United States Court of Appeals
For the First Circuit
No. 02-2690, 02-2691
UNITED STATES OF AMERICA,
Appellee,
v.
TREVIS CALDWELL,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.
Robert C. Andrews for appellant.
Margaret D.McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for the United
States.
February 19, 2004
*
Of the District of the District of Columbia, sitting by
designation.
OBERDORFER, Senior District Judge. Defendant, Trevis
Caldwell, appeals from the imposition of a 223-month sentence of
confinement after a spree of state crimes, a brief interlude in the
State of Maine’s Adult Drug Treatment Program, and a more dangerous
spree of federal offenses, including an armed bank robbery. We
find any error in the district court’s calculation of Caldwell’s
criminal history to be harmless, and thus affirm the district
court’s sentence of 223 months imprisonment. However, the district
court should have indicated whether Caldwell’s federal sentence was
imposed consecutively or concurrently to his undischarged state
sentences, necessitating a remand solely for that purpose.
I. BACKGROUND
The factual and procedural background of this case is
complicated by the fact that Caldwell committed the offenses that
led to the federal charges, conviction and sentence in the present
case while he was supposed to be participating in a drug treatment
program ordered by Maine’s Adult Drug Treatment Court as an
alternative to imprisonment for a number of state convictions. We
set forth here only the information material to the issues raised
on appeal: (1) whether the district court erred in its calculation
of Caldwell’s criminal history; and (2) whether the district court
erred in refusing to order that Caldwell’s federal sentence run
concurrently to his undischarged state sentences.
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A. State Proceedings
Before getting into federal trouble, in April 2002,
Caldwell had been charged and convicted of a number of state
offenses.1 Four of those cases were being handled in one of
Maine’s “Adult Drug Treatment Courts,”2 to which Caldwell had been
admitted on March 29, 2002. A defendant whose cases are
transferred to Adult Drug Treatment Court has the opportunity to
avoid imprisonment by entering and successfully completing a drug
treatment program. Failure results in the implementation of an
alternate disposition.3
On April 5, 2002, Caldwell entered into a plea agreement
covering the four cases in Drug Treatment Court. In one case,
Caldwell had already been convicted and sentenced, but he was
facing a probation revocation motion, Maine v. Caldwell, No. 00-335
1
See Maine v. Caldwell, No. 00-183 (Me. Super. Ct. judgment
and commitment Jan. 18, 2001); Maine v. Caldwell, No. 00-335 (Me.
Super. Ct. judgment and commitment Apr. 5, 2001); Maine v.
Caldwell, No. 01-1194 (Me. Super. Ct. plea of guilty entered Apr.
5, 2002); Maine v. Caldwell, No. 02-355 (Me. Super. Ct. plea of
guilty entered Apr. 5, 2002); Maine v. Caldwell, No. 02-356 (Me.
Super. Ct. plea of guilty entered Apr. 5, 2002).
2
See Maine v. Caldwell, No. 00-335 (renumbered No. 02-591);
Maine v. Caldwell, No. 01-1194; Maine v. Caldwell, No. 02-355;
Maine v. Caldwell, No. 02-356.
3
These courts only operate in certain counties. Cases which
are pending in other counties may be transferred to a county with
a Drug Treatment Court with the consent of the presiding judge.
For a more detailed description of these courts, their purpose and
procedures, see App. 61-70, United States v. Caldwell, No 2:02-CR-
65 (D. Me. filed Dec. 10, 2002); App. 213-242 (Drug Treatment
Court’s Policy and Procedure Manual).
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(Me. Super. Ct. Apr. 5, 2001).4 In the other three cases he had
been charged, but not yet convicted or sentenced. See Maine v.
Caldwell, No. 01-1194 (Me. Super. Ct. filed Aug. 10, 2001); Maine
v. Caldwell, No. 02-355 (Me. Super. Ct. filed Oct. 16, 2001); Maine
v. Caldwell, No. 02-356 (Me. Super. Ct. filed Dec. 6, 2001). As a
result of the plea agreement, the drug treatment court revoked
Caldwell’s probation in No. 00-335, and imposed a new sentence of
five months in custody, with credit for the five months he had
already served, to be followed by probation (effectively a sentence
of probation). In each of the other three cases, Caldwell entered
pleas of guilty and sentencing was suspended. The plea agreement
provided that if Caldwell were to successfully complete the drug
treatment program, his eventual sentence for all four cases would
not require him to return to custody.5 If, on the other hand,
4
On April 5, 2001, Caldwell had been sentenced to 364 days in
jail, all suspended, and one year probation. On August 15, 2001,
the Department of Corrections filed a motion to revoke probation,
citing Caldwell’s failure to report and failure to pay restitution.
On January 23, 2002, the court continued the motion to revoke
probation pending completion of Caldwell’s evaluation for
participation in the Adult Drug Treatment Court. On March 28,
2002, the case was transferred to the Drug Treatment Court.
5
Specifically, the plea agreement provided that if Caldwell
successfully completed the drug treatment program, he would receive
the following concurrent sentences of imprisonment in the three
cases where sentencing had been suspended: in No. 01-1194, 30
months, with all but five months suspended, and credit for time
already served, plus three years probation; in No. 02-355, five
months with credit for time already served; and the same in No. 02-
356. As Caldwell had already served five months in No. 00-335,
none of these sentences would actually result in any imprisonment.
-4-
Caldwell failed to complete the drug treatment program, he faced a
total of 22 months imprisonment.6
Almost immediately after entering the drug treatment
program, on April 12, 2002, Caldwell disappeared from the YMCA
where he was supposed to be staying. In June 2002, he was
terminated from the drug treatment program, triggering the
provisions of the plea agreement that applied if he failed to
complete the program. See supra note 6. Pursuant thereto, on
October 29, 2002, the state court revoked Caldwell’s probation in
No. 00-335 and imposed consecutive sentences totaling twenty-two
months imprisonment: six months for the probation revocation in No.
00-335 and a total of sixteen months for the three cases where
sentencing had been suspended, Nos. 01-1194, 02-355, 02-256. As
Caldwell had to be released from federal custody to permit the
state sentencing to proceed, see infra, he never began to serve his
state sentences but was, instead, immediately returned to federal
custody.
At the time Caldwell entered the drug treatment court, he
had one other pending state case. Maine v. Caldwell, No. 00-183
(Me. Super. Ct. judgment and commitment Jan. 18, 2001). This case,
6
Specifically, the plea agreement provided that if Caldwell
failed to complete the drug treatment program, he would receive the
following consecutive sentences of imprisonment: in No. 00-335,
revocation of probation and an additional six months; in No. 02-
355, six months; in No. 02-356, four months; in No. 01-1194, 30
months, with all but six months suspended.
-5-
like No. 00-335, arose out of events that occurred in Oxford
County, Maine, in June 2002.7 In No. 00-183, Caldwell had received
a sentence of nine months in jail, all suspended, and one year
probation. When he was sentenced in No. 00-335, a few months
later, on April 5, 2001, that sentence was imposed concurrently to
his sentence in No. 00-183. However, no motion to revoke probation
was ever filed in No. 00-183, and the case was never formally
transferred to the Drug Treatment Court.
B. Federal Proceedings
On April 13, 2002, the day after he disappeared from the
drug treatment program, Caldwell, with an accomplice, commenced the
series of related offenses, all in Maine, which precipitated his
arrest, federal prosecution, conviction, and sentencing. He began
by robbing a gasoline station convenience store and threatening the
clerk with a knife. A few days later, on April 17, 2002, he robbed
another gasoline station convenience store, making an apparent bomb
threat. And finally, on April 18, 2002, he robbed a bank,
threatening the teller with a sawed-off shotgun. In flight from
7
On June 3, 2000, Caldwell stole an automobile and a cell
phone, leading to his conviction in No. 00-335 for burglary of a
motor vehicle, theft by unauthorized taking or transfer, and theft
by unauthorized use of property. On June 11, 2000, he tried to
avoid being stopped by the police, leading to his conviction in No.
00-183 for eluding an officer and passing a road block. He claimed
that he tried to elude the police on June 11, 2000, because he was
afraid they would discover his June 3, 2002 thefts.
-6-
the bank robbery, he and his accomplice were identified and
arrested in New Hampshire.
After Caldwell’s arrest, he was transferred to federal
custody, in Maine, and charged with a number of federal offenses.
On June 29, 2002, he entered a plea of guilty to five of the six
federal charges pending against him. He has remained in federal
custody since his arrest on the federal charges, except for his
brief release to state authorities for sentencing.
On November 26, 2002, the district court held a hearing
on disputed sentencing issues. Two of its rulings there led to the
present appeal. First, in calculating Caldwell’s criminal history
score, the district court ruled that Caldwell’s two sentences from
his Oxford County cases, 00-335 and 00-183, were not related, as
defined by section 4A1.2(a) of the Sentencing Guidelines. U.S.
Sentencing Guidelines Manual § 4A1.2(a)(2) & cmt. n.3 (2002). As
a result, Caldwell was assigned one criminal history point for his
indeterminate probationary sentence in No. 00-183,8 imposed in
January 2001, and two criminal history points for the six-month
sentence he had received on October 29, 2002, after his probation
was revoked (for the second time) in No. 00-335.9 If the district
8
Section 4A1.1(c) provides: “Add 1 point for each prior
sentence not counted in (a) or (b), up to a total of 4 points for
this item.” U.S.S.G. § 4A.1.1(c).
9
Section 4A1.1(b) provides: “Add 2 points for each prior
sentence of imprisonment of at least sixty days not counted in
(a).” U.S.S.G. § 4A.1.1(a). (Section 4A1.1(a) applies to
-7-
court had ruled that the sentences were related, Caldwell would
have been assigned a total of two criminal history points for both
convictions. Ultimately, Caldwell’s final criminal history score
was 11, placing him in Criminal History Category V;10 had the
district court ruled in his favor, it would have been 10, also in
Criminal History Category V.
The district court also rejected Caldwell’s request to
have his federal sentence run concurrently to his four undischarged
state sentences, ruling that it lacked the power to order that the
federal sentence run concurrently where Caldwell was in federal
custody and had not yet begun to serve his state sentences.
Caldwell’s guideline range, based on an offense level of
24 and a criminal history category of V, was 92-115 months
imprisonment. On December 11, 2002, the district court sentenced
him to 103 months each on four of the counts of conviction, to run
concurrently, and a mandatory consecutive sentence of 120 months on
the remaining count.
II. DISCUSSION
We review the district court's interpretation and
application of the United States Sentencing Guidelines de novo and
its findings of fact for clear error. See United States v. Maxwell,
sentences exceeding one year and one month. Id. § 4A1.1(a).)
10
The total Criminal History includes points assigned for other
prior convictions, including the three other cases that had been
transferred to the drug treatment court.
-8-
351 F.3d 35, 42 (1st Cir. 2003); United States v. Gonzalez-Alvarez,
277 F.3d 73, 77 (1st Cir. 2002).
A. Criminal History
On appeal, Caldwell challenges the district court’s
calculation of his criminal history on the ground that under
section 4A1.2 of the Guidelines it should have treated his two
Oxford County convictions as related.
Section 4A1.2 provides:
Prior sentences imposed in unrelated cases are
to be counted separately. Prior sentences
imposed in related cases are to be treated as
one sentence for purposes of § 4A1.1(a), (b),
and (c). Use the longest sentence of
imprisonment if concurrent sentences were
imposed and the aggregate sentence of
imprisonment imposed in the case of
consecutive sentences.
U.S.S.G. § 4A1.2 (emphasis added). Application Note 3 further
defines the term “related cases,”
Related Cases. Prior sentences are not
considered related if they were for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). Otherwise, prior sentences are
considered related if they resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for
trial or sentencing. The court should be
aware that there may be instances in which
this definition is overly broad and will
result in a criminal history score that under
represents the seriousness of the defendant’s
criminal history and the danger that he
presents to the public.
-9-
Id. § 4A1.2, cmt. n.3.
If Caldwell’s two Oxford County convictions had been
treated as related, they would have netted two, instead of three,
criminal history points, and his criminal history score would have
fallen from eleven to ten. However, a criminal history score of
ten would still have left Caldwell in Criminal History Category V,
leaving his sentencing guideline range unchanged. Accordingly, any
error in the district court’s calculation of Caldwell’s criminal
history was harmless.
B. Consecutive v. Concurrent Sentence
Caldwell also challenges the district court’s refusal to
order that his federal sentence run concurrently to his four
undischarged state sentences. When a federal court is imposing
sentence on a defendant with an undischarged term of imprisonment,
it has the authority to decide whether its sentence should run
concurrently or consecutively to the undischarged term of
imprisonment. 18 U.S.C. § 3584(a).11 The exercise of that
11
In relevant part, section 3584(a) provides:
(a) Imposition of concurrent or consecutive terms.-
. . . [I]f a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term
of imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run
consecutively for an attempt and for another offense that
was the sole objective of the attempt. Multiple terms of
imprisonment imposed at the same time run concurrently
unless the court orders or the statute mandates that the
terms are to run consecutively. Multiple terms of
imprisonment imposed at different times run consecutively
-10-
authority is predicated on the court’s consideration of the factors
listed in 18 U.S.C. § 3553(a), see 18 U.S.C. § 3584(b),12 and “any
applicable guidelines or policy statements issued by the Sentencing
Commission,” see U.S.S.G. § 5G1.3, cmt. background.13 Section 5G1.3
of the Sentencing Guidelines addresses the “Imposition of a
Sentence on a Defendant Subject to an Undischarged Term of
Imprisonment”: part (a) specifies when consecutive sentences are
required; part (b) specifies when concurrent sentences are
unless the court orders that the terms are to run
concurrently.
18 U.S.C. § 3584(a).
12
In its entirety, section 3584(b) provides:
(b) Factors to be considered in imposing concurrent or
consecutive terms.--The court, in determining whether the
terms imposed are to be ordered to run concurrently or
consecutively, shall consider, as to each offense for
which a term of imprisonment is being imposed, the
factors set forth in section 3553(a).
18 U.S.C. § 3584(b).
13
In its entirety, the Background Note for section 5G1.3 of the
Sentencing Guidelines states:
Background: In a case in which a defendant is subject to
an undischarged sentence of imprisonment, the court
generally has authority to impose an imprisonment
sentence on the current offense to run concurrently with
or consecutively to the prior undischarged term. 18
U.S.C. § 3584(a). Exercise of that authority, however,
is predicated on the court's consideration of the factors
listed in 18 U.S.C. § 3553(a), including any applicable
guidelines or policy statements issued by the Sentencing
Commission.
-11-
required; part (c) covers “any other case” and gives the district
court the discretion to impose sentence concurrently or
consecutively, “to achieve a reasonable punishment for the instant
offense.” U.S.S.G. § 5G1.3(a)-(c).14
The present case presents an unusual set of facts.
Caldwell was arrested and taken into federal custody before he was
sentenced for his state offenses. He was briefly released to state
custody, solely for the purpose of sentencing, and then returned to
federal custody. At the time he was sentenced for his federal
offenses, thus, he had undischarged state sentences that he had not
yet begun to serve and that, in the ordinary course, he would not
begin to serve until released from federal custody.
The district court concluded that this case was governed
by part (c) of section 5G1.3 of the Sentencing Guidelines, but that
he was unable to exercise his discretion thereunder because there
was nothing he could do to get Caldwell’s state sentences to start
to run once he remanded Caldwell to the custody of the Federal
Bureau of Prisons to serve his federal sentence. The district
court explained his ruling as follows:
14
In its entirety, section 5G1.3(c) provides:
(c) (Policy Statement) In any other case, the sentence
for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.
U.S.S.G. § 5G1.3(c).
-12-
If there’s anything to impose – to deal
with in [Sentencing Guideline §] 5G1.3 here,
it will be under (c), the discretionary part.
. . .
I’m not able to impose a concurrent
sentence because the defendant is not serving
a state sentence. And notwithstanding
[counsel’s] arguments about a Federal Judge’s
power, I can’t make the state sentence start
to run.
I can and I will remand this defendant
on sentencing to the custody of the Bureau of
Prisons, the Federal Bureau of Prisons, but
they, too, cannot make a state sentence start
to run. All they can do is at the right time
release the defendant to the state for him to
begin to serve his state sentence. So the
most I could do if the guidelines permitted me
was to treat this as some kind of departure or
basis for reducing the sentence to reflect a
state sentence to follow later.
We agree with the district court that it lacked the power
to order Caldwell’s state sentences to begin to run. And we
further agree that, under the unusual circumstances of this case,
the district court’s lack of power to order a state sentence to
begin to run poses a significant practical impediment to Caldwell’s
achieving concurrent service of his state and federal sentences,
should the federal sentences be imposed to run concurrently.
However, we see no basis for concluding that these practical
problems deprive the district court of its discretion, or the power
to exercise that discretion, to impose its sentence concurrently or
consecutively to the undischarged state sentences. See 18 U.S.C.
-13-
§ 3584(a); U.S.S.G. § 5G1.3 (c).15 Accordingly, we remand to permit
the district court to exercise its discretion to impose Caldwell’s
federal sentence to run concurrently, partially concurrently or
consecutively to his undischarged state sentences. If the district
court should decide to impose Caldwell’s federal sentence either
concurrently, or partially concurrently, to any of his undischarged
state sentences, Caldwell can then seek to overcome the practical
barriers to concurrent service in whatever manner he sees fit.16
On remand, the district court’s discretion to impose
Caldwell’s federal sentence to run concurrently does not apply to
Caldwell’s six-month sentence imposed in 00-335. Application Note
6 to section 5G1.3 provides:
If 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, the sentence for the instant offense
should be imposed to run consecutively to the
term imposed for the violation of probation,
parole, or supervised release in order to
provide an incremental penalty for the
violation of probation, parole, or supervised
release.
15
This case does not fall into the category of cases where the
district court’s “silence” leads to a presumption that the
sentences run consecutively. See 18 U.S.C. § 3584(a). The issue
was raised before the district court, and the only reason why the
district court did not rule on the Caldwell’s request for a
concurrent sentence was its mistaken belief that it lacked the
discretion to do so.
16
One, but probably not the only possibility, would be for
Caldwell to ask the state court to count his time in federal prison
as service of his state sentence.
-14-
U.S.S.G. § 5G1.3, cmt. n.6. This court has held that this
Application Note is “mandatory.” See United States v. Chapman, 241
F.3d 57, 61 (1st Cir. 2001); see also United States v. Gondek, 65
F.3d 1, 3 (1st Cir. 1995).
When Caldwell committed the offenses leading to his
federal sentence, he was on probation in 00-335. His probation in
that case was revoked, and a six-month sentence imposed. That six-
month sentence is one of Caldwell’s four undischarged state
sentences. Accordingly, Caldwell’s 223-month federal sentence must
be imposed consecutively to that six-month state sentence. For the
other three undischarged state sentences, however, no such
constraint applies. At the time Caldwell committed his federal
offenses, sentencing had been suspended in each of those cases.
Thus, he was not on “state probation, parole, or supervised
release” in any of those cases, and the state sentences he
eventually received, for a total of 16 months imprisonment, were
not “imposed for the violation of probation, parole, or supervised
release.” Accordingly, the district court has discretion to impose
Caldwell’s federal sentence to run concurrently or consecutively to
16 months of Caldwell’s state sentence.
III. CONCLUSION
For the reasons stated in the foregoing opinion, we
affirm the district court’s calculation of Caldwell’s criminal
history and its imposition of a 223-month sentence of imprisonment.
-15-
We remand for the limited purpose of having the district court
indicate whether that sentence is imposed concurrently with or
consecutively to Caldwell’s undischarged state sentences.
Affirmed in part, remanded in part.
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United States v. Caldwell
Court: Court of Appeals for the First Circuit
Date filed: 2004-02-19
Citations: 358 F.3d 138
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