UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1229
UNITED STATES,
Appellee,
v.
KEITH JAMES PARKINSON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Cyr and Stahl, Circuit Judges,
and Zobel,* District Judge.
Christopher W. Dilworth, by Appointment of the Court, for
appellant.
Michael M. DuBose, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, Paula D. Silsby,
Assistant United States Attorney, and Margaret D. McGaughey,
Assistant United States Attorney, were on brief for appellee.
December 29, 1994
* Of the District of Massachusetts, sitting by designation.
ZOBEL, District Judge. Keith Parkinson once again
ZOBEL, District Judge
appeals his sentence. After a one-day jury trial, defendant was
convicted of robbing a bank in Portland, Maine, in violation of
18 U.S.C. 2113(a) (1991). He subsequently was sentenced to a
term of imprisonment of 240 months, to run consecutively to the
remainder of a ten-to-twenty year sentence imposed by a
Massachusetts state court for the robbery of a bank in Boston,
Massachusetts. On appeal, we affirmed the conviction, but
vacated the sentence because the district court had not followed
the directive of 5G1.3(c) of the United States Sentencing
Guidelines ("U.S.S.G." or "Sentencing Guidelines") when it
imposed an entirely consecutive federal sentence. United States
v. Parkinson, No. 91-2233, 1993 WL 89801, at *6 (1st Cir. Mar.
30, 1993). After remand, the district court again sentenced
defendant to a period of incarceration of 240 months, now to be
served concurrently with the remainder of his state sentence.1
At the time of the resentencing defendant had served either
forty-six or forty-eight months of that Massachusetts sentence.2
He now argues that the sentence, by not taking account of the
state time already served, represents an upward departure from
the applicable guideline range of 210 to 262 months, which on the
1 At resentencing, the court, without dissent from either party,
applied the 1993 Sentencing Guidelines. We do likewise.
2 Defendant had served forty-eight months from the date of his
arrest on the state charge and forty-six months from the date of
sentencing on that offense.
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facts of this case, he says, was improper.3
The parties disagree as to the issues on appeal.
Defendant, ignoring the first part of the district judge's
exegesis, presumes that the judge departed upwardly, and suggests
that the issue before us is whether such departure was justified.
The government presents a more complete, and in our view correct,
statement of the issues; namely, is time served in state custody
before the imposition of the federal sentence included in the
calculus under 5G1.3(c) when deciding whether the sentence is
outside the applicable guideline range; and, only if so, was an
upward departure in the instant case appropriate. Because we
answer the former inquiry in the negative, we need not reach the
latter. Nonetheless, a review of the record shows that an upward
departure would be appropriate.
Standard of Review
We consider de novo the legal meaning and scope of
5G1.3(c) (Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment). See United States v.
Thompson, 32 F.3d 1, 4 (1st Cir. 1994). The district court's
fact-finding, however, we review for clear error, with due
deference given its application of 5G1.3(c) to the facts of the
case. SeeUnited Statesv. St. Cyr,977 F.2d698, 701(1st Cir. 1992).
3 This range represents, coincidentally, both what the total
punishment would have been, in accordance with 5G1.2, had
defendant been sentenced on the federal and state bank robbery
convictions at the same time in federal court as well as the
punishment for the single federal conviction. Both calculations
are based upon a criminal history category of VI and total
offense level of 32. Defendant does not dispute either.
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Was there a departure?
A perusal of 5G1.3 leads us to conclude that in order
to determine whether a sentence imposed pursuant to 5G1.3(c)
represents a departure from the guidelines, we do not consider
time served in state custody. To hold otherwise would equate
"sentence" with "total punishment" and leave meaningless much of
the language of 5G1.3, which we are bound to follow. Like the
policy statements, the commentary to the Sentencing Guidelines is
binding when it "interprets or explains a guideline . . . unless
it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline." Stinson v. United States, 113 S. Ct. 1913, 1915,
1918 (1993). Similarly, even "'[p]ortions of [the Guidelines
Manual] not labeled as guidelines or commentary . . . are to be
construed as commentary and thus have the force of policy
statements.'" Id. at 1918 (quoting U.S.S.G. 1B1.7, comment.).
Section 5G1.3 is designed to achieve an incremental
punishment for a defendant who, at the time of sentencing for the
instant offense, is subject to an undischarged term of
imprisonment. U.S.S.G. 5G1.3. Although there is discretion as
to how to accomplish the incremental punishment, in fashioning an
appropriate sentence, the district court is constrained by the
Sentencing Guidelines. U.S.S.G. 5G1.3, comment. n.3; 28
U.S.C.A. 994(a) (West 1993). The court should use the
following method to reach the sentence: (1) compute the total
offense level for the instant offense and defendant's criminal
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history category; (2) determine the resulting guideline range for
that offense; and (3) choose the point within the guideline range
that effects a reasonable incremental punishment and decide
whether that sentence will run concurrently or consecutively.
See United States v. Jackson, 30 F.3d 199, 201 (1st Cir.
1994)(citing 18 U.S.C. 3553 (a),(b) (1988)); U.S.S.G. 5G1.3,
comment. n.3.
The commentary to 5G1.3 instructs that, to compute
such an incremental punishment, a sentencing judge should
consider the guideline grouping rules of 5G1.2 (Sentencing on
Multiple Counts of Conviction) which defines the total punishment
that the defendant would have received had he been simultaneously
sentenced in federal court for both offenses. U.S.S.G. 5G1.3;
Parkinson, 1993 WL 89801, at *4. Under 5G1.2, an offense level
and criminal history category for the combined offenses establish
a guideline range, from which the total punishment is derived.
U.S.S.G. 5G1.2, comment. Often, by discounting the total
punishment for time already served on the undischarged sentence,
the sentencing judge can attain an incremental punishment.
U.S.S.G. 5G1.3.
Confusion in this case arises from two unusual
circumstances. First, the statutory maximum for the offense of
conviction is well below the upper end of the guideline range.
Second, because of defendant's extensive criminal record (23
criminal history points; 10 above the maximum, category VI), the
5G1.2 calculation results in the same guideline range as that
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arrived at pursuant to 2B3.1 for the instant bank robbery
offense. In most cases, the latter would be less than the former
and the total punishment would not exceed the hypothetical range
for the combined offenses. Nevertheless, the Sentencing
Commission carefully distinguished a "sentence for the instant
offense" from the "total punishment." See generally U.S.S.G.
5G1.3. Therefore, when determining whether the sentencing judge
departed from the guideline range, we look at the sentence
imposed for the instant offense, not the total punishment. This
is appropriate even were the total punishment beyond the range
calculated under 5G1.2, because that section is a guide, not a
mandate. See 5G1.3, comment. n.3 (instructing court to
"consider" 5G1.2 "to the extent practicable").
The trial court correctly looked to the guideline for
the offense of conviction, 2B3.1, and found that Parkinson had
an offense level of 32 and, as a career offender, a criminal
history category of VI. See U.S.S.G. 5G1.3, comment.
n.3(D)(illustrating that, absent departure, sentence must fall
within the guideline range for the instant offense). Although
this combination would ordinarily yield a guideline range of 210
to 262 months, as noted above, the statutory cap on the offense
of conviction here was 240 months. 18 U.S.C.A. 2113(a) (West
1994). Thus, the imposed 240-month sentence, to be served
concurrently with the undischarged portion of Parkinson's ten-to-
twenty year state sentence, was not a departure from the
guideline range for the instant offense.
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Would a departure have been justified?
Although we hold that the sentence was within the
guideline range, a departure in this case would be warranted in
any event. This Court reviews the sentencing court's decision to
depart using a three-step inquiry: first, are the circumstances
of the case sufficiently unusual to justify departure, United
States v. Qui ones, 26 F.3d 213, 217 (1st Cir. 1994); second, do
the relied-upon factual circumstances actually exist, United
States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993); and third,
is the departure reasonable, Jackson, 30 F.3d 202 n.3. See
generally United States v. D az-Villafa e, 874 F.2d 43, 49 (1st
Cir.), cert. denied 493 U.S. 862 (1989). Because defendant does
not challenge the reasonableness of the departure, we discuss
only the first two steps below. Our review of the district
court's conclusion that the case was sufficiently unusual to
warrant departure is plenary, but we will set aside that court's
determination that the relied-upon facts actually exist only if
they are clearly erroneous. D az-Villafa e, 874 F.2d at 49.
The sentencing judge in an abundance of caution
articulated his reasons for departing under the authority of
4A1.3. That section permits an upward departure when a
defendant's criminal history category "does not adequately
reflect the seriousness of the defendant's past criminal conduct
or the likelihood that [he] will commit other crimes . . . ."
United States v. Fahm, 13 F.3d 447, 449 (1st Cir. 1994)(quoting
U.S.S.G. 4A1.3 (policy statement)). Thirteen or more criminal
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history points place a defendant in criminal history category VI;
according to the presentence report, Parkinson had accumulated
twenty-three. Given the notable difference between the criterion
for category VI and defendant's score, the upward departure rests
on solid legal ground. See United States v. Brown, 899 F.2d 94,
97 (1st Cir. 1990) (upward departure from criminal history
category VI justified by defendant's twenty criminal history
points). Further, strong evidence exists that, given the
opportunity, defendant will continue to engage in criminal
activity. The two bank robberies discussed in this opinion
occurred within one month of his release from a fifteen-year
sentence. The extent of defendant's criminal history, combined
with his proclivity for repeat performances, warrant the
conclusion that the guidelines underestimate his level of
criminality. See Fahm, 13 F.3d at 450; Brown, 899 F.2d at 98.
Finally, Parkinson challenges the adequacy of the
district court's documentation of the factual basis for the
departure. He questions neither the reliability nor the accuracy
of the evidence upon which the district court explicitly relied.
See Fahm, 13 F.3d at 450. The district court need not state each
and every fact that supports the departure. Rather, it is
sufficient that the judge specifically identified his findings as
those set out in the presentence report.
Conclusion
For the reasons stated above, the sentence is affirmed.
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