United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1421
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Robert William Rutherford, *
*
Appellant. *
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Submitted: November 19, 2009
Filed: April 2, 2010
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Robert W. Rutherford pleaded guilty to two counts of using interstate
communications to transmit a threat in violation of 18 U.S.C. § 875(c) and was
sentenced to 74 months' imprisonment on consecutive 37-month sentences. On appeal,
Rutherford argues that the district court1 abused its discretion by imposing
consecutive, rather than concurrent, sentences for the two counts. We disagree and
affirm the judgment.
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
I. Background
In 2006, Dean Kessel sued Rutherford for damages caused by an assault that
Rutherford committed against Kessel. Richard Baer, a Bismarck, North Dakota
attorney, represented Kessel. Rutherford was in custody at that time. While
incarcerated, Rutherford met Kris Krumweide, who was subsequently released from
jail. Thereafter, Rutherford sent Krumweide letters from jail requesting Krumweide's
help in stopping Kessel and Baer from executing on Kessel's judgment against
Rutherford. Rutherford offered Krumweide money and guns if he would kill Baer and
Kessel. Through a third party, Rutherford offered Krumweide instructions on where
to find guns and shotgun shells in a house in South Dakota. Rutherford also sent
Krumweide maps showing where Baer and Kessel lived in Bismarck and where Baer's
law office was located. Rutherford also sent Krumweide pictures of Kessel's house
and the name of Baer's secretary. Rutherford promised to pay Krumweide $15,000
once he killed Baer and Kessel.
Rutherford sent Krumweide some money, but Krumweide instead contacted
Baer and gave him the letters and maps, which Baer then turned over to authorities.
Rutherford was indicted on January 9, 2008, on three counts of conspiracy to use
interstate commerce facilities in the commission of murder for hire, in violation of 18
U.S.C. § 1958, and two counts of using interstate communications to transmit a threat,
in violation of 18 U.S.C. § 875(c). On November 24, 2008, Rutherford pleaded guilty
to the two counts of using interstate communications to transmit a threat in exchange
for the government dropping the § 1958 charges.
At Rutherford's change-of-plea hearing, the parties agreed that the Sentencing
Guidelines range for each count would likely be "30-37 months or certainly no greater
than 37-46." The government recommended "seven years incarceration, which would
require . . . consecutive terms." Through counsel, Rutherford responded that "if the
court imposes a sentence which the government recommends, we likely would take
the position that that is above the Guideline range and have that right to proceed [with
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appeal]." The district court informed Rutherford that the maximum penalty for each
of the two charges was up to five years' imprisonment and "[s]o you're looking at the
possibility in this case of a maximum of ten years of imprisonment . . . ." The court
also informed Rutherford that the sentences could be either consecutive or concurrent
sentences.
The district court sentenced Rutherford to 74 months' imprisonment. Both Baer
and Kessel testified at the sentencing hearing. Baer testified that he continued to fear
Rutherford, even though Rutherford was in custody. The letters and maps Rutherford
sent to Baer were admitted at the sentencing hearing. The government offered photos
of Kessel's assault injuries taken while he was in the emergency room.
The parties agreed that the Sentencing Guidelines range for each offense was
37 to 46 months' imprisonment, which the district court accepted. The government
requested a 74-month term of imprisonment (two consecutive 37-month sentences),
while Rutherford argued for concurrent sentences within the 37-to-46 month range.
The district court stated that "[i]n imposing a consecutive sentence, I've considered not
only Chapter 3, but particularly Section 5G1.2 of the Sentencing Guidelines that
address sentencing in multiple counts." The court also discussed its consideration of
the 18 U.S.C. § 3553(a) factors.
II. Discussion
Rutherford's lone argument on appeal is that the district court misapplied
§ 5G1.2 of the Sentencing Guidelines and as a result abused its discretion in ordering
consecutive, rather than concurrent, sentences. Rutherford argues that the district court
could not have sentenced him to more than the statutory maximum sentence of 60
months. Rutherford bases his argument on 18 U.S.C. § 875(c), U.S.S.G. § 5G1.2(c),
as well as United States v. Rogers, 423 F.3d 823 (8th Cir. 2005), and United States v.
Ervasti, 201 F.3d 1029 (8th Cir. 2000). These authorities, Rutherford contends,
require that his sentences run concurrently, not consecutively.
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In response, the government argues that the district court properly considered
the Guidelines, as well as other sentencing factors in § 3553(a) when it sentenced
Rutherford to a 74-month consecutive term of imprisonment. The government argues
that § 5G1.2 is not controlling, but advisory and that the district court has discretion
to impose either consecutive or concurrent sentences under 18 U.S.C. § 3584.
Our review of criminal sentences is limited. Gall v. United States, 552 U.S. 38,
46 (2007). We review interpretation of the Sentencing Guidelines de novo and a
district court's application of the Guidelines to the facts for clear error. United States
v. Rollins, 552 F.3d 739, 742 (8th Cir. 2009). We review all sentences, including
sentences that vary from the Guidelines, for an abuse of discretion. Gall, 552 U.S. at
51.
Generally, the district court retains broad statutory authority to impose a
sentence to run consecutively with or concurrently to an undischarged term of
imprisonment. United States v. Meyers, 401 F.3d 959, 961–62 (8th Cir. 2005); 18
U.S.C. § 3584(a). Therefore, we review the district court's decision to impose
consecutive sentences for reasonableness. United States v. Shafer, 438 F.3d 1225,
1227 (8th Cir. 2006).
Rutherford argues that § 5G1.2 governs the district court's consecutive
sentencing discretion. Section 5G1.2 states, in relevant part:
(c) If the sentence imposed on the count carrying the highest statutory
maximum is adequate to achieve the total punishment, then the sentences
on all counts shall run concurrently, except to the extent otherwise
required by law.
(d) If the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence equal to the total
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punishment. In all other respects, sentences on all counts shall run
concurrently, except to the extent otherwise required by law.
In Ervasti, we defined the phrase "total punishment" to mean "the precise
sentence determined by the sentencing judge from within the appropriate [G]uidelines
range." 201 F.3d at 1045–46. In United States v. Diaz, we confirmed that "§ 5G1.2(d)
mandates consecutive sentences in those cases in which the total punishment exceeds
the statutory maximum for any one count . . . ." 296 F.3d 680, 684 (8th Cir.) (en
banc), cert. denied, 537 U.S. 940 (2002). In Rogers, we further explained the
Guidelines process for determining the correct sentence with multiple counts of
conviction:
When the defendant has been convicted of multiple offenses . . . [a]
sentence equal to the "total punishment" is . . . imposed on each count (or
the statutory maximum sentence, if less), and the individual sentences
are imposed to run concurrently, unless the count carrying the highest
statutory maximum is less than the total punishment, in which case
consecutive sentencing is employed to produce a combined sentence
equal to the total punishment . . . . Once the total punishment is
determined, Part 5G directs the court to sentence multiple counts of
conviction as an interdependent package, and to use consecutive as well
as concurrent sentencing to construct a combined sentence equal to the
total punishment.
423 F.3d at 828–29 (internal quotations and citations omitted).
Rutherford's reading of this Guidelines section is correct—the "total
punishment" imposed by the district court (37 months) on each count should generally
be less than the statutory maximum for the count with the highest statutory maximum
(60 months). Notwithstanding, § 5G1.2 is not controlling in this case. See United
States v. Booker, 543 U.S. 220, 245 (2005) (requiring a sentencing court to consider
Guidelines ranges, but permitting the court to tailor the sentence in light of other
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statutory concerns as well). A sentencing court should consider the Guidelines
calculation as a first step to finding a reasonable sentence. United States v. Haack, 403
F.3d 997, 1002–03 (8th Cir. 2005). But the Guidelines cannot mandate a sentence
within the calculated range or concurrent sentencing. In this case, 18 U.S.C. § 3584
and 18 U.S.C. § 3553 are relevant "statutory concerns" for the district court to
consider in reaching its ultimate sentence.
18 U.S.C. § 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 . . . the terms
may run concurrently or consecutively . . . . Multiple terms of
imprisonment imposed at the same time run concurrently unless the
court orders . . . that the terms are to run consecutively.
(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).
(Emphasis added.)
The applicability of § 5G1.2 to cases involving multiple counts is narrow.
Section 5G1.2(d) directs a district court to impose consecutive sentences on multiple
counts of conviction when no single count of conviction carries a statutory maximum
sentence that would permit imposition of the "total punishment" as calculated under
the Guidelines. This situation does not describe Rutherford's case. Notably § 5G1.2
does not alternatively limit the district court's discretion to sentence consecutively
when the total punishment is less than the statutory maximum. In other words,
§ 5G1.2 does not describe the only time a court may impose consecutive sentences.
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The now-advisory Guidelines are consistent with § 3584; the Guidelines advise
the district court to exercise discretion (with some exceptions) in imposing a sentence
"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).
In fashioning sentences, whether concurrent or consecutive, a district court must
still continue to determine the appropriate Guidelines range and then consider the §
3553(a) factors. United States v. Gramling, 417 F.3d 891, 896 (8th Cir. 2005). Here,
the district court considered the Guidelines range, which the parties agreed was
properly calculated to be between 37 to 46 months. Next, the district court considered
the factors set forth in § 3553(a), as required by § 3584(b) and our precedents, in order
to determine whether to impose a consecutive or concurrent sentence. United States
v. McDonald, 521 F.3d 975, 980 (8th Cir. 2008). After specifically commenting on
the egregiousness of the letters that Rutherford mailed to Krumweide—which
included Rutherford's intent to kill—the district court explained how it reached the
decision to sentence consecutively:
I've carefully reviewed and considered not only the sentencing
guidelines, but the presentence report, arguments of counsel, elocution
of Mr. Rutherford in this case. I'm very familiar with each and every one
of the factors that I'm required to consider under 18 U.S.C. 3553(a) in
imposing a sentence, and I have considered all of those factors in this
case.
"'[W]e do not require a district court to categorically rehearse each of the
section 3553(a) factors on the record when it imposes a sentence as long as it is clear
that they were considered.'" United States v. Austad, 519 F.3d 431, 436 (8th Cir. 2008)
(quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006)). In this case, the
district court could have more clearly articulated the correct authority for the
imposition of consecutive sentences. In fact, the court completely omitted a discussion
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of § 3584 in making its sentencing decision. Yet, the § 3553(a) factors were properly
considered, as required by § 3584, and, given the evidence, the district court's
imposition of consecutive sentences was not an abuse of discretion.
Finally, Rutherford's sentence is reasonable, even if the consecutive sentence
is characterized as an upward variance from the Guidelines. In Austad, we found that
an 84-month sentence for one count of mailing threatening communications was
reasonable where the defendant's Sentencing Guidelines range was 37 to 46 months.
519 F.3d at 436. The defendant in Austad threatened to kill a federal judge. Id. at 433.
We found that the district court properly considered the seriousness of the offense,
which warranted an upward variance. Id. at 435. In the present case, the district court
similarly considered the seriousness of the offense before imposing consecutive
sentences, as indicated in the following colloquy:
And I probably would have been inclined to impose a concurrent
sentence until I read the letters last week, and, quite frankly, they were
disturbing letters to me, and there were 12, 13, 14 of them. And I know
the word is never mentioned in those letters, that you intend or want Mr.
Krumweide to kill Mr. Baer or Mr. Kessel, but that's how I would have
interpreted those letters. They weren't letters just to make some scare
tactics directed at both of those gentlemen. They were pretty clear, I
think, in the tenor of the letters what the intent was. . . . I received and
[have] been made aware of letters like that directed to myself, there's
only one way that I would interpret them, and those would be death
threats. And I think they're all rather serious letters, and because of that,
I think that a consecutive sentence is appropriate. . . .
Applying Gall, which instructs that the sentencing judge "is in a superior
position to find facts and judge their import under § 3553(a) in the individual case,"
552 U.S. at 51 (citation omitted), we cannot say the district court sentenced
Rutherford to an unreasonable term. Countering the argument that Rutherford's
sentence was considered "unusually harsh," we note that the district court not only
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alerted Rutherford to the possibility of the consecutive sentence at his change-of-plea
hearing but also explained the sentence with "sufficient justifications." Id. at 46. In
this case, the district court reasonably concluded that 74 months' imprisonment is an
appropriate punishment after discussing the relevant § 3553(a) factors.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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