15‐3449
United States v. Olmeda
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2017
(Submitted: February 28, 2018 Decided: June 22, 2018)
Docket No. 15‐3449
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UNITED STATES OF AMERICA,
Appellee,
—v.—
ANTONIO OLMEDA,
Defendant‐Appellant.
_______________
B e f o r e:
KATZMANN, Chief Judge, LEVAL, Circuit Judge, and CARTER, District Judge.*
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Defendant‐Appellant Antonio Olmeda was sentenced to 151 months’
imprisonment for various firearms offenses. He received a four‐level sentence
enhancement for related felony offenses that were pending in state court at the
time of the federal sentencing. Olmeda argues that under U.S.S.G. § 5G1.3(c),
* Judge Andrew L. Carter, of the United States District Court for the Southern
District of New York, sitting by designation.
which instructs that a federal sentence “shall . . . run concurrently” to “a state
term of imprisonment [that] is anticipated to result from another offense that is
relevant conduct to the instant offense of conviction,” the district court erred by
not ordering that his federal sentence run concurrent to any ensuing state
sentence. We hold that Section 5G1.3(c) applies where state charges for relevant
conduct are pending at the time of the federal sentencing. Because the district
court did not ultimately address Olmeda’s request for a concurrent sentence, we
REMAND with instructions for the district court to vacate the sentence and
resentence in a manner consistent with this opinion.
_______________
Shane T. Stansbury and Sarah K. Eddy, Assistant United States
Attorneys, for Geoffrey S. Berman, United States Attorney for
the Southern District of New York, New York, NY, for
Appellee.
Antonio Olmeda, pro se, Dannemora, NY, for Defendant‐Appellant.
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PER CURIAM:
Defendant‐Appellant, Antonio Olmeda, who was convicted of multiple
firearm offenses, appeals his 151‐month sentence. He argues that the district
court (Berman, J.) erred by not ordering that his federal sentence run concurrent
to any sentence that ensued from then‐pending state charges. In support,
Olmeda cites U.S.S.G. § 5G1.3(c) of the Federal Sentencing Guidelines, which
instructs that a federal sentence “shall be imposed to run concurrently” to “a
state term of imprisonment [that] is anticipated to result from another offense
2
that is relevant conduct to the instant offense of conviction.” This Court has not
addressed when “a term of imprisonment is anticipated” under Section 5G1.3(c).
We now hold that Section 5G1.3(c) applies where state charges are pending—but
have not yet been the subject of a trial or a guilty plea—at the time of the federal
sentencing. In doing so, we do not fault the district court for not foreseeing what
we hold today.
In this case, Olmeda not only faced state charges for relevant conduct at
the time of his federal sentencing, but also received a substantial federal
sentencing enhancement because of those pending charges. There is no
indication in the record that the district court considered Section 5G1.3(c)’s policy
statement when imposing the final sentence, and, because the state charges
significantly increased Olmeda’s Guidelines range, we cannot be confident that
the district court would have imposed the same sentence had it done so.
Accordingly, we REMAND with instructions for the district court to vacate the
sentence and resentence in a manner consistent with this opinion.1
1 A summary order issued simultaneously with this opinion addresses the
balance of Olmeda’s claims on appeal.
3
BACKGROUND
In December 2011, New York authorities arrested Olmeda for attempted
murder, attempted assault on a police officer with a deadly weapon, attempted
assault, and criminal possession of a weapon. All these charges related to an
altercation with New York police officers the prior week. At the time of the
arrest, Olmeda had two firearms in his possession. Later searches of his home
and storage locker revealed a cache of over 20 additional firearms.
In August 2013, while state proceedings were ongoing, a federal grand
jury returned a six‐count indictment against Olmeda. It charged three counts of
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
three counts of possession of unregistered firearms, in violation of 26 U.S.C. §§
5845, 5861(d). Later that month, Olmeda was transferred to federal custody.
Olmeda waived his right to counsel and pleaded guilty to the six federal counts
in October 2014.
At the federal sentencing, the government argued that Olmeda should
receive a four‐level enhancement under U.S.S.G. § 2K2.1(b)(6) because he used
one of the firearms in connection with another felony offense—the altercation
4
with the New York police officers at issue in the state charges (the “relevant
conduct enhancement”). Olmeda opposed that enhancement. He also asked the
district court to direct that his federal sentence be served concurrently with any
term of imprisonment for the pending state charges pursuant to U.S.S.G. § 5G1.3.
In the first of five sentencing hearings, the district court initially rejected
the four‐level relevant conduct enhancement, explaining that the “state charges
are proceeding on one path and these federal charges are proceeding on another
path.” D. Ct. Dkt. No. 79 at 22. Likewise, the court declined to order a concurrent
sentence, explaining, “[t]here is no sentence. Indeed, there is no conviction yet in
the state case. So this federal sentence stands on its own today and what happens
in state court will be up to the state court.” D. Ct. Dkt. No. 79 at 17–18. Under this
approach, the court calculated a Guidelines range of 78 to 97 months. The
government objected to the district court’s decision not to apply the
enhancement and requested a Fatico hearing so that it could prove the facts
supporting the four‐level increase.
The Fatico hearing was held in July 2015. After the hearing, the district
court concluded that the government had proven the state offenses at issue in the
5
relevant conduct enhancement by a preponderance of the evidence. Thus, at the
final sentencing hearing, which occurred in October 2015, the district court
applied the associated four‐level increase and calculated a Guidelines range of
121 to 151 months. The district court briefly inquired as to the status of the state
proceedings and was informed that Olmeda had not yet been convicted. The
district court did not revisit Olmeda’s request that his federal sentence be served
concurrent with any forthcoming state sentence. After addressing Olmeda’s
other objections, the district court sentenced him to 151 months. This appeal
timely followed.
DISCUSSION
I. Standard of Review
The proper interpretation of the Guidelines is a question of law subject to
de novo review. United States v. Lisyansky, 806 F.3d 706, 709 (2d Cir. 2015) (per
curiam). The substantive and procedural reasonableness of a particular sentence
is reviewed under an abuse‐of‐discretion standard. United States v. Johnson, 567
F.3d 40, 51 (2d Cir. 2009).
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II. Application of Section 5G1.3(c)
On appeal, Olmeda—still proceeding pro se—argues that because of the
New York charges pending at the time of his federal sentencing, U.S.S.G. §
5G1.3(c)’s policy statement regarding “anticipated” state sentences applied. For
that reason, he contends, the district court erred by not ordering that his federal
sentence run concurrent with any ensuing state sentence. We begin by
addressing whether Olmeda is correct that U.S.S.G. § 5G1.3(c) applies when state
charges are pending but a defendant has not yet been convicted.
A. “Anticipated” State Sentence
Sentencing is “a matter of discretion traditionally committed to the
Judiciary.” Setser v. United States, 566 U.S. 231, 236 (2012). When multiple
sentences are imposed simultaneously, or a prior sentence has already been
imposed, including in state proceedings, “[j]udges have long been understood to
have discretion to select whether the sentences they impose will run concurrently
or consecutively.” Id. Where a state sentence has not yet been imposed, views
about judicial authority have been more dynamic.
7
Although courts had long held that a federal judge’s authority to impose a
concurrent or consecutive sentence “may be exercised regardless of whether the
state sentence has yet been imposed,” Salley v. United States, 786 F.2d 546, 547 (2d
Cir. 1986), passage of the Sentencing Reform Act generated uncertainty about
this traditional view. That statute, which went into effect in 1987, explains that
sentences “may run concurrently or consecutively” when “multiple terms or
imprisonment are imposed . . . 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.” 18 U.S.C. § 3584(a). Because Section 3584(a) did not address
defendants who were sentenced in federal court when “the state court had not
yet imposed any prison term on the then‐pending state charge,” we later
concluded that district courts no longer had authority to order that the federal
sentence run consecutively to an expected state sentence. United States v. Donoso,
521 F.3d 144, 149 (2d Cir. 2008) (per curiam).
A few years later, the Supreme Court took up the issue in Setser v. United
States. There a defendant whose federal sentence was ordered to be served
consecutive to the sentence associated with then‐pending state charges argued—
8
consistent with Donoso—that the sentence violated Section 3584(a). Concluding
that “nothing in the Sentencing Reform Act, or in any other provision of law, . . .
show[s] that Congress foreclosed the exercise of district courts’ sentencing
discretion in these circumstances,” the Court held that district courts retained
discretion to order that a federal sentence run consecutively (or concurrently)
“where a federal judge anticipates a state sentence that has not yet been
imposed.” 566 U.S. at 236–37.
In the wake of Setser, the United States Sentencing Commission amended
U.S.S.G. § 5G1.3 by adding subsection (c)—the provision at issue here. This
provision states, “If . . . a state term of imprisonment is anticipated to result from
another offense that is relevant conduct to the instant offense of conviction . . . ,
the sentence for the instant offense shall be imposed to run concurrently to the
anticipated term of imprisonment.” U.S.S.G. § 5G1.3(c). According to the
accompanying commentary,
This amendment is a . . . response to the Supreme Court’s decision in
Setser . . . . [It] reflects the Commission’s determination that the
concurrent sentence benefits of subsection (b) of § 5G1.3 should be
available not only in cases in which the state sentence has already
been imposed at the time of federal sentencing (as subsection (b)
provides), but also in cases in which the state sentence
9
is anticipated but has not yet been imposed . . . . By requiring courts
to impose a concurrent sentence in these cases, the amendment
reduces disparities between defendants whose state sentences have
already been imposed and those whose state sentences have not yet
been imposed.
U.S.S.G. § 5G1.3, Historical Notes, 2014 Amendments.
Although Section 5G1.3(c) does not define the word “anticipated,” we
understand this term to bear the same meaning it had in Setser, the genesis for
the amendment. It follows that an “anticipated” state sentence must, at
minimum, encompass sentences associated with state charges for relevant
conduct that are pending at the time of a defendant’s federal sentencing. Cf.
United States v. Looney, 606 F. App’x 744, 748 (5th Cir. 2015) (per curiam) (holding
that “the district court has the discretion to impose a sentence concurrent with a
future state sentence when state charges are pending against the defendant”); see
also United States v. Tysor, 670 F. App’x 185, 186–87 (4th Cir. 2016) (per curiam)
(recognizing that a district court can order that a federal sentence be served
concurrent with any sentence ensuing from pending state charges).
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B. The District Court’s Ruling
Under the foregoing interpretation, Section 5G1.3(c) squarely applied to
Olmeda’s federal sentencing.2 A “state term of imprisonment [was] anticipated to
result” from the pending New York charges, and the Revised Pre‐Sentence
Report acknowledged that the state charges were “relevant conduct to the instant
offense of conviction” under U.S.S.G. § 1B1.3(a)(1). Indeed, the state offenses
were not simply relevant, they formed the basis for the four‐level enhancement
that increased Olmeda’s Guidelines range by over fifty percent.
Because Section 5G1.3(c) was a “pertinent Sentencing Commission policy
statement,” the district court was required to “take [it] into account.” United
States v. Cavera, 550 F.3d 180, 188–89 (2d Cir. 2008) (en banc) (citing 18 U.S.C. §
3553(a)(5)). But, the district court’s only reference to Olmeda’s request for a
concurrent sentence was superseded by subsequent events. At the first
2 The government initially argued that Section 5G1.3(c) did not apply to Olmeda
because his guilt for the state offenses had not been established when his federal
sentence was imposed. However, after being ordered to provide supplemental briefing
on this question, it now concedes that “an ‘anticipated’ state sentence includes a
sentence expected to follow upon state charges of which the defendant has not yet been
convicted.” Gov. Supp. Br. at 1.
11
sentencing hearing, when the district court declined the request, the court
viewed the “state charges [as] proceeding on one path [while] these federal
charges are proceeding on another path.” D. Ct. Dkt. No. 79 at 22. When the
district court later reversed course and decided to apply the relevant conduct
enhancement, these paths converged. Yet, the district court did not revisit
Olmeda’s request for a concurrent sentence. Because the district courts must
“remain cognizant of [the Guidelines] throughout the sentencing process,” Gall v.
United States, 552 U.S. 38, 50 n.6 (2007), this was akin to the district court not
recalculating the defendant’s Guidelines range, Cavera, 550 F.3d at 190.
The government takes a different view, insisting that the district court
properly declined to order a concurrent sentence on the basis that it lacked
sufficient information. Although the sentencing transcripts contain no statement
to this effect, the government infers that the district court declined to follow
Section 5G1.3(c) because, at the time of the federal sentencing, no state trial date
had been set and the charges were unproven. We disagree with this
interpretation of the record. The district court did briefly inquire as to the status
of the state proceedings, but there is no indication that the absence of a trial date
12
was the reason the district court did not order a concurrent sentence. As to the
fact that the charges had not yet been proven beyond a reasonable doubt, this is
inherent in a posture involving pending state charges. Because Section 5G1.3(c)
recommends a concurrent sentence in this circumstance, we cannot presume that
the district court declined to follow the Guidelines simply because the defendant
had not yet been convicted.
Alternatively, the government argues that any error the district court
committed in failing to address Section 5G1.3(c) did not impair Olmeda’s
substantial rights. To be sure, this Court has held that where “the record
indicates clearly that the district court would have imposed the same sentence in
any event, [a procedural] error may be deemed harmless.” United States v. Jass,
569 F.3d 47, 68 (2d Cir. 2009) (internal quotation marks omitted). But, we have
also cautioned that we will not “lightly assume that” proper attention to the
Guidelines “would not affect the sentence.” United States v. Feldman, 647 F.3d 450,
460 (2d Cir. 2011). The Court is “especially wary of making such an assumption”
where, in the absence of an error, the defendant’s Guidelines range would have
been substantially lower. Id. Here, the relevant conduct enhancement increased
13
Olmeda’s Guidelines range by more than fifty percent. And, because the district
court never addressed Olmeda’s request for a concurrent sentence after applying
the enhancement, we cannot be confident that it would have imposed the same
sentence had it considered the policy statement in Section 5G1.3(c). As a result,
we cannot conclude that the procedural error was harmless.
CONCLUSION
For the foregoing reasons, we REMAND with instructions to vacate the
sentence and resentence in a manner consistent with this opinion.3
3 The record indicates that Olmeda’s state sentence was imposed in July 2016. If
so, at resentencing Olmeda’s state conviction will be considered a prior offense
governed by Section 5G1.3(b), which also advises that the federal sentence “shall be
imposed to run concurrently” to the state sentence.
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United States v. Olmeda
Combined Opinion