United States v. Shawn M. Smith

LAY, Circuit Judge,

dissenting.

The analysis made by the district court in this case is by far the most fair and equitable approach to this problem. The fundamental question is this: does the district court have the discretion to exercise its judgment as to whether Smith’s subsequent sentence should be concurrent or consecutive. To order his federal sentence of 121 months consecutive to the approximately two years remaining on his state revocation sentence is unnecessarily punitive and makes little sense. Although the Sentencing Guidelines suggest a preference for the district court to make the sentence consecutive, by not using the word “shall” there is no question the Sentencing Commission has left discretionary room for the district court to do that which is fair and equitable under the circumstances. In the present case, I think the only opinion that makes any sense is that of the Second Circuit in United States v. Maria, 186 F.3d 65 (2d Cir.1999), which acknowledges the problem and yet upholds the discretionary sentence by the district court in deciding that the sentence should be served concurrently. See id. at 70-72 (concluding “that where the Sentencing Commission chose the word ‘should’ instead of ‘shall’ or ‘must,’ the Commission meant what it said and said what it meant”). Our prior no argument, nonpubl-ished opinion has no precedential value, and under the circumstances, it is certainly not binding upon this or any other court.

I do agree with the majority opinion that this is something the Sentencing Guideline Commission should rectify, but perhaps the Commission has chosen not to do so. The Commission has been requested to clarify this provision in other cases, but has ignored such a suggestion. This strongly indicates to me that the Commission has decided to stay with the word “should,” leaving discretionary room for *1049the district court. After all, the district court understands the factual circumstances much better than this court or the Sentencing Guideline Commission.

This is not simply a semantical debate. It affects a long term sentence by the defendant. Such sentence is hardly based upon any penological goals or ideals. Under the circumstances, the district court should be affirmed.