United States v. Spiers

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit

5-2-1996

USA v. Spiers
Precedential or Non-Precedential:

Docket 95-5335,95-5336

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

Nos. 95-5335 and 95-5336
___________

UNITED STATES OF AMERICA

vs.

PAUL JEROME SPIERS

Appellant.

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 93-cr-00400-01)

___________

ARGUED DECEMBER 13, 1995

BEFORE: ROTH, LEWIS and McKEE, Circuit Judges.

(Filed May 2, l996)

___________

Thomas S. Higgins (ARGUED)
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102

Attorney for Appellant

1
Kevin McNulty
Henry E. Klingeman (ARGUED)
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102

Attorney for Appellee

___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.
This appeal calls upon us to clarify our recent holding

in United States v. Holifield, 53 F.3d 11 (3d Cir. 1995), in

which we addressed the question of a district court's discretion

to impose a concurrent or consecutive sentence under section

5G1.3(c) of the United States Sentencing Guidelines. In

Holifield, we held that "although the district court must

calculate the `reasonable incremental punishment' according to

the [sentencing guidelines'] methodology, it need not impose that

penalty. Id. at 16-17. Today, we reaffirm that a district court

must determine the Guidelines' suggested "reasonable incremental

punishment" according to the commentary's methodology. The

imposition of the commentary's suggested penalty, however,

remains within the district court's discretion. We further hold

that, a court may impose a different penalty or employ a

different method for determining what constitutes a reasonable

incremental punishment as long as it indicates its reasons for

imposing the penalty in such a way as to allow us to see that it

2
has considered the methodology. In this case, the district court

performed the calculations necessary to determine the Guideline's

suggested penalty and provided sufficient reasons for imposing a

different penalty. The order of the district court, therefore,

will be affirmed.

I.

The facts of this case are undisputed. From 1988 until

his arrest in 1991, Paul Spiers embarked upon a veritable one man

crime spree through three states.

The offenses at issue began in New Jersey on August 10,

1988, when Spiers approached a teller at a branch of First

Fidelity Bank in Newark, New Jersey. Spiers handed the teller a

note that read, "Hand me your $100. $50. $20 or your gonna die!

right where you stand [sic] Try anything unordinary and your

gonna see a real blood bath but you'll be First." (Presentence

Report ¶ 10) ("PSR") (emphasis in original). Spiers then told

the teller that she would die if she did not follow his

instructions. The teller obeyed and Spiers left the bank with a

total of $6,800. On May 25, 1989, Spiers entered a Hudson City

Savings Bank branch, also in Newark, New Jersey. This time he

included a small bullet with the note he slipped the teller. The

note read "[p]ass me all your $50 or I am gonna shoot everyone

here quick." (PSR ¶ 23). Spiers walked away from this robbery

with $1,163.

Spiers then made his way to Pennsylvania, where he

robbed the Dauphin Deposit Bank in Harrisburg. This robbery

began on the evening of May 2, 1991, when Spiers tested the

3
bank's perimeter security system. When there was no response, he

broke a window, entered the bank and laid in wait until morning.

When the first employee entered, Spiers put a gun to her head and

commanded her to open the bank's vault. When she said that she

was unable, he made her sit at a desk while training his gun upon

her. He then told her that "[i]f you make a move you can forget

it cause I will kill you." (PSR ¶ 13). While they waited for

other employees to arrive, Spiers questioned her about the bank's

alarm system and the contents of the vault.

After the second employee arrived, Spiers grabbed her

from behind and placed both employees in the bank's ladies room.

The second employee informed him that the alarm would be shut off

at 7:30 a.m. (PSR ¶ 14). A third employee arrived, and Spiers

placed him in the ladies room with the others as well. When the

fourth employee entered and Spiers confronted her, she screamed.

Spiers then asked her when the vault would be open; she answered

that it would be open at 7:40 a.m. Since this was inconsistent

with the other employee's answer (7:30 a.m.), Spiers stated "I

guess we're going to have to play Russian Roulette." (PSR ¶ 16).

He then proceeded to hold his gun to the back of each employee's

head asking them when the vault would be open. They all

responded 7:30 a.m.

When 7:30 a.m. arrived, Spiers had the employees shut

off the alarm, open the vault, and fill two bags with the money

from the vault. After the bags were filled, he forced the

employees into a small bathroom. When a fifth employee entered,

he forced her into the bathroom as well. Spiers then blocked the

4
door and sprayed the room with mace. Spiers left the bank with a

total of $225,550.

A few months later, October 2, 1991, Spiers was found

ransacking a room at the Masters Inn in Little Rock, Arkansas.

Spiers had signed-in under the name "Keith Whitfield." When a

desk clerk asked him to leave, Spiers became angry and began

arguing with the clerk. The security officer, an off-duty police

officer, arrived and identified himself. The officer then

ordered Spiers to "put [his] hands up." In response, Spiers

brandished a 9mm semi-automatic pistol. (PSR Addendum II ¶ 2A).

During the ensuing struggle, Spiers pointed the gun at the clerk

as well. When Spiers eventually overpowered the officer, he

cocked the gun and placed it to the officer's chest telling him

to back up or he would shoot. (PSR Addendum II ¶ 2A). After

demanding the officer's gun, he fled. Later that day, the police

found an abandoned 1983 Oldsmobile in a local park. A search of

the car uncovered a 9mm semi-automatic pistol, crack cocaine, and

a wallet with identification in the name of Keith Whitfield.

One month later, Arkansas police spotted Spiers driving

a 1990 Chevrolet that matched the description of a car stolen in

Little Rock. When they attempted to stop Spiers, a chase ensued.

During the chase, Spiers pulled of the road to hide in an

equipment shed. When police officers attempted to block his

exit, Spiers rammed the police officers' vehicle. The officers

then ordered him to desist and surrender. Spiers once again

rammed their vehicle. The officers then disabled Spiers' vehicle

by firing into the tires, and Spiers surrendered. During his

5
arrest, Spiers identified himself as Keith Whitfield. (PSR

Addendum II ¶ 2B).

While being transported from a county jail to a local

hospital for a medical evaluation and treatment, Spiers attempted

an escape. Spiers overpowered his custodial officer in the

hallway of the medical facility, and took her service revolver.

He then pointed the gun at her demanding the keys to her police

car. When she attempted to stall for time, Spiers fired a shot

above her head. He then searched her and found the keys to his

ankle cuffs. Spiers then ordered her to give him her gun belt,

radio, and raincoat, and the officer complied. (PSR Addendum II

¶ 3A).

Fleeing from the hospital, Spiers encountered a man and

woman getting out of a 1967 Ford. Using the officer's gun,

Spiers stole their vehicle and sped away. He eventually crashed

the car and fled on foot. (PSR Addendum II ¶ 3B). Spiers then

broke into a two-story brick house where he held the occupants of

the house, a husband and wife, hostage. Using the stolen police

radio, Spiers told the police that he was actually holding four

hostages, and demanded that he be able to speak to a Linda

Jackson and a Gerald McNair. (PSR Addendum II ¶ 3C). After

approximately three hours, Spiers surrendered.

Spiers was subsequently convicted in Arkansas of

battery, robbery, escape, theft of property (two counts),

burglary, and kidnapping. (PSR ¶ 63). He was sentenced to

prison for fifty years. (PSR ¶ 66). Under this sentence, the

6
first day Spiers would be eligible for parole is February 1,

2004.

On August 3, 1993, Spiers was indicted in the District

of New Jersey on two counts of bank robbery (18 U.S.C. § 2113)

for the robberies of First Fidelity and Hudson City Savings Bank.

Spiers was then indicted in the Middle District of Pennsylvania

on one count of bank robbery (18 U.S.C. § 2113) for the robbery

of the Dauphin Deposit Bank. The Pennsylvania indictment was

later transferred to New Jersey.

Spiers pleaded guilty to Count One of the New Jersey

indictment and Count One of the Pennsylvania indictment. (PSR

¶ 5). Pursuant to the plea agreement, the district court

dismissed all other counts.

Spiers' sentencing hearing was adjourned twice to allow

the parties and the probation office to submit memoranda on the

application of U.S.S.G. § 5G1.3. App. at 37-46, 62-84. After

hearing argument, the court initially determined that the

sentencing range for the federal crimes alone was 97 to 121

months. The court concluded that pursuant to section 5G1.3, if

it were to treat the Arkansas offenses as federal offenses and

group them with the federal crimes, the total punishment range

under the guideline for both the state and federal offenses would

be 135 to 168 months. The court then declined to impose the

sentencing guidelines' suggested penalty because the "interests

of justice would not be served by following the methodology

suggested by the hypothetical guideline range." App. at 154-55.

The court found that the calculated range was "permeated with

7
questionable variables . . . ." App. at 137. There were many

factors, such as victim impact information and whether Spiers

recklessly created substantial risks of death to his victims,

which might increase a hypothetical federal sentence. Moreover,

Spiers' crimes and behavior were "shocking;" and "[s]ociety

deserves to be protected against the behavior that [Spiers]

engaged in." App. at 156. Consequently, the court found that

Spiers did not "deserve" a concurrent sentence, and ordered him

to serve a 110-month federal sentence to run consecutively from

the completion of his Arkansas state sentence. App. at 157. This

appeal followed.

II.

The district court had jurisdiction over this matter

pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to

18 U.S.C. § 3742 and 28 U.S.C. § 1291. Although our review of

the construction of the Sentencing Guidelines is plenary,

Holifield, 53 F.3d at 13, a district court's decision to impose a

consecutive or concurrent sentence is reviewed for abuse of

discretion. United States v. Nottingham, 898 F.2d 390, 393 (3d

Cir. 1993).

8
 III.

In United States v. Holifield, we stated the under 18

U.S.C. § 3584,1 a sentencing court has the discretion to order a

defendant's sentence to run either concurrently or consecutively

to another undischarged term of imprisonment. 53 F.3d at 13.

This discretion, however, is "subject to section 5G1.3 of the

United States Sentencing Guidelines," id., including the policy

statements and commentary contained in the guidelines which are

binding on the federal courts. See, e.g., Stinson v. United

States, 113 S. Ct. 1913, 1919 (1993) (commentary "must be given

`controlling weight unless . . . plainly erroneous or

inconsistent'" with the guidelines); Williams v. United States,

503 U.S. 193, 201 (1992) (policy statements serve as "an

authoritative guide to the meaning of the applicable Guideline").

Section 5G1.3(c) requires that a defendant's sentence

shall be imposed to run consecutively with an undischarged state

sentence "to the extent necessary to achieve a reasonable

incremental punishment for the instant offense." U.S.S.G.

§ 5G1.3(c) (1994). According to the commentary:
In some circumstances, such incremental
punishment can be achieved by the imposition
of a sentence that is concurrent with the
remainder of the unexpired term of
imprisonment. In such cases, a consecutive
sentence is not required. To the extent
1
18 U.S.C. § 3584(a) provides:

If multiple terms of imprisonment are
imposed on a defendant at the same time, or
if a term of imprisonment is imposed on a
defendant who is already subject to an
undischarged term of imprisonment, the terms
may run concurrently or consecutively . . .

9
 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. It is recognized that this
determination will require an approximation.

U.S.S.G. § 5G1.3 (commentary) (1994) (emphasis added).2 The

commentary itself describes this methodology simply as a means

"to assist the court in determining the appropriate

sentence. . . . Generally, the court may achieve an appropriate

sentence through its determination of an appropriate point within

the applicable guideline range for the instant federal offense

combined with its determination of whether that sentence will run

concurrently or consecutively to the undischarged term of

imprisonment." Id.
In Holifield, we held that while a district court must

calculate the "reasonable incremental punishment" according to

2
A question as to which version of the Guidelines -- 1990 or
1994 -- applied was raised before the district court. In
sentencing Spiers, the district court followed the 1994 version
and our interpretation of that version in Holifield. The
language used in the 1990 version of § 5G1.3 is even more
permissive than the language found in the 1994 version. The
commentary provided that "[t]he court may consider imposing a
sentence for the instant offense that results in a combined
sentence that approximate 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 (commentary) (1990). See United States v. Redman, 35
F.3d 437, 440-441 (9th Cir. 1994) (discussing the history and
evolution of § 5G1.3). Since the district court's discretion is
even greater under the 1990 version of the Guidelines, even if
the use of the 1994 version of the Guidelines might have
constituted error, such error would have been harmless.

10
the commentary's methodology, the imposition of that penalty, is

within the district court's discretion. 53 F.3d at 16.

("although the district court must calculate the `reasonable

incremental punishment' according to the methodology, it need not

impose that penalty."). If the court imposes a different penalty

or employs a different method for calculating the penalty, it

must indicate its reasons for not employing the commentary

methodology. Id. at 16-17 ("the court may employ a different

method in determining the sentence as long as it indicates its

reasons for not employing the commentary method."). As a result,

when determining whether a defendant's sentence is to be

consecutive or concurrent a district court must calculate section

5G1.3's suggested penalty according to the Guidelines'

methodology, and if it abandons that methodology and penalty, the

court must state its reasons "in such a way as to allow us to see

that it has considered the methodology." Id. at 16 (quoting

United States v. Redman, 35 F.3d at 441). We, therefore,

recognized that the commentary's suggested penalty is not the

exclusive or authoritative definition of what constitutes a

reasonable incremental punishment, but merely an example that the

district court must consider.

The majority of the circuits that have addressed this

issue have also concluded that while a district court must

consider the Guidelines' methodology, it need not follow it as

long as it states its reasons for not doing so. See, e.g.,

United States v. Hernandez, 64 F.3d 179, 183 (5th Cir. 1995) ("If

the district court chooses not to follow the methodology, it must

11
explain why the calculated sentence would be impracticable in

that case or the reasons for using an alternate method."); United

States v. Wiley-Dunaway, 40 F.3d 67, 72 (4th Cir. 1994)

(remanding so the district court could "consider" § 5G1.3(c), but

noting that the court "retains the right to depart from" the

methodology); Redman, 35 F.3d at 441 ("True, the court must

attempt to calculate the reasonable incremental punishment that

would be imposed under the commentary methodology. If that

calculation is not possible or if the court finds that there is a

reason not to impose the suggested penalty, it may use another

method to determine what sentence it will impose."). As the

Second Circuit has stated, "[i]n sum, § 5G1.3(c) does not limit

the district court's ultimate discretion under 18 U.S.C. § 3584

to impose concurrent or consecutive sentences. It instead

requires consideration of the basic principle that a consecutive

sentence should be imposed to the extent that it will result in a

reasonable incremental penalty and consideration of the

Commission's preferred methodology for calculating such a

penalty." United States v. Whiteley, 54 F.3d 85, 90 (2d Cir.

1995).3 We have joined the majority of circuits that leave the

ultimate imposition of a concurrent or consecutive sentence to

the sound discretion of the district court.

3
The Second Circuit does not require the court to "employ
the [commentary's] multi-count analysis approach or explain why
it chose an alternative approach," provided the district court
expressly considers § 5G1.3. United States v. Lagatta, 50 F.3d
125, 128 (2d Cir. 1995).

12
 The Eighth Circuit is the only circuit to reach a

different result. That court has held that if a methodology

other than the one set forth in the commentary is used, the

district court must conduct a departure analysis under the

Sentencing Guidelines. See United States v. Duranseau, 26 F.3d

804, 810-11 (8th Cir. 1994); United States v. Brewer, 23 F.3d

1317, 1321-22 (8th Cir. 1994). However, as the Ninth Circuit

noted in Redman, 35 F.3d at 442, the doctrinal basis for that

decision is the Eighth Circuit's decision in United States v.

Gullickson, 981 F.2d 344, 346-48 (8th Cir. 1992), which was based

upon the 1991 version of the Guidelines in which the methodology

was mandatory. The subsequent Eighth Circuit cases which have

interpreted section 5G1.3(c) as imposing greater limits on a

district court's discretion fail to take into account that both

before and after the 1991 version of section 5G1.3(c), the

commentary's methodology was and is permissive. We, therefore,

reject the conclusion that section 5G1.3(c) requires a district

court to conduct a departure analysis if it chooses to impose a

penalty other than the penalty suggested by the commentary's

methodology.

Our decision in Holifield is particularly instructive

in this case. The defendant in Holifield had served 17 months

out of a 21-month state sentence. The district court concluded

that for the federal offense, the Sentencing Guidelines required

a sentencing range of 15 to 21 months. The court then

determined, pursuant to section 5G1.3, that under U.S.S.G.

§ 5G1.2 the total sentence for the combined state and federal

13
offenses would have been 24 months. The defendant argued that

because the combined offense range was 24 months, section 5G1.3

required the court to sentence him to either a 7-month concurrent

term or a 3-month consecutive sentence. The district court

disagreed. The court concluded that because the minimum sentence

for the federal offense was 15 months, it "could have gone no

lower except had I departed and, in fact, I see no circumstances

that would have warranted departure nor have any been set forth."

Holifield, 53 F.3d at 16. We affirmed, noting that "[a]lthough

the defendant did not receive a `combined sentence of

imprisonment that approximates the total punishment that would

have been imposed under § 5G1.2,' such a sentence could not have

been imposed here without a departure from the guidelines. As we

have noted, such a departure is not required under § 5G1.3." Id.

We concluded that even if the court had considered but

rejected the application of the methodology, "we would reach the

same result" because it listed sufficient reasons for imposing a

different penalty. Id. at 16-17. First, the court "went through

the methodology step-by-step." Id. at 17. Second, the court

listed several factors that "warranted a more severe sentence,"

including: that the defendant's prior offense had not been fully

taken into account in determining the offense level for the

instant offense; that most of the victims were elderly and the

financial hardship caused by the defendant was probably

"irremediable;" and that the defendant's conduct was "`parasitic

and outrageous' and he had not shown any remorse for his

actions." Id. We thus concluded that "although the district

14
court properly followed the § 5G1.3 methodology, we believe it

also listed more than sufficient reasons for departing from that

methodology if it had chosen to do so." Id.

A.

Spiers does not explicitly question this interpretation

of Section 5G1.3.4 Instead, Spiers argues that the reasons

offered by the district court when it rejected the suggested

penalty are inadequate. We disagree.

In this case, the district court clearly employed the

commentary's multi-count analysis. App. at 125-139. After

employing the methodology, the district court decided not to

impose the suggested penalty. In doing so, the court stated that

"I have found that the interest of justice would not be served by

following the methodology suggested by the hypothetical guideline

range[]," App. 154-55; instead, the court concluded, a sentence

of 110 months to run consecutively from the completion of the

Arkansas state sentence was a reasonable incremental punishment

for Spiers' federal crimes. App. at 157. Initially, the court

expressed some concern that "many unknown variables continue to

4
Rather, counsel for Spiers implicitly challenges our
conclusion in Holifield that the decision to impose a consecutive
or concurrent sentence remains within a district court's
discretion. At oral argument, Spiers suggested that the
commentary's methodology was the only means for determining what
constituted a reasonable incremental punishment. This argument
totally ignores the advisory nature of the commentary's policy
statement. The commentary's methodology is meant to aid district
courts by suggesting what may be a reasonable incremental
punishment. It does not purport to provide the authoritative and
exclusive definition of such a punishment. Congress left that
responsibility to the district courts in the sound exercise of
their discretion. See supra at 9-13.

15
exist" with the application of the commentary's methodology. App.

at 135. The court was concerned that it did not have many of the

underlying facts of the state offenses which play an integral

role in determining Spiers' sentence. Included in these facts

were victim-impact information, the degree of harm caused by

Spiers during the various assaults, and the number of people

potentially endangered during the various crimes. App. at

135-36. If it had this information, the court expressed a belief

that the sentencing range may be even higher, perhaps 151 to 181

months. App. at 137.5 As a result, the court clearly questioned

the reliability of the commentary's methodology.

More importantly, the court determined that a

concurrent sentence would be inconsistent with the interests of

justice. The district court considered Spiers various offenses a

"reign of terror," referring to him as a veritable "menace to

society" whose conduct endangered correctional officers, police

officers, and "just pure people who try to go about their lives

normally, not committing any crimes." App. at 155. In light of

this, the district court concluded that Spiers simply did not

deserve a concurrent sentence. App. at 157. According to the

court, "I've taken a chance on some people in my lifetime as a

sentencing judge, your record is so bleak, so bad, that I would

5
Spiers argues that the court placed undue emphasis on the
facts of the underlying state offenses. (Appellant's Br. at 14).
This argument fails to appreciate that the commentary's suggested
methodology requires the district court to treat a defendant's
state offenses as federal offenses in order to determine what the
federal sentence would have been under § 5G1.2 had all the
offenses been federal offenses. U.S.S.G. § 5G1.3 (commentary).

16
be making a horrible bet . . . . You don't deserve it. I want

to be very, very candid and straight: You don't deserve it. No

way." App. at 156-57. The district court ultimately concluded

that a consecutive sentence would not only protect society from

any potential future criminal behavior, App. at 156 ("Society

deserves to be protected against the behavior that you've engaged

in."), but would also ensure that Spiers was properly punished

for his crimes. App. at 157 ("I tried to impress upon you that

the crimes which you pled guilty here to are not minor crimes.

What you have sown you are now reaping.").

It is patently clear in this case that in deciding upon

a consecutive sentence, the district court considered the nature

and circumstances of the offense, the history and characteristic

of the offender, and the need for punishment and incapacitation.

The statute which authorizes the imposition of concurrent or

consecutive sentences specifically requires courts to consider

these factors. 18 U.S.C. § 3584(b) ("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)."). United States v. Nottingham, 898 F.2d 390,

393 (3d Cir. 1990). Section 3553(a) provides in pertinent part

that:
. . . The court in determining the
particular sentence to be imposed, shall
consider --

(1) the nature of the circumstances of
the offense and the history and
characteristics of the defendant;

17
 (2) the need for the sentence
imposed --

(A) to reflect the seriousness of
the offense, to promote respect for the law,
and to provide just punishment for the
offense;

(B) to afford adequate deterrence
to criminal conduct;

(C) to protect the public from
further crimes of the defendant . . .

18 U.S.C. § 3553(a). See also Lagatta, 50 F.3d at 128. These

factors are also reflected in the legislative history of U.S.S.G.

5G1.3's enabling statute, 28 U.S.C. § 994(a)(D) which states:
in evaluating whether the sentences should
run concurrently or consecutively, the court
must consider the nature and circumstances of
the offenses and the history and
characteristics of the offense, the need for
just punishment, deterrence, incapacitation,
and rehabilitation, and the sentencing
guidelines and any pertinent policy
statements of the Sentencing Commission. It
is anticipated that in certain activities a
purpose of incapacitation alone might warrant
imposition of consecutive terms of
imprisonment . . . .

S. Rep. No. 98-225, 98th Cong., 2d Sess. 128 (1984), reprinted in
1984 U.S.C.C.A.N. 3182, 3311. In examining the nature of Spiers'

conduct, his history, the need for just punishment and

incapacitation, the court considered factors that it was required

to consider by law, and concluded that given the nature of his

conduct Spiers did not deserve a concurrent sentence, and that a

consecutive sentence would best serve the interests of justice.

The district court's reasons for declining to impose the

commentary's suggested penalty, therefore, are sufficient.

18
 As the district court concluded in this case, a

concurrent sentence would result in no incremental punishment at

all, and would in effect give Spiers a "free ride" for his

federal crimes. As Spiers' state sentence was approximately

thirty-five years longer than the penalty suggested by the

commentary, unless the district court dramatically departed

upward, the imposition of a concurrent sentence would not have

added any incremental punishment for Spiers' federal offenses. As

the Ninth Circuit stated, "the imposition of a sentence which

added no increment for [a defendant's] federal offenses could not

be called the addition of a reasonable increment. Indeed, to say

that a reasonable increment was zero would defy common sense and

common usage. It would amount to the reification of an

oxymoron." Redman, 35 F.3d at 442. See also Lagatta, 50 F.3d at

128 ("A concurrent sentence would serve none of these objectives,

because it would have, in the words of the district court, given

[the defendant] a `free ride.'"). As Spiers' does not challenge

any of the district court's factual conclusions, we must conclude

that the court acted within it discretion when it sentenced

Spiers to serve a consecutive sentence of 110 months. As the

commentary itself recognizes, courts may generally achieve an

appropriate sentence through a determination of an appropriate

point within the applicable guideline range for the federal

offense at issue, and a determination of whether that sentence

will run concurrently or consecutively to the undischarged term

of imprisonment. See U.S.S.G. § 5G1.3 (commentary).

B.

19
 Spiers' final argument is that the district court

failed to make any determination as to exactly when his federal

sentence would commence or what the court deemed the appropriate

total sentence to be. (Appellant's Br. at 19). In other words,

Spiers argues that the district court's sentence was

impermissibly indeterminate. This argument ignores two simple

facts. First, the district court determined exactly when Spiers'

federal sentence would begin -- at the conclusion of his state

sentence. Second, the court also determined what the appropriate

total sentence was -- a consecutive sentence of 110 months.

Accordingly, Spiers knows both when his federal sentence will

begin and how long it will last. Inasmuch as Spiers does not

dispute the district court's determination that a sentence of 110

months falls within the proper range for his federal bank robbery

offenses, his argument is reduced to a reiteration that the

district court should have imposed a concurrent sentence, as

becomes clear upon examination of how Spiers concludes that his

federal sentence is impermissibly indeterminate.

Spiers' argues that because his state sentence is

indeterminate, the district court's sentence amounts to 257

months at the earliest or 417 months at the latest. According to

Spiers, both of these results are inappropriate because they

exceed the commentary's suggested punishment. (Appellant's Br.

at 22). This argument ignores the district court's rejection of

the commentary's suggested punishment. The commentary's

suggested penalty is not a per se limit on the total amount of

time Spiers may serve for his federal and state convictions. It

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is only a suggested penalty which the district court is free to

reject. Having rejected the commentary's suggested penalty, the

district court retained the discretion to impose either a

concurrent or consecutive sentence up to the maximum sentence for

Spiers' federal convictions, in this case 121 months. As

discussed above, the district court's decision to reject the

suggested penalty was within the sound exercise of its

discretion. Spiers' state sentence and federal sentence are

therefore separate and independent penalties which cannot be

aggregated. His federal sentence, therefore, will not fluctuate

in length from 257 months to 417 months depending upon the length

of his state sentence. The federal sentence will remain a

constant 110 months. The only uncertainty, the exact date at

which that 110-month period will begin, is a variable beyond the

district court's control.

Moreover, the case law Spiers relies upon simply does

not apply in situations where the district court has departed

from the commentary's suggested methodology. In support of his

indeterminacy argument, Spiers' cites United States v. Brewer, 23

F.3d 1317 (8th Cir. 1994), and United States v. Yates, 58 F.3d

542 (10th Cir. 1995). Neither case supports the argument that

Spiers' sentence was impermissible. In both Brewer and Yates,

the district courts adopted the Sentencing Guidelines' suggested

punishments and then went on to establish estimates for

completion of the state sentence without adequate evidence to

show when those dates might be. Because the court had adopted

the suggested Guidelines' punishment, the aggregate duration of

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the combined state and federal sentences was vital. Without

sufficient evidence as to the likely length of the state

sentences, the sentences imposed by the district courts failed to

guaranty that the defendants would receive a reasonable

incremental punishment. Thus, in both Brewer and Yates, the

circuit courts vacated the sentences and remanded the cases for

resentencing.

In this case, however, because the district court

rejected the commentary's suggested penalty and instead

determined that the reasonable incremental punishment for Spiers'

federal crimes was a wholly consecutive sentence of 110 months,

the indeterminate nature of Spiers' state sentence will in no way

affect and has no bearing on the duration of his federal

sentence. There is no need, therefore, for the district court to

have made a finding of the likely length of Spiers' Arkansas

state sentence.

Finally, Spiers' argument that the uncertainty of the

exact day that his federal sentence will begin renders the

sentence infirm simply proves too much. The actual date upon

which practically any consecutive sentences will take effect is

uncertain. By definition, a consecutive sentence begins when the

prior sentence is completed. There are many factors, including

the defendant's behavior during incarceration, the decisions of a

parole board, the possibility of an executive pardon or a

successful appeal, and even prison conditions, which might

determine when a defendant will complete his or her sentence.

Because these factors are all beyond a sentencing court's

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control, the sentencing court will never know and can never

determine with any degree of certainty the exact date a defendant

will complete any given sentence. We know of no principle of law

that requires a court to attempt such an exercise in futility;

nor do we know of any principles that render a consecutive

sentencing void or unjust based upon the resulting indeterminacy.

As long as the defendant has adequate notice that a consecutive

sentence may be imposed, a failure to determine the exact

calendar date upon which a consecutive sentence is to begin does

not deny the defendant due process of law. Cf. Burns v. United

States, 501 U.S. 129 (1991) (holding that a district court must

notify the parties that it intends to upwardly depart from the

sentencing range established by the Sentencing Guidelines);

Lankford v. Idaho, 500 U.S. 110 (1991) (holding that a defendant

must have notice that the trial court might sentence him to

death). As the district court's decision to impose a wholly

consecutive sentence was within the sound exercise of its

discretion, the limited uncertainty created by the term of the

underlying state sentence does not render the consecutive federal

sentence infirm.

IV.

For the forgoing reasons, the district court's order

sentencing Spiers to 110 months to be served upon the completion

of his undischarged state sentence will be affirmed.
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