United States v. Parkinson

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1229

UNITED STATES,

Appellee,

v.

KEITH JAMES PARKINSON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Cyr and Stahl, Circuit Judges,

and Zobel,* District Judge.

Christopher W. Dilworth, by Appointment of the Court, for

appellant.
Michael M. DuBose, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, Paula D. Silsby,

Assistant United States Attorney, and Margaret D. McGaughey,

Assistant United States Attorney, were on brief for appellee.

December 29, 1994

* Of the District of Massachusetts, sitting by designation.

ZOBEL, District Judge. Keith Parkinson once again
ZOBEL, District Judge

appeals his sentence. After a one-day jury trial, defendant was

convicted of robbing a bank in Portland, Maine, in violation of

18 U.S.C. 2113(a) (1991). He subsequently was sentenced to a

term of imprisonment of 240 months, to run consecutively to the

remainder of a ten-to-twenty year sentence imposed by a

Massachusetts state court for the robbery of a bank in Boston,

Massachusetts. On appeal, we affirmed the conviction, but

vacated the sentence because the district court had not followed

the directive of 5G1.3(c) of the United States Sentencing

Guidelines ("U.S.S.G." or "Sentencing Guidelines") when it

imposed an entirely consecutive federal sentence. United States

v. Parkinson, No. 91-2233, 1993 WL 89801, at *6 (1st Cir. Mar.

30, 1993). After remand, the district court again sentenced

defendant to a period of incarceration of 240 months, now to be

served concurrently with the remainder of his state sentence.1

At the time of the resentencing defendant had served either

forty-six or forty-eight months of that Massachusetts sentence.2

He now argues that the sentence, by not taking account of the

state time already served, represents an upward departure from

the applicable guideline range of 210 to 262 months, which on the

1 At resentencing, the court, without dissent from either party,
applied the 1993 Sentencing Guidelines. We do likewise.

2 Defendant had served forty-eight months from the date of his
arrest on the state charge and forty-six months from the date of
sentencing on that offense.

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facts of this case, he says, was improper.3

The parties disagree as to the issues on appeal.

Defendant, ignoring the first part of the district judge's

exegesis, presumes that the judge departed upwardly, and suggests

that the issue before us is whether such departure was justified.

The government presents a more complete, and in our view correct,

statement of the issues; namely, is time served in state custody

before the imposition of the federal sentence included in the

calculus under 5G1.3(c) when deciding whether the sentence is

outside the applicable guideline range; and, only if so, was an

upward departure in the instant case appropriate. Because we

answer the former inquiry in the negative, we need not reach the

latter. Nonetheless, a review of the record shows that an upward

departure would be appropriate.

Standard of Review

We consider de novo the legal meaning and scope of

5G1.3(c) (Imposition of a Sentence on a Defendant Subject to an

Undischarged Term of Imprisonment). See United States v.

Thompson, 32 F.3d 1, 4 (1st Cir. 1994). The district court's

fact-finding, however, we review for clear error, with due

deference given its application of 5G1.3(c) to the facts of the

case. SeeUnited Statesv. St. Cyr,977 F.2d698, 701(1st Cir. 1992).

3 This range represents, coincidentally, both what the total
punishment would have been, in accordance with 5G1.2, had
defendant been sentenced on the federal and state bank robbery
convictions at the same time in federal court as well as the
punishment for the single federal conviction. Both calculations
are based upon a criminal history category of VI and total
offense level of 32. Defendant does not dispute either.

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Was there a departure?

A perusal of 5G1.3 leads us to conclude that in order

to determine whether a sentence imposed pursuant to 5G1.3(c)

represents a departure from the guidelines, we do not consider

time served in state custody. To hold otherwise would equate

"sentence" with "total punishment" and leave meaningless much of

the language of 5G1.3, which we are bound to follow. Like the

policy statements, the commentary to the Sentencing Guidelines is

binding when it "interprets or explains a guideline . . . unless

it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that

guideline." Stinson v. United States, 113 S. Ct. 1913, 1915,

1918 (1993). Similarly, even "'[p]ortions of [the Guidelines

Manual] not labeled as guidelines or commentary . . . are to be

construed as commentary and thus have the force of policy

statements.'" Id. at 1918 (quoting U.S.S.G. 1B1.7, comment.).

Section 5G1.3 is designed to achieve an incremental

punishment for a defendant who, at the time of sentencing for the

instant offense, is subject to an undischarged term of

imprisonment. U.S.S.G. 5G1.3. Although there is discretion as

to how to accomplish the incremental punishment, in fashioning an

appropriate sentence, the district court is constrained by the

Sentencing Guidelines. U.S.S.G. 5G1.3, comment. n.3; 28

U.S.C.A. 994(a) (West 1993). The court should use the

following method to reach the sentence: (1) compute the total

offense level for the instant offense and defendant's criminal

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history category; (2) determine the resulting guideline range for

that offense; and (3) choose the point within the guideline range

that effects a reasonable incremental punishment and decide

whether that sentence will run concurrently or consecutively.

See United States v. Jackson, 30 F.3d 199, 201 (1st Cir.

1994)(citing 18 U.S.C. 3553 (a),(b) (1988)); U.S.S.G. 5G1.3,

comment. n.3.

The commentary to 5G1.3 instructs that, to compute

such an incremental punishment, a sentencing judge should

consider the guideline grouping rules of 5G1.2 (Sentencing on

Multiple Counts of Conviction) which defines the total punishment

that the defendant would have received had he been simultaneously

sentenced in federal court for both offenses. U.S.S.G. 5G1.3;

Parkinson, 1993 WL 89801, at *4. Under 5G1.2, an offense level

and criminal history category for the combined offenses establish

a guideline range, from which the total punishment is derived.

U.S.S.G. 5G1.2, comment. Often, by discounting the total

punishment for time already served on the undischarged sentence,

the sentencing judge can attain an incremental punishment.

U.S.S.G. 5G1.3.

Confusion in this case arises from two unusual

circumstances. First, the statutory maximum for the offense of

conviction is well below the upper end of the guideline range.

Second, because of defendant's extensive criminal record (23

criminal history points; 10 above the maximum, category VI), the

5G1.2 calculation results in the same guideline range as that

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arrived at pursuant to 2B3.1 for the instant bank robbery

offense. In most cases, the latter would be less than the former

and the total punishment would not exceed the hypothetical range

for the combined offenses. Nevertheless, the Sentencing

Commission carefully distinguished a "sentence for the instant

offense" from the "total punishment." See generally U.S.S.G.

5G1.3. Therefore, when determining whether the sentencing judge

departed from the guideline range, we look at the sentence

imposed for the instant offense, not the total punishment. This

is appropriate even were the total punishment beyond the range

calculated under 5G1.2, because that section is a guide, not a

mandate. See 5G1.3, comment. n.3 (instructing court to

"consider" 5G1.2 "to the extent practicable").

The trial court correctly looked to the guideline for

the offense of conviction, 2B3.1, and found that Parkinson had

an offense level of 32 and, as a career offender, a criminal

history category of VI. See U.S.S.G. 5G1.3, comment.

n.3(D)(illustrating that, absent departure, sentence must fall

within the guideline range for the instant offense). Although

this combination would ordinarily yield a guideline range of 210

to 262 months, as noted above, the statutory cap on the offense

of conviction here was 240 months. 18 U.S.C.A. 2113(a) (West

1994). Thus, the imposed 240-month sentence, to be served

concurrently with the undischarged portion of Parkinson's ten-to-

twenty year state sentence, was not a departure from the

guideline range for the instant offense.

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Would a departure have been justified?

Although we hold that the sentence was within the

guideline range, a departure in this case would be warranted in

any event. This Court reviews the sentencing court's decision to

depart using a three-step inquiry: first, are the circumstances

of the case sufficiently unusual to justify departure, United

States v. Qui ones, 26 F.3d 213, 217 (1st Cir. 1994); second, do

the relied-upon factual circumstances actually exist, United

States v. Rivera, 994 F.2d 942, 950 (1st Cir. 1993); and third,

is the departure reasonable, Jackson, 30 F.3d 202 n.3. See

generally United States v. D az-Villafa e, 874 F.2d 43, 49 (1st

Cir.), cert. denied 493 U.S. 862 (1989). Because defendant does

not challenge the reasonableness of the departure, we discuss

only the first two steps below. Our review of the district

court's conclusion that the case was sufficiently unusual to

warrant departure is plenary, but we will set aside that court's

determination that the relied-upon facts actually exist only if

they are clearly erroneous. D az-Villafa e, 874 F.2d at 49.

The sentencing judge in an abundance of caution

articulated his reasons for departing under the authority of

4A1.3. That section permits an upward departure when a

defendant's criminal history category "does not adequately

reflect the seriousness of the defendant's past criminal conduct

or the likelihood that [he] will commit other crimes . . . ."

United States v. Fahm, 13 F.3d 447, 449 (1st Cir. 1994)(quoting

U.S.S.G. 4A1.3 (policy statement)). Thirteen or more criminal

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history points place a defendant in criminal history category VI;

according to the presentence report, Parkinson had accumulated

twenty-three. Given the notable difference between the criterion

for category VI and defendant's score, the upward departure rests

on solid legal ground. See United States v. Brown, 899 F.2d 94,

97 (1st Cir. 1990) (upward departure from criminal history

category VI justified by defendant's twenty criminal history

points). Further, strong evidence exists that, given the

opportunity, defendant will continue to engage in criminal

activity. The two bank robberies discussed in this opinion

occurred within one month of his release from a fifteen-year

sentence. The extent of defendant's criminal history, combined

with his proclivity for repeat performances, warrant the

conclusion that the guidelines underestimate his level of

criminality. See Fahm, 13 F.3d at 450; Brown, 899 F.2d at 98.

Finally, Parkinson challenges the adequacy of the

district court's documentation of the factual basis for the

departure. He questions neither the reliability nor the accuracy

of the evidence upon which the district court explicitly relied.

See Fahm, 13 F.3d at 450. The district court need not state each

and every fact that supports the departure. Rather, it is

sufficient that the judge specifically identified his findings as

those set out in the presentence report.

Conclusion

For the reasons stated above, the sentence is affirmed.

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