United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 14, 2004
_______________________ Charles R. Fulbruge III
Clerk
No. 02-41734
_______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK ALEXANDER LYNCH,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Sherman Division
Before JOLLY, JONES and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Frank Alexander Lynch pleaded guilty to being a felon in
possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). As an
armed career criminal, Lynch was subject to a 15-year mandatory
minimum sentence under 18 U.S.C. § 924(e)(1). The district court
sentenced Lynch to a 210-month term of imprisonment and ordered the
prison term to run consecutively to the state sentence that Lynch
was serving based on the same course of conduct. Lynch argues that
the district court erred in failing to apply U.S.S.G. § 5G1.3(b),
which required a federal sentence to run concurrently with an
undischarged state sentence if the state sentence resulted from
“offense(s) that have been fully taken into account in the
determination of the offense level” for the federal offense.1
Because we hold that section 5G1.3(b) applies to this case, we
reverse the imposition of Lynch’s sentence and remand for
resentencing.
Lynch’s federal and state convictions both arise out of
the same series of events. On February 22, 2002, police officers
stopped Lynch in McKinney, Texas, for traveling too close to
another vehicle on U.S. Highway 75. As the officers approached
Lynch’s vehicle, they observed him reach toward his waist area and
then look into his rearview mirror. Before the officers reached
the car, Lynch accelerated and sped away. A chase ensued, during
which Lynch ran two stop signs, drove the vehicle the wrong way on
a one-way street, jumped a curb, and finally drove his car into a
creek bed. Lynch then left the vehicle and began to flee on foot.
When the officers caught Lynch, they found a loaded revolver lying
near him on the ground. Lynch was convicted in state court of
evading arrest with a vehicle and was sentenced to two years of
imprisonment. The revolver found near Lynch is the subject of the
federal indictment at issue in this appeal.
1
In November 2003, the guideline at issue in this appeal was
substantially altered; specifically, the “fully taken into account” language was
deleted. See U.S.S.G. § 5G1.3(b) (2003). Neither party argues that the new
language applies to this case.
2
The probation officer assigned a base level of 24 to
Lynch’s offense. He then calculated a four-level increase for
having used or possessed a firearm in connection with another
felony offense, namely “driving a stolen 1998 Saturn automobile.”
Lynch also received a two-level enhancement for obstruction of
justice under section 3C1.2 because he had recklessly created a
substantial risk of death or serious bodily injury to another
during the course of his flight from law enforcement officers. The
resulting offense level of 30 is trumped, however, because Lynch
qualifies as an armed career criminal under section 4B1.4, which
mandates an offense level of 33.2 After receiving a three-level
reduction for acceptance of responsibility, Lynch’s total offense
level equaled 30.
While a district court’s decision to impose a consecutive
rather than concurrent sentence is reviewed for abuse of discre-
tion, this court reviews de novo the district court’s application
of the sentencing guidelines. United States v. Rangel, 319 F.3d
710, 714 (5th Cir. 2001). In addition, issues of guideline
interpretation are subject to de novo review. United States v.
Mitchell, 366 F.3d 376, 378 (5th Cir. 2004). The probation officer
in this case added two levels to Lynch’s total offense level,
pursuant to section 3C1.2, because Lynch’s conduct during his
2
The Guidelines provide that the offense level for an armed career
criminal is the greater of the otherwise-applicable offense level (here, 30) or
the level mandated by section 4B1.4 (here, 33). See U.S.S.G. § 4B1.4 (2001).
3
flight from officers constituted obstruction of justice. This same
conduct formed the basis of Lynch’s state conviction for evading
arrest. Lynch argues that “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) (2001); see also Rangel, 319 F.3d at 714-15;
United States v. Bell, 46 F.3d 442, 445-46 (5th Cir. 1995).
The Government observes that because Lynch was subject to
a mandatory offense level of 33 under section 4B1.4, the
obstruction of justice enhancement made no difference in his
ultimate offense level. Under the Government’s theory, the conduct
forming the basis of the state offense, although considered by the
federal court, was not “fully” considered.
While this court has yet to examine the effect of career
offender provisions on the application of section 5G1.3(b), two of
our sister circuits have recently reached conflicting conclusions
on the issue. In United States v. Rouse, 362 F.3d 256 (4th Cir.
2004), the defendant pled guilty to conspiracy to distribute 50 or
more grams of cocaine base. Two months earlier, the defendant had
pled guilty to distribution of cocaine in state court. Id. at 259.
The same quantity of drugs involved in the state conviction was
attributed to the defendant for the purpose of calculating his
federal offense level. Id. at 263. However, the defendant’s
offense level was ultimately based on the statutory career offender
maximum, not on the drug quantity. Id. The Fourth Circuit
4
concluded that despite this fact, the district court erred in
failing to apply section 5G1.3(b).3 The court reasoned that “[t]he
calculation of an offense level based on relevant conduct is a
necessary step in applying the career offender guideline.” Id.
That is, because the career offender level applies only when it is
greater than the offense level otherwise applicable, the prior
conduct “was in fact taken into account in determining the offense
level applicable to” the defendant. Id. (emphasis added).
In United States v. Jackson, 365 F.3d 649 (8th Cir.
2004), the Eighth Circuit reached the opposite conclusion. In that
case, the defendant was convicted of unlawfully possessing a
firearm. The defendant argued that a prior state conviction, which
arose out of the same criminal transaction as his federal
conviction, mandated that his federal sentence run concurrent to
the undischarged state sentence. Id. at 653. The Eighth Circuit
concluded that because the defendant qualified as an armed career
criminal, his “base offense level was based only on his status as
an armed career criminal and did not take into account the [state
crime].” Id. Thus, section 5G1.3(b)’s mandate did not apply.
We agree with the Fourth Circuit’s reasoning. The
conduct underlying Lynch’s state court conviction for evading
arrest with a vehicle formed the basis for imposing a Chapter Three
3
Despite the court’s conclusion that the district court erred in not
applying section 5G1.3(b), the sentence in Rouse was ultimately affirmed under
the plain error standard of review. Id. at 263-64. Conversely, this case is
governed by the de novo standard of review.
5
enhancement. As the Rouse court noted, “[t]he calculation of an
offense level based on relevant conduct is a necessary step in
applying the career offender guideline.” Rouse, 362 F.3d at 263.
That Lynch’s ultimate offense level was based on a statutory
maximum, and not on the level arrived at after applying chapters
two and three of the sentencing guidelines, does not change the
fact that the conduct underlying the state court offense was “fully
taken into account” in arriving at Lynch’s federal offense level.
Additionally, the Eighth Circuit’s opinion in Jackson may
be distinguishable from the instant case. The Jackson court noted
that the defendant’s prior state conviction was not used when
determining the application of the career offender provision.
“[B]ecause [the defendant] had at least three prior felony offenses
independent of [the prior state court offenses],” section 5G1.3(b)
did not apply. Id. at 654. Thus, under the facts of Jackson, it
seems that none of the conduct underlying the defendant’s prior
state court conviction was considered when calculating his federal
sentence. Instead, the court relies primarily on the fact that the
prior state offenses were not used when applying the career
offender provision. In this case, the conduct underlying Lynch’s
state court conviction for evading arrest with a vehicle was the
basis for a Chapter Three enhancement.
Because Lynch’s state offense was “fully taken into
account” in determining his federal offense level, the district
court erred in failing to apply section 5G1.3(b)’s mandate.
6
However, this does not end our inquiry. “Although subsection (b)
is mandatory, . . . the district court retains its discretion to
impose a sentence consecutively, even where this guideline applies,
by means of a departure.” Rangel, 319 F.3d at 715 (quoting Bell,
46 F.3d at 446). Given the district court’s error, the sentence
imposed constitutes an upward departure from the guidelines. Id.
However, the district court did not indicate that it was upwardly
departing from the guidelines and did not offer any justifications
for the departure. Under similar circumstances, this court in
Rangel remanded for appropriate justifications for the departure.
A similar result should occur here.4
Lynch’s sentence is REVERSED and the case REMANDED to the
district court for resentencing in a manner consistent with this
opinion.
REVERSED and REMANDED.
4
The PROTECT Act, enacted on April 30, 2003, requires that when a
sentence is imposed as a result of “an incorrect application of the sentencing
guidelines,” the case should be remanded for resentencing. 18 U.S.C.
§ 3742(f)(1).
However, the PROTECT Act also prohibits a district court from
departing from the guidelines on remand except upon a ground that “was
specifically and affirmatively included in the written statement of reasons
. . . .” 18 U.S.C. § 3742(g)(2). In this case, the district court did not
provide any justification, much less a written one, for the upward departure.
However, “[a] departure on grounds made newly-germane as a result of our
correction of the sentence can arise only upon resentencing after appeal, and
thus could not have been included in the original statement of reasons.” United
States v. Phipps, 368 F.3d 505, 512-13 (5th Cir. 2004). Because the district
court did not technically depart at the initial sentencing, and because we
authorize the reconsideration of consecutive sentencing upon remand, section
3742(g)(2) does not apply to this case.
7