UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-60586
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROMAN MARTIN HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(August 29, 1995)
Before REYNALDO G. GARZA, KING AND HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
BACKGROUND
On June 2, 1994, Roman Martin Hernandez ("Hernandez") pled
guilty to one count of conspiracy to possess with the intent to
distribute over 100 kilograms of marijuana in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). Six months earlier, on
December 6, 1993, Hernandez had been sentenced in the Middle
District of Florida to 84 months of imprisonment on an unrelated
drug charge. At the sentencing hearing Hernandez argued that the
sentencing guidelines required the district court to order that his
sentence run concurrently with the undischarged Florida sentence.
The district court disagreed and sentenced him to a consecutive 120
month term of imprisonment. Hernandez timely filed a notice of
appeal. For the reasons stated below we vacate the defendant's
sentence and remand the case for re-sentencing.
DISCUSSION
I.
The government asserts that this court should review
Hernandez' sentence for plain error only. It contends that the
issue raised before this Court was not properly preserved for
appeal because Hernandez did not cite the applicable section of the
sentencing guidelines, i.e., § 5G1.3(c), and erroneously argued to
the district court that his sentence should run concurrent with his
undischarged prison term under § 5G1.3(b).
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 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. See, e.g.,
United States v. Torrez, 40 F.3d 84 (5th Cir. 1994) (plain error
review applied where defendant never suggested or argued that his
sentence should be imposed concurrently under § 5G1.3 or
2
otherwise). More importantly, the structure of § 5G1.3 is designed
to cover all circumstances that may arise when sentencing a
defendant who has an undischarged term of imprisonment. Thus, if
neither subsection (a) or (b) applies, subsection (c) completes the
universe of sentencing possibilities under § 5G1.3.
Subsection (a) applies if the defendant commits the instant
offense while serving an undischarged term of imprisonment or after
sentencing, but before serving the sentence, and subsection (b)
applies if the conduct resulting in the undischarged term of
imprisonment is taken into account in determining the offense level
for the instant offense. U.S.S.G. § 5G1.3. When the instant
offense was committed, Hernandez was not serving a term of
imprisonment or awaiting surrender following sentencing, nor was
the Florida offense considered a part of the same course of
conduct.1 Because subsections (a) and (b) were inapplicable at
sentencing, subsection (c) clearly applied.2 Therefore, as we
discuss below, it was error for the district court not to refer to
subsection (c) or its accompanying commentary in imposing sentence.
II.
The district court has discretion to impose a sentence
concurrently or consecutively on a defendant who is already subject
to an undischarged term of imprisonment. 18 U.S.C. § 3584(a).
However, Congress has directed the district courts, in making this
1
The marijuana from the Florida offense was not included as
relevant conduct in determining his offense level.
2
In its appellate brief even the government concedes that
subsection (c) was clearly applicable at sentencing.
3
determination, to "consider" the applicable guidelines and policy
statements in effect at the time of sentencing. 18 U.S.C. §
3553(a).
Section 5G1.3(c) provides that, in any case other than those
covered under subsections (a) and (b), "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(c) (p.s.) (emphasis added). The
commentary to section 5G1.3, Application Note 3, offers guidance
for the district court in applying subsection (c):
Where the defendant is subject to an undischarged term of
imprisonment in circumstances other than those set forth in
subsections (a) or (b), subsection (c) applies and the court
shall impose a consecutive sentence to the extent necessary to
fashion a sentence resulting in a reasonable incremental
punishment for the multiple offenses. In some circumstances,
such incremental punishment can be achieved by the imposition
of a sentence that is concurrent with the remainder of the
unexpired term of imprisonment. In such cases, a consecutive
sentence is not required. To the extent practicable, the
court should consider a reasonable incremental penalty to be
a sentence for the instant offense that results in a combined
sentence of imprisonment that approximates the total
punishment that would have been imposed under § 5G1.2
(Sentencing on Multiple Counts of Conviction) had all of the
offenses been federal offenses for which sentences were being
imposed at the same time.
(emphasis added).
To the extent that they interpret substantive guidelines and
do not conflict with them or with any statutory directives, policy
statements contained in the Sentencing Guidelines are
authoritative. Williams v. United States, 112 S.Ct. 1112, 1119
(1992). Cf. United States v. Headrick, 963 F.2d 777 (5th Cir.
4
1992) (policy statements in Chapter 7 of the Sentencing Guidelines
must be considered, but are advisory only because they do not
interpret or explain any statute or guideline). We believe that §
5G1.3(c), a policy statement, is binding on district courts because
it completes and informs the application of a particular guideline.
See United States v. Brewer, 23 F.2d 1317, 1322 (8th Cir. 1994)
("This policy statement interprets § 5G1.3, whose purpose is to
impose `an appropriate incremental punishment for the instant
offense that most clearly approximates the sentence that would have
been imposed had all the sentences been imposed at the same
time.'") (quoting U.S.S.G. § 5G1.3 comment. (backg'd)). If a
defendant is subject to an undischarged term of imprisonment and
neither subsection (a) or (b) applies, subsection (c) directs that
the district court impose a consecutive sentence "to the extent
necessary to achieve a reasonable incremental punishment for the
instant offense." U.S.S.G. § 5G1.3(c) (p.s.). Therefore, the
district court has no discretion in this regard; without detracting
from its discretion to follow the suggested methodology in the
commentary, discussed infra, we hold that the district court must
consider the policy statement to this particular guideline when
applicable. Otherwise, the sentence may result in an incorrect
application of the guidelines. Williams, ---S.Ct.---, 117 L.Ed.2d
at 353; United States v. Sorensen, 58 F.3d 1154, 1158 (7th Cir.
1995) (failure to apply § 5G1.3(c) is the same as not applying any
other guideline and is thus appealable).
Similarly, where the commentary to a guideline section
5
functions to interpret that section or to explain how it is to be
applied, a sentencing court is bound to consider its implications,
unless it is plainly erroneous or inconsistent with the guidelines.
Stinson v. United States, ---U.S.---, 113 S.Ct. 1913, 1917-20
(1993); United States v. Redman, 35 F.3d 437, 439 (9th Cir. 1994),
cert. denied, ---U.S.---, 115 S.Ct. 922 (1995). Because
Application Note 3 to § 5G1.3 interprets this policy statement and
explains how it should be applied, a sentencing court is bound to
consider its implications. United States v. Coleman, 15 F.3d 610,
612 (6th Cir. 1994). Therefore, the district court must consider
the suggested methodology before determining whether a sentence
should run consecutively or concurrently.
However, due to the permissive language of the commentary, we
have decided that the suggested methodology is advisory only.3
United States v. Torrez, 40 F.3d 84, 87 (5th Cir. 1994) (the
"should consider" language in Application Note 3 denotes merely one
possible manner of determining the appropriate incremental
penalty). In other words, the district court maintains its
discretion to reject the suggested methodology, but only after it
has considered the methodology's possible application in reaching
a reasonable incremental punishment. See id.; Redman, 35 F.3d at
441; Coleman, 15 F.2d at 613; United States v. Holifield, 53 F.3d
11, 16 (3rd Cir. 1995). If the district court chooses not to
follow the methodology, it must explain why the calculated sentence
3
The methodology is simply meant to "assist the court in
determining the appropriate sentence." U.S.S.G. § 5G1.3 comment.
(n.3)
6
would be impracticable in that case or the reasons for using an
alternate method.4 Redman, 35 F.3d at 441; Holifield, 53 F.3d at
16-17. Thereafter, the district court is left with discretion to
impose a sentence which it believes provides an appropriate
incremental punishment.5
After reviewing the record, we find that the district court
did not consider § 5G1.3(c), its methodology, or explain why it was
not employed. Although it is true that the district court
expressed its desire to impose a harsh sentence on the defendant
for his past punishment, or lack thereof, we believe it was error
for it not to have addressed the sections above.
For the foregoing reasons, the district court's decision is
VACATED and REMANDED for consideration of § 5G1.3(c) and its
sentencing methodology.6
4
In dicta, this Court has stated that if subsection (c) is
applicable, "we would be required to vacate and remand for re-
sentencing [if] the district court failed to use the methodology
prescribed by subsection (c) or to explain why such a methodology
would be impracticable in this case." United States v. Bell, 46
F.3d 442, 446 n.8 (5th Cir. 1995). We decline to follow this dicta
to the extent that it would require a district court to do more
than explain its reasons for not employing the commentary
methodology. Thus, although a district court might state why it
would be impracticable to apply the suggested methodology, it is
not necessary to justify its rejection of the methodology.
5
We agree with the Ninth Circuit that a "decision to impose a
consecutive sentence is not a departure from the guidelines."
Redman, 35 F.3d at 442. The district court need not apply a
departure analysis in imposing an incremental punishment because
the commentary's methodology is permissive and not as mandatory as
most guideline provisions. Id. But see United States v. Brewer,
23 F.3d 1317 (8th Cir. 1994) (district court must perform departure
analysis if it decides not to follow the suggested methodology).
6
We note that the district court may very well impose the same
sentence on the defendant after remand. Indeed, at sentencing, the
7
district court clearly felt that the defendant had repeatedly
engaged in drug trafficking offenses and had not received
sufficient punishment for those activities. Therefore, if the
district court considers the methodology in Application Note 3 and
nevertheless believes that it will not provide an appropriate
incremental punishment, it has the discretion to impose a harsher
sentence on the defendant, including the one originally imposed.
However, the district court must provide its reasons for using an
alternate method at sentencing.
8