United States v. Richardson

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-10107

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

L.D. RICHARDSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

June 28, 1996

Before DUHÉ, BARKSDALE, DeMOSS, Circuit Judges.

PER CURIAM:

Appellant L. D. Richardson argues that the district court

abused its discretion when it applied a consecutive sentence

pursuant to § 5G1.3(c) by failing to consider certain factors

enumerated in 18 U.S.C. § 3553(a) which guide a court in its

determination of whether to impose a concurrent or consecutive

sentence. For the following reasons, we AFFIRM.
 BACKGROUND

On August 7, 1992, defendant L. D. Richardson was arrested for

being a felon in possession of a firearm. He was sentenced in

federal court to a term of 63 months in prison.

On March 23, 1994, a grand jury indicted Richardson and nine

others in a seven-count indictment charging various drug

trafficking crimes and related offenses. On October 6, 1994,

Richardson agreed to plead guilty to a superseding information

charging him with interstate travel in aid of racketeering

enterprises and aiding and abetting, in violation of 18 U.S.C. §

1952(a)(3) and (2). The government agreed to move to dismiss the

original indictment and to not oppose Richardson’s request that the

sentence for interstate travel run concurrently with his prior

felon-in-possession sentence. In his plea agreement, Richardson

indicated that he understood that it was ultimately within the

district court’s discretion to decide whether the sentences would

run concurrently or consecutively. The parties agreed that the

statutory maximum prison sentence was five years.

A presentence investigation report (“PSR”) was prepared and

given to the district judge. The PSR stated that the sentencing

guidelines range exceeded the five-year statutory maximum;

therefore, the guideline range became 60 months. The PSR further

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stated that U.S.S.G. § 5G1.3(b)1 should apply to the interstate

travel sentence, thereby mandating concurrent sentences. On

November 9, 1994, the district court rejected both the plea

agreement and Richardson’s guilty plea.

On December 22, 1994, Richardson and the government entered

into an amended plea agreement. In their amended agreement,

Richardson and the government stipulated that U.S.S.G. § 5G1.3(c)

should apply instead of U.S.S.G. § 5G1.3(b). The government again

agreed not to oppose Richardson’s request for a concurrent

1
Prior to the 1995 amendments, which became effective on
November 1, 1995, § 5G1.3(a),(b),and (c)read as follows:

§ 5G1.3. Imposition of a Sentence on a Defendant
Subject to an Undischarged Term of Imprison-
ment

(a) If the instant offense was committed while the
defendant was serving a term of imprisonment
(including work release, furlough, or escape
status) or after sentencing for, but before
commencing service of, such term of imprisonment,
the sentence for the instant offense shall be
imposed to run consecutively to the undischarged
term of imprisonment.

(b) If subsection (a) does not apply, and the
undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account
in the determination of the offense level for the
instant offense, the sentence for the instant
offense shall be imposed to run concurrently to the
undischarged term of imprisonment.

(c) (Policy Statement) In any other case, 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 (1994).

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sentence. Richardson re-stated in his amended plea agreement that

he understood that the district court had the discretion to order

consecutive or concurrent sentences.2

2
Paragraphs four and nine of Richardson’s amended plea
agreement state the following:

4. The sentence in this case will be imposed by the
Court. there is no agreement as to what that sentence
will be. Sentencing is pursuant to the Sentencing
Reform Act of 1984, making that sentencing guidelines
applicable. Defendant L.D. RICHARDSON has reviewed the
application of the guidelines with his attorney,
including those circumstances under with the court may
depart from the Guidelines, but understands no one can
predict with certainty what guideline range will be
applicable in this case until after pre-sentence
investigation has been completed and the Court has ruled
on the results of that investigations. Defendant L.D.
RICHARDSON acknowledges that he understands that the
court is required to consider the Guidelines but may
depart from, the Guidelines under some circumstances,
which circumstances are set forth in the Guidelines.
Defendant L.D. RICHARDSON will not be allowed to withdraw
his plea if the applicable guideline range is higher than
expected, or if the Court departs from the applicable
guideline range.

9. Pursuant to Rule 11(e)(1)(B) of the
Federal Rules of Criminal Procedure, the
United States agrees not to oppose Defendant
RICHARDSON’S request that the sentence to be
imposed in this case run concurrently with the
federal sentence currently being served by
Defendant RICHARDSON in Cause No 5:92-CR-0108-
C, with the understanding that this request is
not binding upon the court. Defendant L.D.
RICHARDSON understands that the decision of
what sentence will be imposed in this case, as
well as whether the sentence in this case will
run currently with or consecutively to his
current sentence is totally within the
discretion of the Court.

This plea agreement was signed by Richardson. Richardson stated on
the record, in open court, that he understood the terms of the
agreement. He does not now assert that his signature was coerced,
or that this agreement was made without his full understanding of
its conditions and implications.

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 The district court accepted both Richardson’s guilty plea and

the parties’ amended plea agreement. The next day, the probation

officer amended the PSR to apply U.S.S.G. § 5G1.3(c).

On January 20, 1995, the district court held a sentencing

hearing. At the hearing, Richardson did not object to the facts,

as stated in the PSR, or the guideline calculation recommended

therein. Richardson only asked the district court to make his

sentence run concurrently with his felon-in-possession sentence.3

The district court adopted the findings of the amended PSR and

ordered a sentence of 60 months to run consecutively to

Richardson’s felon-in-possession sentence.

Richardson timely filed a notice of appeal.

DISCUSSION

Richardson argues that the district court’s application of a

consecutive sentence was an abuse of discretion. Richardson does

not dispute that § 5G1.3(c) is the applicable sentencing

guideline4, nor does he contest that § 5G1.3(c) allows the district

3
At the time of the hearing, Richardson had served two and
one-half years of the five-year sentence which he was serving for
his first conviction. If concurrent sentencing was applied for the
second conviction, the second sentence would be added to the
undischarged term of the first sentence. Because the statutory
maximum sentence for his second conviction was five years, and
because Richardson had an undischarged term of two and one-half
years from his first sentence, at most, under concurrent
sentencing, only two and one-half years could be added to his first
sentence. On the other hand, a consecutive sentence would be
calculated to run from the time he completed the five-year sentence
for his first conviction.
4
Upon our de novo review of the record, we were initially
concerned with whether the district court correctly concluded that

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judge discretion in imposing either concurrent or consecutive

sentences. Rather, Richardson simply argues that, before imposing

the sentence, the district court failed to consider specific

subsection (c) of § 5G1.3, rather than subsection (b), applied to
the facts of this case. For the following reasons, we believe that
the district court was correct in applying subsection (c).

The key to determining whether subsection 5G1.3(b) or
subsection 5G1.3(c) applies, is whether or not the offense conduct
resulting in the incarceration for the undischarged term of
imprisonment was “fully taken into account in the determination of
the offense level for the instant offense.” U.S.S.G. § 5G1.3(b).
If the offense conduct was fully taken into account, then (b)
applies. If the offense was not fully taken into account, then (c)
applies.

An examination of the PSR reveals that although the gun was
seized by authorities while investigating drug trafficking at a
residence on August 8, 1992, neither the PSR writer, nor the
sentencing judge, determined that the gun was used or possessed in
connection with another crime (i.e., drug trafficking). In fact,
only the gun and $4,843 in cash were seized. In addition, the
defendant claimed that he had the gun for personal protection. If
the gun was present to facilitate the drug trafficking activities
that were occurring at the resident, that conduct could have been
sanctioned by applying § 2K2.1(b)(5) or § 2K2.1(c).

The PSR for the instant conviction reflects that from July 2-
5, 1992 (dates prior to the dates of the conduct referenced in the
PSR for the felon in possession conviction), the defendant engaged
in the conduct of interstate travel in aid of racketeering (i.e.,
traveling to California with cash to purchase cocaine; purchasing
cocaine and transporting it back to Texas; manufacturing the
cocaine into “crack” cocaine; distributing approximately 400 grams
of “crack.”) Nothing in the PSR reflects that “relevant conduct”
occurred outside the prescribed time span (7/2-7/5) except the
vague phrase that “...he then subsequently knowingly and
intentionally distributed the approximate 400 grams of cocaine
base....” Of significance was that in calculating the offense
level for this offense, the PSR writer and judge determined that §
2D1.1(b)(1)(increase to offense level if a firearm was present) did
not apply.

Thus, the firearm possession (resulting in the undischarged
term of incarceration conviction) was not “fully taken into account
in the determination of the offense level for the instant offense,”
as mandated by § 5G1.3(b), making § 5G1.3(c) applicable.

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factors enunciated in 18 U.S.C. § 3553(a), as required by 18 U.S.C.

§ 3584. The government argues that this court’s review should be

limited to plain error because Richardson failed to object to

either the PSR or the consecutive sentence at the sentencing

hearing. The government further argues that it was completely

within the district court’s discretion to impose a consecutive

sentence under § 5G1.3(c), and that the district court made this

decision after adequately considering the factors enumerated in §

3553(a).

District court decisions as to the application of consecutive

or concurrent sentences are reviewed for abuse of discretion.

United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.), cert.

denied, ___ U.S. ____, 111 S. Ct. 2034, 114 L.Ed.2d 119 (1991).

Section 3584 states, in relevant part:

(a) Imposition of concurrent or consecutive terms.
If multiple terms of imprisonment are imposed on a
defendant 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, the terms may run
concurrently or consecutively .... Multiple terms of
imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run
concurrently.

(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 § 3553(a).

18 U.S.C. § 3584. The factors set forth in § 3553(a) are as

follows:

(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;

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 (2) the need for the sentence imposed -

(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
punishment for the offense;

(B) to afford adequate deterrence to
criminal conduct;

(C) to protect the public from
further crimes of the defendant; and

(D) to provide the defendant with
needed educational or vocational
training, medical care, or other
correctional treatment in the most
effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentence
range established for -

(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines
that are issued by the Sentencing
Commission pursuant to § 994(a)(1) of
title 28 United States Code, and that are
in effect on the date the defendant is
sentenced...

* * * *

(5) any pertinent policy statement issued by
the Sentencing Commission pursuant to 28
U.S.C. § 994(a)(2) that is in effect on the
date the defendant is sentenced;

(6) the need to avoid unwarranted sentence
discrepancies among defendants with similar
records who have been found guilty of similar
conduct; and

(7) the need to provide restitution to any
victims of the offense.

18 U.S.C. § 3553(a).

In support of its order imposing consecutive sentences, the

district court orally stated the following:

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 I will now state on the record the
specific reasons for imposing the sentence
that I have just imposed.

As to the term of incarceration, the
statutory maximum is a 60-month term. That
becomes the guideline range. I have imposed a
term of incarceration of 60 months. I believe
a sentence of 60 months does adequately
address the sentencing objectives of
punishment and deterrence.

No fine is assessed for the reason I do
not believe the defendant has sufficient
assets at this point to pay a fine. The
three-year term of supervised release is
imposed for reason I believe the defendant
will need this amount of supervision to see
that he reassimilates himself back into
society, obtains suitable employment, and
maintains a law-abiding lifestyle.

The $50 special assessment is imposed
because the law mandates that it be.

Richardson argues that the district court’s language does not

evince a consideration of the seven factors enumerated in §

3553(a). Because § 3584 states that the district court shall

consider the factors set forth in § 3553(a), Richardson argues that

the district court abused its discretion by failing to accord such

consideration.

The government disagrees and argues that the district court’s

oral statement shows that it did give proper consideration to the

factors in § 3553(a). Furthermore, the government asserts that we

should apply a plain error standard of review because Richardson

did not object to his sentence at the sentencing hearing.

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Standard of Review

As to the applicable standard of review, it appears that

Richardson did preserve his issue for appeal. In United States v.

Hernandez, 64 F.3d 179 (5th Cir. 1995), which was issued two weeks

after the government filed its brief, we held:

Even though Hernandez failed to specifically
cite to § 5G1.3(c) in arguing that his
sentence should be imposed concurrently, he
clearly requested that the “sentence run
concurrent with the sentence that is
undischarged in Florida ... [a]nd we ask that
under § 5G1.3(c) of the Sentencing
Guidelines.” Although the specificity of
Hernandez’ request left something to be
desired, it alerted the district court to the
issue before it. This is not the case where a
party completely and utterly failed to make an
issue of the fact that his sentence should be
imposed concurrently with an undischarged
prison sentence.

Hernandez, 64 F.3d at 181. Accordingly, considering the facts of

this case, we hold that Richardson raised this issue below.

Therefore, Richardson’s error was preserved for appeal. As such,

“[a]lthough we review a district court's decision to order

consecutive or concurrent sentences for abuse of discretion, see,

e.g., United States v. Devaney, 992 F.2d 75, 77 (6th Cir.), cert.

denied, ___ U.S. ____, 114 S. Ct. 237, 126 L.Ed.2d 191 (1993), we

review de novo whether the district court properly applied the

relevant sentencing guideline to the defendant.” United States v.

Cutler, 36 F.3d 406, 407 (4th Cir. 1994).

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Section 3553(a) Factors

As to the government’s assertion that the district court

properly considered the seven factors enunciated in § 3553 (and,

thus, did not abuse its discretion in imposing a consecutive

sentence), the government argues that the district court’s oral

statement evinces a proper consideration of the statutory factors.

The government argues that, “while the court ... did not

specifically mention these factors in the context of reasons for

the sentences being imposed consecutively, the obvious inference

was that the court meant those factors to apply as reasons for the

sentences being imposed consecutively.” We agree.

Upon review of the record, we note that the aforementioned

oral statement by the district court constitutes the only evidence

of the district court’s consideration of this issue. Thus, we must

determine whether this sole statement by the district court evinces

due consideration to the § 3553(a) factors. We acknowledge that

the district court’s statement does not specifically mention §

3553(a), or the specific factors stated, therein; however, the

district court does state that it considered “the sentencing

objectives of punishment and deterrence.” Such a statement implies

a general consideration by the district court of several of the

factors embodied in 18 U.S.C. § 3553(a). While the district

court’s oral statement is not a model of detail and specificity, we

do not find it to be so lacking as to evince a disregard of the §

3553(a) factors, or to affect the lawfulness of this sentence.

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Accordingly, we hold that the district court did not err in its

discretionary exercise of imposing consecutive sentences.

CONCLUSION

For the foregoing reasons, the order of the district court is

AFFIRMED.

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