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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2003 Decided May 2, 2003
No. 02-3022
UNITED STATES OF AMERICA,
APPELLEE
v.
KEHINDE A. HALL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00237-01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the brief was A.J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Howard, Jr., U.S. Attorney, and John R. Fisher, Elizabeth
Trosman, and Alyse Graham, Assistant U.S. Attorneys.
Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Defendant Kehinde Hall appeals a
district court judgment ordering him to serve an 84-month
sentence for committing a federal crime, to be commenced
only after he completes a term of imprisonment previously
incurred for committing a different offense under District of
Columbia law. Hall does not object to the length of the
sentence, but only to its timing. He asserts that the district
court applied the wrong provision of the United States Sen-
tencing Guidelines (U.S.S.G.), which misled the court into
believing that it had to sentence Hall consecutively when it
actually had discretion to sentence him concurrently. We
conclude that, while the court may have applied the wrong
guideline provision, the defendant suffered no prejudice be-
cause the correct provision does in fact mandate a consecutive
sentence.
I
Hall’s prior criminal history is relevant to our disposition,
and we therefore briefly recount it. In January 1997, Hall
was convicted in District of Columbia Superior Court of
assault with intent to commit aggravated assault, for shooting
a victim in the face, and of possession of a firearm during a
crime of violence. He was sentenced under the District’s
Youth Rehabilitation Act, D.C. CODE §§ 24-901 et seq., to
concurrent periods of incarceration of not more than fifteen
years on the assault charge and not more than five years on
the firearms charge. United States v. Hall, No. F5935-96
(D.C. Super. Ct. Jan. 10, 1997) (Judgment & Commitment
Order). The court suspended all but twenty months of the
sentence, and ordered Hall to serve eighteen months of
supervised probation following his release. Id. On January
7, 1999, while still on probation for the District of Columbia
3
offenses, Hall was arrested in Maryland for robbery with a
deadly weapon. Hall was convicted of that robbery, and on
June 16, 1999, a Maryland court sentenced him to two to five
years of incarceration, with all but eighteen months suspend-
ed, to be followed by five years of probation.
On August 20, 1999, as a result of his Maryland conviction,
the District of Columbia Superior Court revoked Hall’s Youth
Act probation and sentenced him, as an adult, to concurrent
terms of twenty months to five years on the assault charge
and a mandatory minimum of five years to a maximum of
fifteen years on the weapons charge. United States v. Hall,
No. F5935-96 (D.C. Super. Ct. Aug. 20, 1999) (Judgment &
Commitment Order). Hall’s new District of Columbia sen-
tence was set to commence upon the completion of his
Maryland sentence. Id. But when Hall’s term of incarcera-
tion in Maryland ended on January 8, 2001, the Maryland jail
mistakenly and inexplicably released him from custody in-
stead of returning him to the District to begin serving his
August 1999 sentence.
On May 16, 2001, while still on probation for his Maryland
conviction, Hall was arrested again, this time on the charge
that led to the present appeal: the unlawful possession of a
firearm and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). After a jury convicted Hall in Novem-
ber 2001, the United States Probation Office prepared a
Presentence Report (PSR) that calculated a sentencing guide-
line range of 77 to 96 months. The PSR also stated that
‘‘[p]ursuant to U.S.S.G. § 5G1.3(c), Application Note 6, the
sentence for the instant offense should be imposed to run
consecutively to the term of imprisonment’’ that Hall had at
that point begun to serve for his District of Columbia convic-
tions. PSR ¶ 54. Both the prosecutor and defense counsel
received the PSR and attested that there were ‘‘no materi-
al/factual inaccuracies therein.’’
The district court sentenced Hall on February 7, 2002.
After explaining that Hall’s ‘‘prior record [gave] the Court
great concern,’’ and that the fact that Hall was ‘‘found with a
firearm’’ while on the street was ‘‘a very serious matter,’’ the
4
court announced a term of imprisonment of 84 months. Sen-
tencing Hr’g Tr. at 14–15 (Feb. 7, 2002). The court then
added: ‘‘And this [sentence] will run consecutive to any other
sentence you are now serving.’’ Id. at 15. In the ‘‘Statement
of Reasons’’ appended to the judgment that issued the follow-
ing day, the court checked the box labeled: ‘‘The court adopts
the factual findings and guideline application in the presen-
tence report.’’ United States v. Hall, No. 01cr00237–01, at 6
(D.D.C. Feb. 8, 2002) (Judgment).
II
Hall contends that the district court erred in running his
federal sentence consecutively to the sentence imposed by the
District of Columbia. Because Hall failed to raise that objec-
tion below, we review it under the ‘‘plain error’’ standard of
Federal Rule of Criminal Procedure 52(b). Although that
standard has a number of elements, most important for this
case is the requirement that Hall show not only that the
district court erred, but also that he suffered prejudice as a
consequence of that error. United States v. Olano, 507 U.S.
725, 734 (1993); United States v. Smith, 267 F.3d 1154, 1160–
61 (D.C. Cir. 2001); United States v. Saro, 24 F.3d 283, 287–
89 (D.C. Cir. 1994).
In concluding that the court should impose Hall’s federal
sentence to run consecutively to his District of Columbia
sentence, the PSR relied on Application Note 6 to Sentencing
Guideline § 5G1.3. That note provides:
Revocations. 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 super-
vised release.
U.S.S.G. Manual § 5G1.3, cmt. n.6 (emphasis added). On
appeal, Hall draws our attention to the words italicized in the
5
above quotation and contends that they render the PSR’s
reliance on Application Note 6 erroneous. Hall points out
that he was not on probation for his District of Columbia
crimes at the time he committed the federal firearms offense
(probation having been revoked due to the Maryland offense),
and that although he was on probation for the Maryland
offense at the time, the state had not yet revoked that
probation by the date of his federal sentencing. He con-
cludes, correctly, that the express terms of Application Note 6
therefore render that note inapplicable to his situation. The
government concedes that Hall is right.
At this point, however, Hall and the government part
company. Hall argues that, because the district court
adopted the PSR’s application of the Sentencing Guidelines,
because the PSR referenced Note 6 as applicable to his case,
and because Note 6 directs that where it applies ‘‘the sen-
tence for the instant offense should be imposed to run consec-
utively,’’ the district court must have erroneously believed
that it was compelled to run his federal sentence consecutive-
ly to his District of Columbia term. The number of ‘‘becaus-
es’’ in the preceding sentence suggests that the logical jour-
ney Hall asks us to take is not quite an uninterrupted one.
But the journey’s biggest step is its last: the conclusion that
the district court would have regarded itself as compelled to
impose a consecutive sentence by an application note that
says no more than that such a sentence ‘‘should’’ be imposed.1
Indeed, as the government points out, the application notes to
§ 5G1.3 appear to reserve the word ‘‘shall’’ for those circum-
stances in which consecutive sentences are mandatory, using
‘‘should’’ or ‘‘may’’ for situations in which the district court
retains a measure of discretion.2 Nor is there any indication
in the district court’s own remarks at Hall’s 2002 sentencing
to suggest that it regarded the Sentencing Guidelines as
1 Paralleling the note’s language, the PSR merely advised the
court that ‘‘the sentence for the instant offense should be imposed
to run consecutively to the term of imprisonment the defendant is
currently serving.’’ PSR ¶ 54 (emphasis added).
2As discussed below, subsection (a) of § 5G1.3 states that a
consecutive sentence ‘‘shall be imposed’’ when the instant offense
6
compelling a sentence that the court would not have imposed
on its own. To the contrary, those remarks suggest that the
court regarded the sentence it handed down as fully justified
by the nature of Hall’s criminal record. See, e.g., Sentencing
Hr’g Tr. at 15 (Feb. 7, 2002) (‘‘[Y]our record causes me great
concern regarding the safety of the communityTTTT [T]he
prior offenses are extremely serious and having a firearm, in
my view, is very seriousTTTT’’).
Nonetheless, we decline to accept the government’s invita-
tion to rest our decision on the ground that the erroneous
application of Note 6 did not influence the district court’s
sentencing disposition. First, while we believe that the most
straightforward reading of Application Note 6 is that it
represents a strong suggestion rather than a mandatory
injunction to impose a consecutive sentence, we must ac-
knowledge that other courts have read the note as requiring a
consecutive sentence,3 and that it is possible that the district
court here did so as well. Moreover, even if the district court
read Note 6 as merely suggestive, it is also possible that the
was committed ‘‘while the defendant was serving a term of impris-
onment TTT or after sentencing for, but before commencing service
of,’’ a term of imprisonment. Consistent with the language of the
subsection, the application note associated with § 5G1.3(a) provides
that ‘‘the court shall impose a consecutive sentence’’ in those
circumstances. U.S.S.G. MANUAL § 5G1.3, cmt. n.1 (emphasis add-
ed). Subsection (c), by contrast, specifies situations in which ‘‘the
sentence for the instant offense may be imposed to run concurrent-
ly,’’ id. § 5G1.3(c) (emphasis added), and the notes associated with
that subsection describe situations in which the court ‘‘may,’’ see id.
§ 5G1.3, cmt. n.3–5, or ‘‘should,’’ see id. § 5G1.3, cmt. n.6, impose a
consecutive sentence.
3 There is a circuit split on the issue. Some circuits read the note
as mandatory. See, e.g., United States v. Goldman, 228 F.3d 942,
944 (8th Cir. 2000); United States v. Alexander, 100 F.3d 24, 27
(5th Cir. 1996); United States v. Gondek, 65 F.3d 1, 2–3 (1st Cir.
1995); United States v. Bernard, 48 F.3d 427, 431 (9th Cir. 1995).
Others read it as discretionary. See, e.g., United States v. Swan,
275 F.3d 272, 279–81 (3d Cir. 2002); United States v. Tisdale, 248
7
suggestion influenced the court to impose a sentence it would
not have chosen in the note’s absence.4
But even if the district court were misled to believe that
Note 6 applied and required consecutive sentencing, Hall
suffered no prejudice — and hence the court did not plainly
err — because the guideline provision that correctly applies
to his case clearly does mandate a consecutive sentence.
Application Note 6 is just one of six notes explicating Guide-
line § 5G1.3, entitled ‘‘Imposition of a Sentence on a Defen-
dant Subject to an Undischarged Term of Imprisonment.’’
That guideline, which is set out in full in the margin,5 has
three subsections: subsection (a) describes the cases in which
the district court must impose a consecutive sentence; sub-
F.3d 964, 977–80 (10th Cir. 2001); United States v. Maria, 186 F.3d
65, 70–71 (2d Cir. 1999).
4 In light of the considerations discussed in the following para-
graph, we need not decide whether these possibilities would, in
other circumstances, create sufficient doubt to justify a remand for
resentencing. Cf. United States v. Morales-Castillo, 314 F.3d 561,
564 (11th Cir. 2002) (rejecting the defendant’s contention that the
district court failed to recognize that it had discretion under Appli-
cation Note 6 ‘‘because there is no evidence in the record that the
district court believed it was required to impose a consecutive
sentence,’’ and instead concluding that the court ‘‘chose to impose’’ a
consecutive sentence because of the defendant’s criminal history);
United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995) (holding
that when ‘‘[w]e do not know why the district court refused to
depart, TTT we assume that the district court knew and applied the
law correctly,’’ rather than that it erroneously thought itself without
discretion (internal quotations and alterations omitted)).
5 Imposition of a Sentence on a Defendant Subject to an Undis-
charged Term of Imprisonment
(a) If the instant offense was committed while the defendant
was serving a term of imprisonment (including work re-
lease, furlough, or escape status) or after sentencing for,
but before commencing service of, such term of imprison-
ment, the sentence for the instant offense shall be imposed
to run consecutively to the undischarged term of imprison-
ment.
8
section (b) describes those in which the sentence must be
concurrent; and subsection (c) gives the court discretion, in
‘‘any other case,’’ to sentence either consecutively or concur-
rently.
Although the author of the PSR erroneously thought that
Application Note 6 — which is associated with subsection
(c) — applied to Hall’s situation, it is clear to us that the
subsection that actually governs is subsection (a), with its
corresponding Application Note 1.6 Guideline § 5G1.3(a)
states:
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.
U.S.S.G. MANUAL § 5G1.3(a). The subsection thus requires7
the court to impose a sentence consecutive to a defendant’s
(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 may be imposed to run concurrently, par-
tially concurrently, or consecutively to the prior undis-
charged term of imprisonment to achieve a reasonable
punishment for the instant offense.
U.S.S.G. MANUAL § 5G1.3.
6 See United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994)
(noting that the court of appeals reviews ‘‘purely legal questions’’
regarding the guidelines ‘‘de novo,’’ and accords only ‘‘due defer-
ence’’ to the district court’s ‘‘application of the guidelines to facts’’)
(citing 18 U.S.C. § 3742(e)); see also United States v. Goodwin, 317
F.3d 293, 297 (D.C. Cir. 2003).
7Hall does not dispute that, where applicable, § 5G1.3(a) requires
the district court to impose a consecutive sentence. See United
9
undischarged term of imprisonment when the instant offense
was committed either: (1) while the defendant was serving a
term of imprisonment (including work release, furlough, or
escape status), or (2) after sentencing for, but before com-
mencing service of, such term of imprisonment.
The second listed circumstance is the one that applies here.
On August 20, 1999, the District of Columbia Superior Court
revoked Hall’s Youth Act probation and sentenced him, as an
adult, to 20 months to five years on the assault charge and to
a mandatory minimum of five years to a maximum of fifteen
years on the weapons charge. The mandatory minimum five-
year sentence was a new sentence, not previously imposed.
See Mulky v. United States, 451 A.2d 855, 858 (D.C. 1982)
(holding that a ‘‘trial court [is] not required to reimpose the
original sentence but ha[s] discretion to impose a new sen-
tence within the statutory limits governing the offense for
which she was convicted’’) (interpreting then-D.C. CODE
§ 24-104).8 Moreover, both parties agree that Hall’s District
of Columbia sentence did not commence on August 20, 1999:
the District of Columbia court had expressly provided that its
sentence was to run consecutively ‘‘to any other sentence
imposed,’’ and Hall was incarcerated in Maryland on that
States v. Higgins, 128 F.3d 138, 141–43 (3d Cir. 1997); United
States v. Flowers, 995 F.2d 315, 316–17 (1st Cir. 1993).
8 The August 1999 sentence is also properly characterized as a
new sentence, as compared to that initially imposed in January
1997, because the 1997 sentence was imposed under the Youth Act,
while Hall was sentenced in 1999 as an adult. Sentencing Hr’g Tr.
at 10 (Feb. 7, 2002); see Smith v. United States, 597 A.2d 377, 378–
80 & n.2 (D.C. 1991) (noting that an adult sentence is different from
a Youth Act sentence, and upholding revocation of Youth Act
probation and imposition of an adult sentence). Hall contends that
the new sentence may be invalid under District of Columbia law
(because it was more severe than the original sentence) or under
the Constitution’s Double Jeopardy Clause. This appeal, however,
is not the appropriate forum in which to mount such a collateral
attack on the validity of Hall’s District of Columbia sentence. See
U.S.S.G. MANUAL § 4A1.2, cmt. n.6; United States v. Clipper, 313
F.3d 605, 607–09 (D.C. Cir. 2002).
10
date. United States v. Hall, No. F5935-96 (D.C. Super. Ct.
Aug. 20, 1999) (Judgment & Commitment Order). Nor had
the District of Columbia sentence commenced by May 16,
2001, the date on which Hall committed the federal offense
for which he was convicted in the instant case, because
Maryland had mistakenly released him from custody at the
end of his Maryland sentence rather than returning him to
the District to begin serving his August 1999 District of
Columbia sentence.
As this recitation of the facts makes clear, Hall’s ‘‘instant
offense was committed TTT after sentencing for, but before
commencing service of,’’ the term of imprisonment imposed
by the District of Columbia on August 20, 1999. U.S.S.G.
MANUAL § 5G1.3(a). In such circumstances, § 5G1.3(a) di-
rects that ‘‘the sentence for the instant offense shall be
imposed to run consecutively to the undischarged term of
imprisonment.’’ Id. The relevant application note, Applica-
tion Note 1 to § 5G1.3(a), is in accord.9 Hence, while the
district court may have erred in thinking that Note 6 was the
relevant application note, a consecutive sentence was nonethe-
less required, and the consecutive sentence that the court
imposed therefore contains no error. By the same token,
because Hall’s sentence does not differ from the one the court
was required to impose by a correct application of the guide-
lines, the defendant has suffered no prejudice. See Saro, 24
F.3d at 288 (holding that to establish prejudice, ‘‘the defen-
dant must show a reasonable likelihood that the sentencing
court’s obvious errors affected his sentence’’). We therefore
reject his request to remand the case for resentencing. See
Olano, 507 U.S. at 734.10
9 See U.S.S.G. MANUAL § 5G1.3, cmt. n.1 (stating that ‘‘[u]nder
subsection (a), the court shall impose a consecutive sentence when
the instant offense was committed TTT after sentencing for, but
before commencing service of’’ an ‘‘undischarged term of imprison-
ment’’).
10 For the same reason, we reject Hall’s contention that he
suffered from ineffective assistance of counsel. To prevail on such
a claim, a defendant must show: (1) ‘‘that counsel’s performance
was deficient,’’ i.e., that his attorney ‘‘made errors so serious that
11
III
For the foregoing reasons, the judgment of the district
court is
Affirmed.
counsel was not functioning as the ‘counsel’ guaranteed the defen-
dant by the Sixth Amendment’’; and (2) ‘‘that the deficient perfor-
mance prejudiced the defense,’’ i.e., ‘‘that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’’ Strickland v. Wash-
ington, 466 U.S. 668, 687, 694 (1984); see Saro, 24 F.3d at 288. We
do not consider whether the acquiescence of Hall’s attorney in the
PSR’s misapplication of Note 6 satisfies the first prong of the
Strickland test, as it plainly fails the second.