IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-9065
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEMENTE TORREZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
(December 1, 1994)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The sole issue before the court on this appeal is whether
the district court committed plain error by failing to consider
whether, under Section 5G1.3 of the United States Sentencing
Guidelines (U.S.S.G.), Torrez' sentence for the instant offense
should be served concurrent to an undischarged state sentence.
We find no plain error, and therefore AFFIRM.
I. FACTS
Clemente Torrez and seven others were named in a thirty-
eight count indictment for conspiring to make false claims
against the government. The indictment charged Torrez with one
count of conspiring to defraud the Internal Revenue Service (IRS)
by filing fraudulent claims for income tax refunds in violation
of 18 U.S.C. § 286, and nine additional counts of making false
claims against the government in violation of 18 U.S.C. §§ 2 and
287.
At the time of his arraignment in federal court, Torrez was
serving an undischarged term of imprisonment in the custody of
the Texas Department of Corrections. In 1991, Torrez was
convicted in two cases of possession of large quantities of
marihuana for which he received concurrent probated sentences of
ten years. On May 24, 1993, Torrez's probation was revoked and
the ten year sentences were reduced to concurrent sentences of
six years. In addition, Torrez was convicted of driving while
intoxicated and indecency with a child for which he received two
more concurrent six-year sentences. Torrez appeared in federal
court on a writ of habeas corpus issued by the U.S. District
Court for the Northern District of Texas. During the pendency of
the federal proceedings, Torrez was in the custody of the U.S.
Marshal.
Pursuant to a plea agreement with the Government, Torrez
entered a guilty plea to the conspiracy count and the Government
dismissed the remaining charges. The district court sentenced
Torrez to 60 months in prison. The court also sentenced Torrez
to three years of supervised release, ordered Torrez to make
2
restitution in the amount of $10,000, and imposed a $50 special
assessment.
The defendant, through counsel, submitted objections to the
application of certain provisions of the sentencing guidelines as
proposed by the presentence investigation report (PSR). However,
the defendant did not object to the district court's failure to
consider whether the sentence it imposed would be served
concurrent with or consecutive to the undischarged term of
imprisonment. There was no suggestion in the PSR and no argument
at sentencing that the sentence should be imposed concurrently
under Section 5G1.3. Thus, the judgment entered by the district
court did not address this aspect of the sentence imposed. Under
these circumstances, the sentence is deemed to be imposed
consecutively to the state sentences. See 18 U.S.C. § 3184.
Torrez timely filed a notice of appeal.
II. DISCUSSION
Torrez contends that the district court erred by failing to
consider whether his federal sentence should have been imposed
consecutively, or concurrently, to an undischarged term of
imprisonment he received in state court when his parole was
revoked. Torrez did not object to the district court's failure
to apply § 5G1.3, either in the Presentence Report (PSR) or at
sentencing. Parties are required to challenge errors in the
district court. When a defendant in a criminal case has
forfeited an error by failing to object, this Court will remedy
3
the error only in the most exceptional case. United States v.
Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). The Supreme Court
has directed the courts of appeal to determine whether a case is
exceptional by using a two-part analysis. United States v.
Olano, ___ U.S. ___, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508
(1993).
First, an appellant who raises an issue for the first time
on appeal has the burden to show that there is actually an error,
that it is plain ("clear" or "obvious"), and that it affects
substantial rights. Olano, 113 S. Ct. at 1777-78; Rodriguez, 15
F.3d at 414-15; FED. R. CRIM. P. 52(b). This Court lacks the
authority to relieve an appellant of this burden. Olano, 113 S.
Ct. at 1781.
Second, the Supreme Court has directed that, even when the
appellant carries his burden, "Rule 52(b) is permissive, not
mandatory. "If the forfeited error is `plain' and `affect[s]
substantial rights,' the Court of Appeals has authority to order
correction, but is not required to do so." Olano, 113 S. Ct. at
1778 (quoting FED. R. CRIM. P. 52(b)). As the Court stated in
Olano:
the standard that should guide the exercise of [this]
remedial discretion under Rule 52(b) was articulated in
United States v. Atkinson, [297 U.S. 157] (1936). The
Court of Appeals should correct a plain forfeited error
affecting substantial rights if the error "seriously
affect[s] the fairness, integrity or public reputation
of judicial proceedings."
Olano, 113 S. Ct. at 1779 (quoting Atkinson, 297 U.S. at 160).
4
Guideline section 5G1.3(c) provides that, in any case other
than those covered under subsections (a) and (b),1 "the sentence
for 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." U.S.S.G. § 5G1.3(c) (policy statement).
The commentary to section 5G1.3, application note 3,
provides guidance for the district court in applying subsection
(c):
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 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.
The record does not reflect that the district court considered
this provision or the methodology suggested by the commentary,
and Torrez argues that the district court's failure to address
the appropriate considerations constitutes plain error under the
standard enunciated by this Court in Rodriguez.
1. Subsection (a) applies where the defendant committed
the instant offense while serving an undischarged term of
imprisonment and subsection (b) applies where the conduct
resulting in the undischarged term of imprisonment has been taken
into account under the relevant conduct provision in determining
the offense level for the instant offense. Neither applied in
the present case.
5
The district court's failure to consider or apply § 5G1.3
was an error under the Olano standard. As defined in Olano:
"[D]eviation from a legal rule is `error' unless the rule has
been waived." Olano, 113 S. Ct. at 1777. In United States v.
Miller, 903 F.2d 341, 347 (5th Cir. 1990), this Court held that
18 U.S.C. § 3584(a) requires the district court to consider the
guidelines when determining whether to impose consecutive or
concurrent sentences. See also United States v. Parks, 924 F.2d
68, 72 (5th Cir. 1991) ("Congress, however, does require that
district courts consider the Guidelines and policy statements
issued by the Sentencing Commission when considering whether
Guideline sentences should run concurrently or consecutively.").
Therefore, the district court's failure to consider the
guideline rules regarding concurrent and consecutive sentences
was an error. The error was also clear and obvious: Torrez'
state convictions and sentences were part of the record and the
PSR, clearly raising questions concerning the imposition of
concurrent or consecutive sentences.
"Normally, although perhaps not in every case, the defendant
must make a specific showing of prejudice to satisfy the
`affecting substantial rights' prong of Rule 52(b)." Olano, 113
S. Ct. at 1778. The defendant attempts to show prejudice in this
case by computing the "approximate total punishment" he would
have received had all his offenses been federal offenses for
which he was sentenced at the same time, as described in the
commentary to section 5G1.3.
6
However, the defendant's argument is not persuasive.
Section 5G1.3 (c) expressly contemplates the imposition of
consecutive sentences: "the sentence for the instant offense
shall be imposed to run consecutively . . . to the extent
necessary to achieve a reasonable incremental punishment for the
instant offense. This language clearly allows the district court
the discretion to determine the "incremental punishment"
appropriate.
In addition, the methodology proposed by note 3 is
permissive only. The specific formula cited by the defendant is
conspicuously preceded by the language "[t]o the extent
practicable, the court should consider . . . ." This language
denotes merely one possible manner of determining the appropriate
incremental penalty. Thus, even if the district court had
considered this provision, it would have been free to decline to
follow the suggested methodology. See United States v. Redman,
35 F.3d 437 (9th Cir. 1994). In other words, the district court
would not have violated this provision if it had considered it
and then determined that imposing the sentence consecutively
provided the appropriate incremental punishment.
It is also worth noting that imposing a consecutive sentence
under section 5G1.3(c) in the present case would have been
consistent with the policy expressed in section 7B1.3, which
applies when a defendant's term of federal probation or
supervised release is revoked. See United States v. Glasener,
7
981 F.2d 973 (8th Cir. 1992). Subsection (f) of that policy
statement provides that
[a]ny term of imprisonment imposed upon the revocation of
probation or supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that
the defendant is serving, whether or not the sentence of
imprisonment being served resulted from the conduct that is
the basis of the revocation of probation or supervised
release.
Although section 7B1.3 is not applicable, it illustrates that the
imposition of a consecutive sentence under 5G1.3 would have been
entirely appropriate in the present case.2
Considering that the defendant's multiple state sentences
were all imposed to run concurrently, and that the calculation
called for under application note 3 would result in no
significant "incremental penalty" for the defendant, we think it
entirely likely that the district court would impose consecutive
sentences expressly upon remand. Under these circumstances, we
hold that the defendant has not made a sufficient showing of
prejudice. Since we find that the defendant has not met this
2. The government points to application note 4 under
section 5G1.3, which mandates a consecutive sentence in cases
where, as here, "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." U.S.S.G. § 5G1.3, app. note 4.
We cannot accept the government's contention that this
provision requires that the instant sentence be imposed
consecutively. Although the facts of the instant case fit
precisely into the scenario contemplated by application note 4,
Torrez was sentenced on October 29, 1993. Thus, the November
1992 edition of the guidelines was in effect at the time. See
United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert.
denied, 114 S. Ct. 170 (1993); see also U.S.S.G. § 1B1.11(a).
Application note 4 was added to the guidelines effective November
1, 1993, and therefore could not have been applied at the time
Torrez was sentenced.
8
burden, we do not address whether the error in the present case
is the type that seriously affects the "fairness, integrity or
public reputation of judicial proceedings."
III. CONCLUSION
For the reasons stated above, the sentence imposed by the
district court is AFFIRMED.
9