IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-41083
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JORGE REYES-LUGO, aka GEORGE GARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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January 3, 2001
Before SMITH and DENNIS, Circuit Judges, and HARMON, District
Judge.1
MELINDA HARMON, District Judge:
In this appeal, Defendant-Appellant Jorge Reyes-Lugo, also
known as George Garza, appeals his sentence, imposed after his plea
of guilty to illegal re-entry in violation of 8 U.S.C. § 1326.
After examining the briefs and pertinent portions of the record,
and after considering the arguments of counsel, we find no
reversible error in the sentence that was imposed and affirm.
I.
1
District Judge of the Southern District of Texas,
sitting by designation.
On September 9, 1991, Jorge Reyes-Lugo (“Reyes-Lugo”)
received ten years probation for aggravated assault in Criminal
Number 91-CR-794-D in the 107th District Court, Cameron County,
Texas. Eighteen days later, on September 27, 1991, he was deported
from the United States. More than seven years later, on January
29, 1999, Reyes-Lugo was encountered by agents of the Immigration
and Naturalization Service (“INS”) in Brownsville, Texas, at the
Cameron County Detention Center. He was in the custody of the
State of Texas on a motion to revoke his probation.
The INS agents interviewed Reyes-Lugo on January 29, 1999 and
a second time on February 12, 1999. During that second interview,
he admitted that in 1998 he had re-entered the United States, by
wading across the Rio Grande River near Brownsville, Texas.
The INS agents then performed a criminal record check and
found that Reyes-Lugo had an extensive immigration and criminal
record. He had been last deported from the United States on
October 31, 1996, and he had not applied for readmission into the
United States.
On March 11, 1999 Reyes-Lugo pled true to the allegations in
the motion to revoke the 1991 probation, and was sentenced by the
Texas judge to eight years imprisonment in the Texas Department of
Criminal Justice, Institutional Division.
After his plea of guilty in the instant case he was
interviewed on June 3, 1999 by the Probation Officer for
2
preparation of the Presentence Report. At that interview Reyes-
Lugo accepted responsibility for the illegal re-entry in 1998 and
concurred in the government’s version of the factual events. He
had been arrested by state officers in Raymondville, Texas on the
motion to revoke his 1991 state probation. He had been transferred
to the Cameron County Detention Center where he was found by the
INS agents.
In the Presentence Report the probation officer calculated
Reyes-Lugo’s base offense level as eight and added an additional
sixteen levels because he had been deported following a conviction
for an aggravated felony, the 1991 aggravated assault. U.S.S.G. §
2L1.2(b)(1)(A).2 Reyes-Lugo then received a three-level reduction
pursuant to USSG § 3E1.1(a) and (b) for timely acceptance of
responsibility, resulting in a net offense level of twenty-one.
Reyes-Lugo’s criminal history was calculated as a V, based
upon: the aggravated assault conviction in the 107th District
Court, No. 91-CR-794-D;3 the conviction for burglary of a
habitation, also in the 107th District Court, Criminal Number 4124-
B for which he received ten years probation on January 8, 1999; the
2
U.S.S.G. § 2L1.2(b)(1)(A) reads:
(1) If the defendant previously was deported
after a criminal conviction . . . , increase as
follows . . . (A) If the conviction was for an
aggravated felony, increase by 16 levels.
3
As discussed above, this was the crime for which his
probation was revoked on March 3, 1999 and for which he received
a sentence of eight years.
3
conviction in May of 1998 for possession of a controlled substance,
cocaine, in the 248th District Court, Harris County, Texas,
Criminal Number 078206801010, for which he received four months
imprisonment; and two convictions in state court for theft. A
total offense level of twenty-one and a criminal history category
of V resulted in an applicable sentencing guideline range between
seventy and eighty-seven months.
United States District Judge Filemon B. Vela sentenced Reyes-
Lugo on August 11, 1999 to seventy months' imprisonment. Neither
the United States nor Reyes-Lugo filed an objection to the
Presentence Report, and neither voiced at the sentencing hearing
any reason why Judge Vela should not adopt the findings of the
Presentence Report as his own, which he did.
During the allocution, the attorney for Reyes-Lugo asked that
any sentence imposed by Judge Vela run concurrently with his eight-
year state sentence, which had been imposed March 11, 1999. Judge
Vela refused. Reyes-Lugo’s counsel stated to Judge Vela that his
client did not understand how it was possible that he could receive
eight years on the state revocation for having returned illegally
and now be facing an additional sentence for having returned
illegally. Judge Vela responded that the two cases were two
separate offenses. He explained, “The revocation over there arose
from something that you did–had nothing to do with this case, other
than points against you for having been convicted.” He explained
4
further that the state revocation did not occur as a result of the
federal case, but because Reyes-Lugo had been convicted of two
state felonies committed while on state probation. Judge Vela
sentenced Reyes-Lugo to the bottom of the guideline range, seventy
months, and credited him with time served in jail awaiting
disposition of his federal case.
II.
In this appeal, Reyes-Lugo presents a two-pronged argument.
He argues that Judge Vela failed to follow U.S.S.G. § 5G1.3(b) when
he imposed a sentence consecutive to the eight-year state sentence
because Reyes-Lugo’s undischarged state sentence had already been
taken into account in his federal sentence. He also argues that
Judge Vela failed to follow U.S.S.G. § 5G1.3(c) because he did not
state in open court his reasons for imposing a consecutive
sentence. Reyes-Lugo urges that the sentence be vacated and the
case be remanded for re-sentencing.
This Court reviews a district court’s decision to impose a
consecutive sentence rather than a concurrent sentence for an abuse
of discretion. United States v. Richardson, 87 F.3d 706, 709 (5th
Cir. 1996). This Court reviews de novo the district court’s
application of the Sentencing Guidelines. Id. at 710.
The record here reflects that Reyes-Lugo, although failing to
object to the consecutive sentence, asked for a concurrent sentence
and questioned the reasoning behind the consecutive sentence. In
5
United States v. Hernandez, 64 F.3d 179 (5th Cir. 1995), this
Court, faced with a similar scenario, held:
Although the specificity of Hernandez’ request left
something to be desired, it alerted the district court to
the issue before it. This is not the case where a party
completely and utterly failed to make an issue of the
fact that his sentence should be imposed concurrently
with an undischarged prison sentence.
Id. at 181. Accordingly, we hold that Reyes-Lugo raised this issue
below, and his error was preserved for appeal.
Reyes-Lugo argues that the sentencing guidelines require a
concurrent sentence if “the undischarged term of imprisonment
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). Appellant pled guilty to illegal re-entry
after being deported for committing an aggravated felony. That
felony was a state conviction for aggravated assault. The
Sentencing Guidelines require that if the felony committed prior to
deportation was an aggravated felony, sixteen levels are to be
added to the base offense level. U.S.S.G. § 2L1.2(b)(1)(A). The
state court sentenced him to eight years for violation of the
probation he had received for the aggravated felony. Appellant
argues that the state court aggravated felony was fully taken into
account in the determination of the offense level for the federal
offense of illegal re-entry when the sixteen levels were added.
6
Accordingly, he argues, that § 5G1.3(b)4 should apply, and a
concurrent sentence is mandated by the Sentencing Guidelines.
The sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A) was
applied in this case because Reyes-Lugo illegally re-entered the
United States after having been deported following his conviction
for the aggravated felony of aggravated assault. The application
of the adjustment under U.S.S.G. § 5G1.3(b) was not dependent upon
the revocation of probation. This sixteen-level adjustment would
have applied even if the state had chosen not to revoke the
probation or had the defendant served this sentence prior to his
discovery by the INS. In fact, it was the revocation of the state
probation that caused Reyes-Lugo to be serving an undischarged term
of imprisonment at the time of his sentencing for illegal re-entry.
The state is thus sanctioning Reyes-Lugo for violating his
probation. A concurrent sentence in this case would be a windfall
resulting from the fact that he was originally given probation by
the state, a probation which he violated. Sentencing Guideline §
5G1.3(b) does not apply. Rather, as is discussed below, Note 6 to
U.S.S.G. § 5G1.3(c) is applicable.
4
Sentencing Guideline § 5G1.3(b) reads:
If subsection (a) does not apply, and the undischarged
term of imprisonment resulted from offense(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.
7
Reyes-Lugo’s second argument is tangentially related to his
first. Title 18 U.S.C. § 3584(b) requires the district judge, in
the exercise of his discretion to determine whether to impose a
consecutive or concurrent sentence, to consider the factors set
forth in 18 U.S.C. § 3553(a). Title 18 U.S.C. § 3553(c) requires
the district judge to state in open court his reasons for imposing
a particular sentence. Reyes-Lugo argues that § 3553(c) therefore
required Judge Vela to state in open court his reasons for imposing
a consecutive rather than a concurrent sentence. Reyes-Lugo cites
United States v. Hernandez for this conclusion, and, by implication
only, argues that failure to state in open court the reasons for
imposing a concurrent rather than consecutive sentence evidences a
failure to consider the § 3553(a) factors.
The situation in the Hernandez case is very different,
however, from that of the instant case. In Hernandez, the
defendant pled guilty on June 2, 1994 to one count of a drug
conspiracy. On December 6, 1993 he had pled guilty to an unrelated
drug offense committed in Florida and been sentenced to eighty-four
months. At his sentencing on the June 1994 plea he asked that his
sentence run concurrent to the eighty-four month sentence received
in Florida. The district judge gave him a 120 month consecutive
sentence. There was no dispute that U.S.S.G. § 5G1.3(a) and (b)
were inapplicable and that U.S.S.G. § 5G1.3(c) applied. Section
5G1.3(c) provides that “the sentence for the instant offense shall
8
be imposed to run consecutively to the prior undischarged term of
imprisonment to the extent necessary to achieve a reasonable
incremental punishment for the instant offense.” U.S.S.G. §
5G1.3(c). The commentary to § 5G1.3, Application Note 3, provides
guidance in applying subsection (c). The guidance offered at the
time Hernandez was sentenced was that in some instances the
“incremental punishment can be achieved by imposing a sentence
concurrent with the remainder of the unexpired term of
imprisonment.” Hernandez, 64 F.3d at 182 (quoting U.S.S.G. §
5G1.3, app. n.3). A consecutive sentence is not, under those
circumstances, required. Id. “To the extent practicable, the
court should consider a reasonable incremental penalty to be a
sentence for the instant offense that results in a combined
sentence of imprisonment that approximates the total punishment
that would have been imposed under § 5G1.2 (Sentencing on Multiple
Counts of Conviction) had all of the offenses been federal offenses
for which sentences were being imposed at the same time.” U.S.S.G.
§ 5G1.3 app. n.3.
This Court found that non-conflicting policy statements are
authoritative and that § 5G1.3(c) is a policy statement binding on
the district court. Hernandez, 64 F.3d at 182. A district judge
has no discretion to ignore this policy statement, and because
Application Note 3 interprets this policy statement and explains
how it should be applied, the suggested methodology of Application
9
Note 3 must be considered by the district judge when he determines
if a sentence should be consecutive or concurrent. Id. at 183.
The district court is free to reject commentary 3's methodology,
but only after considering it. If he does reject the methodology,
he must explain either why the calculated sentence would be
impracticable or the reasons for using an alternative method.
Thus, this Court recognized in Hernandez that the district judge
had discretion to impose either a consecutive or concurrent
sentence on one who is subject to an undischarged term of
imprisonment, but also recognized that Congress, in 18 U.S.C. §
3584(a), had directed district judges to consider applicable
guidelines and policy statements in effect at the time of
sentencing. Id. (“[T]he district court maintains its discretion to
reject the suggested methodology, but only after it has considered
the methodology's possible application in reaching a reasonable
incremental punishment.”); see United States v. Torrez, 40 F.3d 84,
87 (5th Cir. 1994); United States v. Redman, 35 F.3d 437, 441 (9th
Cir. 1994); United States v. Coleman, 15 F.3d 610, 613 (6th Cir.
1994).
In the instant case, however, the Hernandez reasoning does not
apply. Judge Vela did not have discretion to impose either a
consecutive or concurrent sentence. In United States v. Alexander,
100 F.3d 24(5th Cir. 1996), this Court held that Application Note
10
6 to U.S.S.G. § 5G1.3 mandates a consecutive sentence. Application
Note 6 provides:
If the defendant was on federal or state probation,
parole, or supervised release at the time of the instant
offense, and has had such probation, parole, or
supervised release revoked, the sentence for the instant
offense should be imposed to run consecutively to the
term imposed for the violation of probation, parole, or
supervised release in order to provide an incremental
penalty for the violation of probation, parole, or
supervised release . . . .
U.S.S.G. § 5G1.3, app. n. 6. Alexander followed the First, Ninth,
and Eighth Circuits in holding that Application Note 6 imposes a
mandatory obligation on the district court to impose a consecutive
sentence. Alexander, 100 F.3d at 26-27; cf. United States v.
McCarthy, 77 F.3d 522, 539-40 (1st Cir. 1996); United States v.
Gondek, 65 F.3d 1, 2-3 (1st Cir. 1995); United States v. Bernard,
48 F.3d 427, 430-32 (9th Cir. 1995); United States v. Dungy, 1996
WL 193150, at *2 (8th Cir. April 23, 1996) (unpublished
disposition). “The Note plainly states that if the defendant
committed the offense while on probation and his probation has been
revoked, the sentence should be imposed consecutively.” Alexander,
100 F3d. at 27. This Court adopted the reasoning of the First
Circuit in reconciling this outcome with the language of § 5G1.3(c)
when we held that the Application Note “represents the Commission’s
determination as to what is a ‘reasonable incremental punishment’
in the narrow situation described in the Note.” Alexander, 100
F.3d at 27 (quoting Gondek, 65 F.3d at 3).
11
Indeed, Reyes-Lugo’s case is exactly that contemplated by
Application Note 6. He committed the federal offense (being found
in the United States after illegal re-entry) in 1999 while he was
on ten years' state probation for aggravated assault received on
September 9, 1991. He was deported from the United States on
September 27, 1991.5 He was “found” by the INS in the United
States on January 29, 1999. His 1991 state probation was revoked
on March 11, 1999, and he received an eight-year sentence. Judge
Vela sentenced him on August 11, 1999.
Section 3553(c) requires that the district judge state in open
court its reasons for imposing a particular sentence, but that
requirement is satisfied when the court indicates the applicable
guideline range and how it is chosen. United States v. Georgiadis,
933 F.2d 1219, 1222-23 (11th Cir. 1991). Judge Vela performed this
task on the record. He adopted the justifications and
recommendations in the Presentence Report, which stated the
applicable guideline range and how it was chosen, and he stated
that his sentence conformed to the guidelines. Nothing else was
required.
For the foregoing reasons, the decision of the district court
is AFFIRMED.
5
He was deported again on October 31, 1996.
12