UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-10241
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BENNY LAVERN COLLINS
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:92-CR-141-R)
December 21, 1995
Before REYNALDO G. GARZA, KING, and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Benny Collins was convicted of a Hobbs Act1 robbery and of
using a firearm while committing that robbery. He was sentenced to
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
18 U.S.C. § 1951(a).
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consecutive terms of 240 months for the robbery and 60 months for
the firearm offense. At the time of sentencing, he was serving an
18 year sentence for other crimes he committed in California. The
district court ordered that his federal sentence run consecutive to
his California sentence. Collins argues that the district court
erred in imposing the 240 month Hobbs Act robbery sentence to run
consecutive to the California sentence.2
Collins argues that the district court erred in refusing to
apply U.S.S.G. § 5G1.3(c)(policy statement), which he contends
would have required the district court to impose the sentence to
run concurrent with the California sentence. Although a district
court has discretion to impose a sentence concurrently or
consecutively, 18 U.S.C. § 3584(a), this circuit requires district
courts to consider the applicable portions of the sentencing
guidelines in exercising that discretion. United States v. Krout,
66 F.3d 1420, 1435 (5th Cir. 1995). In this case, the applicable
Sentencing Guideline is U.S.S.G. § 5G1.3(c)(policy statement),
which provides:
. . . the sentence to the instant offense shall 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.
Application Note 3 to U.S.S.G. § 5G1.3(c)(policy statement)
provides guidance in determining whether a consecutive or a
concurrent sentence achieves a reasonable incremental punishment.
2
Collins admits that, by statute, the 60 month firearms
sentence must run consecutive to the 240 month Hobbs Act robbery
sentence. See 18 U.S.C. § 924(c).
2
Application Note 3 provides:
. . . the court should consider a reasonable incremental
penalty to be a sentence that approximates the total
punishment that would have been imposed under § 5G1.2
(Sentencing on Multiple Counts of Conviction) had all the
offenses been federal offenses for which sentences were
being imposed at the same time.
The district court, using the methodology suggested by
Application Note 3, determined that, had all the offenses been
federal offenses for which sentences were being imposed at the same
time, Collins would have received a 262 month sentence. However
the district court declined to apply the Application Note 3
methodology, and imposed the sentence to run consecutively. This
consecutive sentence, when combined with the California sentence,
would result in Collins being incarcerated for considerably longer
than 262 months.
Application Note 3's suggested methodology is advisory only.
United States v. Torrez, 40 F.3d 84, 87 (5th Cir. 1994). The
district court has the discretion to reject the suggested
methodology, so long as it first considers the methodology's
possible application in reaching a reasonable incremental
punishment. United States v. Hernandez, 64 F.3d 179, 183 (5th Cir.
1995). If the district court declines to follow the suggested
methodology, it must explain why it is doing so. Id. As long as
it gives an adequate explanation, a district court is then free to
impose a sentence that it believes provides an appropriate
incremental punishment. Id.
In the instant case, the district court considered the
suggested methodology's possible application, and then declined to
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apply it. The court explicitly stated its reason: applying the
methodology would unduly complicate and prolong the sentencing
process. The court also stated that the sentence was justified by
"the nature of the offense . . . and because of the defendant's
extensive criminal history." Both of these reasons are adequate to
justify the district court's rejection of Application Note 3's
suggested methodology.
We therefore AFFIRM the district court.
AFFIRMED.
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