subsection (b) only
applies where the prior offense is taken into account ‘‘in the
determination of the offense level’’ — not where it is taken
into account in determining criminal history.12 But Heard
notes that the fact that he is a career criminal had a second
effect on his guidelines calculation: it not only increased his
criminal history category from III to VI, but it also increased
his adjusted offense level from 1813 to 31. See supra Part I.
12 Under the Guidelines, the applicable sentencing range is deter-
mined by a combination of the defendant’s offense level and crimi-
nal history category. See U.S.S.G. ch. 5, pt. A (sentencing table).
13Had Heard not been a career offender, his base offense level of
18 would have been increased by three because the instant offense
was committed while he was on release, and then reduced by three
because he accepted responsibility for his crime. See PSR ¶¶ 14,
20.
13
As a consequence, Heard’s guidelines sentencing range
jumped from 33–41 months to 188–235 months.14
Heard’s argument has two defects. First, were we to
apply § 5G1.3(b) to his case, Heard’s 2001 offense would be
penalty-free. If that offense’s 48–month sentence were run
concurrently with the 133–month sentence for the 2000 of-
fenses, Heard would suffer no consequence for committing
the second offense. Indeed, that would be the case for any
career criminal whose prior offense carried a sentence sub-
stantially longer than did his instant offense, such that the
latter is subsumed within the former if they are run concur-
rently. This would not simply vitiate the penalty-enhancing
effect of the career criminal guideline; it would turn it on its
head: while the sentence for a non-career criminal could be
run consecutively under § 5G1.3(c), that for a career criminal
would have to be run concurrently with the undischarged
term under § 5G1.3(b). Surely the Sentencing Commission
did not intend § 5G1.3 to treat those who fall under its career
offender guideline more leniently than those who do not.
Second, this contention ignores the adverb ‘‘fully’’ in
§ 5G1.3(b)’s requirement that the prior offenses have been
‘‘fully taken into account’’ in determining the offense level for
the instant offense. See Swan, 275 F.3d at 277 (declaring
that § 5G1.3(b)’s ‘‘inclusion of the word ‘fully’ and the provi-
sion’s purpose of avoiding double-counting indicate that more
than just some effect on the offense level is required’’); see
also Duncan v. Walker, 533 U.S. 167, 175 (2001) (rejecting a
construction that would render a word in a statute ‘‘insignifi-
cant, if not wholly superfluous’’). Even if we continue to
ignore the fact that there was no true ‘‘offense level’’ involved
in this Rule 11(e)(1)(C) sentence, and even if we do not
require Heard’s 2000 offenses to have been used as relevant
conduct with respect to the 2001 offense, there is still no
sense in which those prior offenses were ‘‘fully’’ taken into
account in determining the ‘‘offense level’’ for Heard’s 2001
14See U.S.S.G. ch. 5, pt. A (sentencing table) (listing a range of
33–41 months for offense level 18 and criminal history category III,
and 188–235 months for level 31 and category VI).
14
offense. As we noted in Part I above, the offense level
appropriate for Heard’s conduct and career criminal status
was 31. Combined with a criminal history category of VI,
that offense level would have yielded a guidelines sentencing
range of 188–235 months. The district court, however, im-
posed a sentence of only 48 months — 140 months below the
lower boundary of the guidelines range. Thus, even if the
Probation Office did ‘‘take[ ] into account’’ Heard’s prior
offense in calculating what his offense level would have been
under the career criminal guideline, the district court did not
‘‘fully’’ do so when it imposed a sentence that bore no
relationship to that offense level. As the court emphasized,
Heard’s prior offense conduct was not ‘‘take[n ] into account
with respect to the sentence actually imposed, which again is
the 11(e)(1)(c) sentence of 48 months.’’ Hr’g Tr. at 36.
For the foregoing reasons, we conclude that § 5G1.3(b),
and its requirement that the court impose a sentence to run
concurrently with an undischarged term of imprisonment,
does not apply to this case.
B
Where subsections (a) and (b) of Guideline § 5G1.3 are
inapplicable, the applicable subsection is (c), which provides:
(Policy Statement) In any other case, the sentence for
the instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior un-
discharged term of imprisonment to achieve a reasonable
punishment for the instant offense.
U.S.S.G. § 5G1.3(c). Applying that subsection, the district
court determined that it was appropriate to impose Heard’s
48–month sentence consecutively to his prior undischarged
term of imprisonment. The defendant contends that, even if
subsection (c) is the appropriate provision, the district court
erred by declining to exercise its authority to impose a
partially concurrent sentence under that subsection.
By contrast to subsections (a) and (b) — which command
that the instant sentence ‘‘shall be’’ imposed to run consecu-
15
tively if the case falls within (a) and concurrently if it falls
within (b), see id. § 5G1.3(a), (b) — subsection (c) plainly
leaves the decision ‘‘[i]n any other case’’ to the discretion of
the district court. For cases in that category, the sentence
‘‘may be’’ imposed to run ‘‘concurrently, partially concurrent-
ly, or consecutively.’’ Id. § 5G1.3(c); see Hall, 326 F.3d at
1300. The breadth of the court’s discretion is made clear by
the criterion the subsection provides to guide it: the choice is
to be made ‘‘to achieve a reasonable punishment for the
instant offense.’’ U.S.S.G. § 5G1.3(c) (emphasis added). And
it is further evidenced by the long and indeterminate list of
factors that the commentary to the subsection sets forth for
the court’s consideration in making its choice, including, inter
alia, ‘‘any other circumstance relevant to the determination of
an appropriate sentence for the instant offense.’’ Id. § 5G1.3,
cmt. n.3(d).15 We may overturn the district court’s exercise
of its discretion under § 5G1.3(c) only if that discretion has
been abused. See Velasquez, 136 F.3d at 923.
We detect no such abuse here. Heard’s 48–month sentence
was at least 140 months shorter than the 188–235 month term
appropriate under the Sentencing Guidelines. See supra note
14. Even when that 48–month sentence is run consecutively
to the 133–month sentence for his 2000 offenses, the total
15 Application Note 3 states that, ‘‘[t]o achieve a reasonable
punishment and avoid unwarranted disparity, the court should
consider the factors set forth in 18 U.S.C. § 3584 (referencing 18
U.S.C. § 3553(a)).’’ U.S.S.G. § 5G1.3, cmt. n.3. Those factors
include: ‘‘the nature and circumstances of the offense and history
and characteristics of the defendant’’; ‘‘the need for the sentence
imposed TTT to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense’’;
and ‘‘the sentencing range TTT as set forth in the guidelines.’’ 18
U.S.C. § 3553(a)(1)-(4). The application note also states that the
court should, inter alia, ‘‘be cognizant’’ of: ‘‘the type TTT and length
of the prior undischarged sentence’’; ‘‘the time served on the
undischarged sentence and the time likely to be served before
release’’; and ‘‘any other circumstance relevant to the determina-
tion of an appropriate sentence for the instant offense.’’ U.S.S.G.
§ 5G1.3, cmt. n.3.
16
181–month sentence is still lower than the lowest guidelines
sentence (188 months) Heard could have received for the
instant offense alone. Accordingly, even if Heard’s sentence
is evaluated by the measure most favorable to him, he still
received a substantial benefit for his plea bargain.
Heard, though, wants an even better result. He contends
that the district court should have run his sentence partially
concurrently so that the marginal increase in his total sen-
tence was not 48 months, but only 33. He bases that
argument on the fact that, without the enhancement for being
a career criminal, his guidelines offense level would have been
18 and his criminal history category III, yielding a guidelines
sentencing range of 33–41 months. See supra notes 13, 14.
But the foundation of this argument is the contention that we
have already rejected above: that by taking the 2000 offenses
into consideration in designating Heard a career criminal, the
sentence for the 2001 offense constitutes a form of double-
counting. To the contrary, the court did not base the later
sentence on the conduct underlying the prior offenses. Rath-
er, it properly took into account the fact that Heard was a
recidivist who had violated the trust of both the government
and the court by committing another offense while on re-
lease.16 As the judge said in explaining his decision:
[T]here is a substantial degree of merit to the arguments
that the government has made with respect to the seri-
ousness of this offense and the context of this offense
with respect to the ability of someone who is cooperating
[with the government] to then go and commit offenses
that are very inconsistent with release for cooperation
purposes. When the court sorts all of that out, it comes
down on the side of the sentence as agreed to in the plea
16 See Witte, 515 U.S. at 400 (‘‘In repeatedly upholding TTT
recidivism statutes, we have rejected double jeopardy challenges
because the enhanced punishment imposed for the later offense is
not to be viewed as either a new jeopardy or additional penalty for
the earlier crimes, but instead as a stiffened penalty for the latest
crime, which is considered to be an aggravated offense because a
repetitive one.’’) (internal quotation marks omitted).
17
agreement of 48 months being the appropriate sentence
in a real sense for the conduct that is at issue here, which
is the conduct that the defendant was charged with and
pled guilty to in this case, not other conduct.
Hr’g Tr. at 44–45.
Finally, Heard urges a rule of lenity, arguing that because
the plea agreement was ambiguous as to whether the sen-
tence should be imposed consecutively or concurrently, we
should construe it in his favor and choose the latter. But
there was no ambiguity here. Instead, as defense counsel
made clear at the sentencing hearing, both parties agreed to
disagree — and expressly agreed to leave the matter for the
district court to resolve. Id. at 6. For the reasons stated
above, we conclude that in resolving the matter in favor of a
consecutive sentence, the court neither erred as a matter of
law nor abused its considerable discretion.
III
The judgment of the district court is therefore
Affirmed.