UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1065
UNITED STATES OF AMERICA,
Appellee,
v.
LANCER SCOTT GONDEK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and Schwarzer,* Senior District Judge,
James S. Hewes, by Appointment of the Court, for appellant.
F. Mark Terison, Assistant United States Attorney, with whom Jay
P. McCloskey, United States Attorney, and Jonathan R. Chapman,
Assistant United States Attorney, were on brief for appellee.
September 6, 1995
*Of the District of Northern California, sitting by designation.
BOUDIN, Circuit Judge. In November 1992, Lancer Scott
Gondek was convicted in Maine Superior Court of robbery and
burglary and sentenced to prison. While on parole after
imprisonment, Gondek was arrested in March 1994 for
possession of a firearm. The federal government indicted him
under the felon in possession statute. 18 U.S.C.
922(g)(1), 924(a)(2). In consequence of his arrest, his
failure to attend a drug treatment program, and his alcohol
use, the state court revoked Gondek's parole and imposed on
him a three-year prison sentence. Gondek then pled guilty in
federal court to a single count of firearms possession.
In January 1995, the district court imposed a 77-month
sentence on Gondek and concluded that the Sentencing
Guidelines required the federal sentence to run consecutively
to the state sentence imposed after the parole violation.
Gondek has now appealed the federal sentence, arguing that a
consecutive sentence was not mandatory and should not have
been ordered. His only substantial argument involves the
interpretation of U.S.S.G. 5G1.3, a set of provisions that
are less than a model of clarity.
Section 5G1.3 governs the imposition of sentences on
defendants who are convicted of a crime while subject to an
undischarged term of imprisonment for a previous conviction.
Under subsection (a), the new sentence must be consecutive if
a defendant is convicted for a crime committed while "serving
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a term of imprisonment (including work release, furlough, or
escape status), or after sentencing for, but before
commencing service of, such term of imprisonment."
Subsection (b) provides for a concurrent sentence where the
undischarged term resulted from offenses "that have been
fully taken into account" (e.g., as an adjustment) in
determining the offense level for the present offense.
Finally, under subsection (c) in all other cases the new
sentence is to be consecutive "to the extent necessary to
achieve a reasonable incremental punishment for the instant
offense."
The commentary for subsection (c) gives the court some
latitude in determining what is a "reasonable incremental
punishment," although it offers one generalization that
covers a good many cases: application note 3 says that to
the extent practicable, the court should achieve the total
punishment that would have been imposed "had all of the
offenses been federal offenses for which sentences were being
imposed at the same time." The commentary concludes with
application note 4, added in 1993, which reads as follows:
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 be
served 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
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supervised release (in accord with the policy
expressed in 7B1.3 and 7B1.4).
The language of application note 4 applies directly to
this case. Gondek was on state parole at the time of the
present firearms possession offense, and the district court
followed the directive that the sentence for the new offense
"should be imposed to be served consecutively to the term
imposed for the violation of . . . parole . . . ." The only
question is whether the district court erred in believing
that this result was mandated by the guidelines; if the
commentary were only a suggestion, then the district court
would be obliged to decide whether as a matter of discretion
it wished to make the term consecutive or concurrent.
There is an argument for reading application note 4 to
reserve discretion to the district court. The note, after
all, is appended to a subsection that does confer some
discretion and is explicitly labeled a "policy statement,"
although commentary policy is also binding. Williams v.
United States, 503 U.S. 193, 200-01 (1992). Some might also
attach weight to the note's use of the word "should," rather
than "shall," see United States v. Whiteley, 54 F.3d 85, 89,
91 (2d Cir. 1995), but these shadings in guideline language
do not appear to be very reliable guides.
However, the greater weight of the evidence suggests
that, departure to one side, application note 4 is mandatory.
First, the simple and straightforward language of application
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note 4 says that if the defendant committed the offense while
on parole, the sentence should be made consecutive. No
qualification is stated or suggested. In other words,
application note 4 represents the Commission's determination
as to what is a "reasonable incremental punishment" in the
narrow situation described in the note.
Second, the rationale for this special treatment is
entirely understandable. Unlike many cases governed by
subsection (c), where the two offenses arise from related
events, the parole case covered by application note 4
involves a new offense normally unrelated to the original
offense that led to the parole. Instead, the situation is
closely akin to the case of the defendant who commits a new
offense while still in prison, the very situation in which
subsection (a) instructs that the new sentence is to be
served consecutively.
Third, the guidelines elsewhere provide that where a
federal court imposes a term of imprisonment "upon the
revocation of probation or supervised release," it is to be
served consecutively to any sentence of imprisonment then
being served. U.S.S.G. 7B1.3(f). This section does not in
terms apply to Gondek's case because his revocation was by a
state court and was prior to the federal sentence; but the
policy of this provision, which is explicitly cross-
referenced in application note 4, makes irrelevant the
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sequence of events. Reading the two provisions together
reenforces our view that application note 4 is mandatory.
Fourth, one circuit has agreed that application note 4
is mandatory, United States v. Bernard, 48 F.3d 427, 432 (9th
Cir. 1995); two others reached the same result, for sentences
imposed prior to application note 4, based in part upon
U.S.S.G. 7B1.3(f), United States v. Glasener, 981 F.2d 973,
975 (8th Cir. 1992); United States v. Flowers, 13 F.3d 395,
397 (11th Cir. 1994); and apparently no other circuit has
agreed with Gondek's view. Although we are obliged to make
our own judgment, our confidence in it is reenforced by the
reaction of other circuits.
There are three loose ends that deserve separate
treatment. On a technical level, one might ask why the
Commission, in adding application note 4 in 1993, did not
simplify the matter by expanding the language of subsection
(a) to embrace parole. It is probably enough to observe that
subsection (a) is addressed primarily to cases in which a
defendant commits the new offense while "serving a term of
imprisonment"; and it would have required some reworking of
subsection (a) as a whole--not merely the insertion of a few
words--to allow it to include parole, probation and
supervised release.
The broader question is whether there is a clash, in
spirit if not in language, between the apparently generous
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grant of discretion conveyed by subsection (c) and the
specific, restrictive directive of application note 4.
Subsection (c) had to be generally phrased because it was
designed as a catch-all for all situations not embraced by
subsections (a) and (b), including ones that the Commission
might not be able to envision in advance. It does not seem
to us inconsistent for the Commission to identify one such
situation and treat it expressly in commentary, a pattern
common throughout the guidelines.
Indeed, in subsection (c) itself application note 3
reflects the same technique and suggests that it is easy to
overstate the amount of discretion conferred by subsection
(c) as a whole. As already noted, application note 3
contains a formula that governs a good many of the cases
likely to arise under subsection (c). That formula, which
calls on the court to compute the overall punishment as if
both sentences were imposed by a federal court in one case,
involves a regime that is virtually mathematical in its
application. See United States v. Whiting, 28 F.3d 1296,
1310-11 (1st Cir. 1994), cert. denied, 115 S. Ct. 378 (1994).
Something more can made of the fact that, under U.S.S.G.
4A1.1(d), Gondek is automatically subject to a two-point
increase in criminal history points for his present offense
because it was committed while on parole for another offense.
To insist that the new sentence be consecutive as well is
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therefore a form of double counting, providing a policy
argument in favor of a lenient reading. But forms of double
counting are not unusual under the guidelines and are
permissible where intended, United States v. Newman, 982 F.2d
665, 673 (1st Cir. 1992), cert. denied, 114 S. Ct. 59 (1993),
as we think is the case here.
In an entirely independent argument, Gondek says that,
if the guidelines make a consecutive sentence mandatory, then
they violate 18 U.S.C. 3584(a), a provision that
contemplates a choice by the district court between
consecutive and concurrent sentences. We have previously
held that the court's discretion under section 3584(a) is
constrained where the Commission has promulgated a governing
guideline. United States v. Flowers, 995 F.2d 315, 316-17
(1st Cir. 1993). Indeed, the statute authorizing the
guidelines specifically provides for them to include rules to
be used in determining "whether multiple sentences to terms
of imprisonment should be ordered to run concurrently or
consecutively . . . ." 28 U.S.C. 994(a)(1)(D).
Gondek's final argument is a claim that the district
court should have applied subsection (b), rather than
subsection (c), of U.S.S.G. 5G1.3. The former, as already
noted, provides for concurrent sentences subsection where (a)
does not apply and the undischarged term of imprisonment
"resulted from offense(s) that have been fully taken into
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account" in determining the offense level for the instant
offense. U.S.S.G. 5G1.3(b). Gondek argues that this
quoted language governs, primarily because the prior
convictions were what made him a felon subject to the felon
in possession statute.
The critical phase--"fully taken into account"--refers
to a case in which the prior criminal conduct is also offense
conduct in the present case; examples, indicated by the
commentary, would be state and federal prosecutions for the
same conduct or a federal prosecution that treated the state
offense as relevant conduct in determining the federal
offense level. U.S.S.G. 5G1.3, comment. (n.2). The prior
felony conviction that makes it unlawful to carry a firearm
is not "taken into account" in this manner in the federal
sentencing, and the rationale of subsection (b) does not
apply. See Flowers, 13 F.3d at 397.
Although we think that the stronger arguments and
pertinent precedent favor our interpretation of application
note 4, these arguments do not remove every possible doubt.
Where literally years of imprisonment may turn on the issue,
even a shadow of a doubt ought not be allowed to persist. A
copy of this opinion will be transmitted to the Sentencing
Commission with the suggestion that it consider clarifying
its intention.
Affirmed.
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