United States v. Florence

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2194


UNITED STATES OF AMERICA,



                            Appellee,



                                v.



                        JAMES P. FLORENCE,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]


Before



                    Selya, Boudin and Lynch,

                                

                         Circuit Judges.


J. Martin Richey, Federal Defender Office, for appellant.

     Ben T. Clements, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief, for the

United States.


May 4, 1998


SELYA, Circuit Judge.  Defendant-appellant James P.

Florence strives to convince us that the district court erred when

it ordered a federal sentence to be served consecutively to the

undischarged portion of certain state sentences.  We are not

persuaded.

                                I.

                            Background

  In October 1993, the appellant asked a cousin who lived

in Kentucky to buy guns for him.  The cousin complied.  Florence

then brought the firearms into Massachusetts.  At the time the

appellant purchased, possessed, and transported the weapons, he was

a convicted felon (manslaughter and unlawful possession of a

firearm).

  On February 15, 1994, masked men used one of the

transported firearms, a Norinco semi-automatic pistol, to rob a

pizza parlor in Rosindale, Massachusetts.  A brigand armed with

that pistol shot a bystander, leaving him paralyzed.  Some weeks

later, a state trooper attempted to stop the appellant for a motor

vehicle infraction.  During an ensuing chase, Florence threw the

same Norinco pistol onto the median strip where the authorities

subsequently recovered it.

  Like the mills of the Gods, see  George Herbert, Jacula

Prudentum (1651), the wheels of justice sometimes grind slow. 

Nearly three years elapsed before a federal grand jury charged the

appellant with transporting a firearm across state lines and being

a felon in possession of a firearm.  See 18 U.S.C.  922(a)(3) and

(g)(1) (1994).  Both counts of the indictment referred to the

Norinco semi-automatic pistol.  The appellant eventually pled

guilty to these charges.  The district court imposed a 60-month

incarcerative term for the transportation offense and a 96-month

term for the felon-in-possession offense.  The court stipulated

that these sentences were to be served concurrently with each

other, but consecutively to all undischarged state sentences.

  At the time of the federal disposition (July 18, 1997),

the appellant was serving a two-year state sentence for possession

of heroin with intent to distribute (State Sentence No. 1), which

he had begun on April 17, 1996.  Between April and August 1996, he

received (and elected not to contest) five separate citations for

probation violations in connection with (1) a charge of heroin

possession, (2) a charge of marijuana possession, and (3) three

separate motor vehicle offenses.  In the same time frame, he also

pleaded guilty to several outstanding state charges, including two

separate charges related to possession of cocaine; a charge of

possession of heroin with intent to distribute; and a charge of

possession of marijuana with intent to distribute.  The state

courts revoked the appellant's probation, imposed concurrent

sentences for the probation violations and the new offenses, and

specified that the new sentences (none of which exceeded one year,

and all of which expired on or before May 21, 1997) would run

concurrently with State Sentence No. 1.  During the same period,

the state courts likewise revoked a one-year term of probation

stemming from an underlying narcotics offense and imposed a one-

year sentence (State Sentence No. 2) to be served "from and after"

the expiration of State Sentence No. 1.

  When Judge Harrington convened the federal disposition

hearing, the appellant had served approximately 15 months of the

total of three years' immurement levied against him for the

compendium of state offenses.  The remaining time (roughly 21

months) constituted the undischarged portion of his state sentences

(Nos. 1 and 2).

                               II.

                       The Legal Landscape

  Appellate review of a district court's application of the

sentencing guidelines demands a bifurcated inquiry.  The court of

appeals affords plenary review to the sentencing judge's assessment

of a guideline's legal meaning and scope, but reviews the judge's

factfinding only for clear error.  See United States v. Brewster,

1 F.3d 51, 54 (1st Cir. 1993); United States v. St. Cyr, 977 F.2d

698, 701 (1st Cir. 1992).

  Ordinarily, federal sentencing proceeds according to the

version of the guidelines in effect at the time that sentence is

pronounced.  See United States v. Harotunian, 920 F.2d 1040, 1041-

42 (1st Cir. 1990).  An exception exists, however, if changes in

the guidelines between the date of the offense and the date of

disposition threaten the defendant with harsher treatment.  In

deference to ex post facto concerns, the sentencing court then

customarily applies the version of the guidelines that obtained

when the defendant committed the crime.  See id.

  USSG 5G1.3 covers the sentencing of defendants who are

subject to undischarged terms of imprisonment (federal or state). 

In the instant case, the government and the appellant agree that

the 1993 version of section 5G1.3, in effect on the date  Florence

committed the federal offenses, should control.  We therefore

abjure independent consideration of the point and proceed to

analyze the appellant's claim under the November 1993 edition of

the sentencing guidelines.

     We reproduce in the margin the text of this guideline as

it read in 1993.  In general, this guideline contemplates three

somewhat different types of situations:  subsection (a) deals with

federal offenses committed during the pendency or service of a

state sentence; subsection (b) deals with state sentences arising

out of conduct related to the offense of conviction (i.e., conduct

which must be taken into account when calculating the federal

sentence); and subsection (c) applies to all other federal

sentences imposed while the defendant is serving an undischarged

term of imprisonment.  At the time of the federal disposition in

this matter, the appellant was serving a state term of imprisonment

for conduct wholly unrelated to his federal firearms offenses

(State Sentence No. 1), he had pending another undischarged state

term of imprisonment for unrelated conduct (State Sentence No. 2),

and he had perpetrated the federal offenses prior to the commission

of the state offenses that underlay those sentences.  Consequently,

section 5G1.3(c) applies here.

     In its 1993 iteration, section 5G1.3(c) provides that, in

cases not covered elsewhere in section 5G1.3, "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."  Former Application Note 3 placed a gloss on this

language, admonishing that "[t]o the extent practicable, the court

should consider a reasonable incremental penalty to be a sentence

for the instant offense that results in the combined sentence of

imprisonment that approximates the total punishment that would have

been imposed under section 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."  In turn, section

5G1.2 directed that, in regard to multiple counts of conviction,

the sentence on each count should run consecutively to the extent

necessary to produce a combined sentence equal to the total

punishment when all offenses are considered together.  See USSG

5G1.2(b)-(d).

     As if this litany of rules did not, in itself, create a

sufficient maze, we note that in 1993, as now, the procedure for

determining the offense level on multiple counts of conviction

required the sentencing court to "group" the counts to the extent

practicable.  See USSG 3D1.2.  Under the applicable grouping

rules, counts that "involve substantially the same harm" form a

single group.  USSG 3D1.2.  The court then calculates the offense

level for each count within each group, attributes to each group

the highest offense level of any count within it, compares the

groups to ascertain which has the highest offense level, considers

certain further adjustments (not relevant to our inquiry here), and

sentences the defendant based on that triage.  See United States v.

Hernandez-Coplin, 24 F.3d 312, 319-20 (1st Cir. 1994).

     Interleaving  this procedure with the analytic approach

envisioned by former Application Note 3 results in the following

paradigm for purposes of USSG 5G1.3(c).  The district court must

first group the state convictions that undergird the undischarged

state sentences as if they were federal offenses and ascertain what

term of imprisonment those offenses would yield had they been

directly subject to the federal sentencing guidelines.  The court

then must calculate the total sentence that the defendant would

have received had all the offenses been prosecuted federally (in a

single proceeding).  If the projected sentence exceeds the sentence

that the defendant ordinarily would serve on the federal

convictions alone, the district court should compensate for this

disparity by running all (or some part) of the defendant's federal

sentence consecutively to the undischarged portion of his state

sentence.  If, however, the projected sentence does not exceed the

time that the defendant ordinarily would serve on the federal

sentence alone, the district court should run the federal sentence

concurrently with the undischarged state sentence.

     This somewhat awkward model is not obligatory in every

case to which section 5G1.3(c) pertains.  By its terms, former

Application Note 3 applies only "to the extent practicable," and,

thus, the paradigm that we have outlined should not be employed

blindly or when doing so "unduly complicates or prolongs the

sentencing process."  USSG 5G1.3, comment. (n.3).  Not

surprisingly, then, experience has shown that the paradigm applies

to "a good many of the cases likely to arise under subsection (c),"

United States v. Gondek, 65 F.3d 1, 3 (1st Cir. 1995), but not to

all such cases.

                               III

                            Discussion

     In this case, the district court sentenced the appellant

to a 96-month term of imprisonment, to be served consecutively to

the undischarged portion of his state imprisonment. On appeal,

Florence avers that the court failed to follow the method

prescribed by former Application Note 3 in determining whether his

federal sentence should run consecutive to, or concurrent with, his

state sentences.  He further contends that, had the court employed

this methodology, it would have concluded that the federal sentence

should run concurrently with the undischarged portion of his state

immurement.

     To reach this result, the appellant purports slavishly to

follow the paradigm outlined above.  He aspires to assemble all his

state offenses in one group and the two federal offenses of

conviction in another.  But his efforts are somewhat less than

comprehensive:  when constructing his state grouping, the appellant

only considers the narcotics convictions and ignores all the other

convictions, some because (in his view) they are subsumed under the

umbrella of the narcotics convictions and the rest   particularly,

the vehicular offenses and the probation revocations   because they

have no federal analogues and, in any event, are irrelevant.  On

this basis, the highest offense level within the state drug-crime

group is 12 (for possession with intent to distribute cocaine).  In

contrast, the federal offenses carry an offense level of 21.  From

this premise, the appellant concludes that, by operation of former

Application Note 3, his total sentence should not exceed 96 months

(the apex of the guideline sentencing range prescribed for a

defendant who has an offense level of 21 and who, like Florence, is

in criminal history category VI).  See USSG Ch.5, Pt. A (Sentencing

Table).  A fortiori, the district court should have run his federal

sentence concurrently with the undischarged portion of his state

sentences.

     The appellant's approach is flawed in several respects. 

In United States v. McCarthy, 77 F.3d 522 (1st Cir. 1996), we noted

that when section 5G1.3(c) arguably applies, "a sentencing court

should initially look to [former Application] Note 3 for guidance

in calculating an appropriate incremental punishment, [but] it

nonetheless has discretion to follow a different course in a small

number of cases where adherence to Note 3 would be impracticable

and result in an inappropriate incremental punishment."  Id. at

538.  As the district court recognized, this is such a case. 

Former Application Note 3 does not tell a federal court how to

implement a grouping analysis where, as here, the state charges  

such as probation violations   have no specific analogues in the

sentencing guidelines.

     This lack of a ready comparison not only renders

impracticable resort to the paradigm spawned by former Application

Note 3, but also ineluctably leads a rudderless sentencing court to

Chapter 7 of the Guidelines Manual.  That chapter instructs that

"any sentence of imprisonment for a criminal offense that is

imposed after revocation of probation or supervised release

[should] be run consecutively to any term of imprisonment imposed

upon revocation."  USSG 7B1.3, comment. (n.5).  We already have

had occasion to construe the meaning of this commentary in a

context in which the defendant was serving an undischarged state

term of imprisonment for, inter alia, parole revocation.  SeeMcCarthy, 77 F.3d at 538 (stating that this commentary suggests

that "imposing a wholly consecutive sentence was correct"); seealso United States v. Torrez, 40 F.3d 84, 87-88 (5th Cir. 1994)

(holding that USSG 7B1.3 favors the imposition of a consecutive

sentence when the existing sentence results from parole

revocation).

     Because we see no relevant distinction between parole

revocation and probation revocation, we hold that this aspect of

the McCarthy court's analysis controls here.  At the time of the

federal disposition hearing, the appellant was serving a two-year

term of incarceration (State Sentence No. 1) that overlapped with

five concurrent sentences stemming from probation violations. 

Moreover, upon completion of this sentence, Florence forlornly

faced a further one-year term (State Sentence No. 2) based entirely

on a probation revocation.  Hence, even had the district court

applied former Application Note 3, it could have run Florence's

sentence consecutively  under USSG 7B1.3.  See McCarthy, 77 F.3d

at 538.

     The appellant has a fallback position.  He contends that,

save for the two-year sentence for distribution of heroin (State

Sentence No. 1) and the consecutive one-year sentence for a single

probation violation (State Sentence No. 2), all his other state

sentences had expired by the time Judge Harrington imposed the

federal sentence, and thus are irrelevant for federal sentencing

purposes.  He argues, in effect, that the federal sentence should

at the very least run concurrently with the balance of State

Sentence No. 1 (roughly nine months), as the heroin offense,

simpliciter, has a ready federal analogue, and the overlapping

terms imposed in consequence of the five probation violations all

had lapsed.  In his view, this left a "gap" into which the paradigm

contemplated by former Application Note 3 should have been

inserted.

     The appellant's prior state sentences are discussed in

Part I, supra.  To assist the reader, we have prepared and

reproduce in the Appendix a chronological chart reflecting those

sentences.  After studying this chart, we conclude that the

appellant's reasoning does not hold water.

     By its own language, former Application Note 3 creates a

paradigm that operates only "[t]o the extent practicable."  We do

not think it is "practicable" to compute the appellant's federal

sentence in the manner that he suggests.  After all, the one-year

from-and-after sentence imposed in response to the appellant's

latest probation violation (State Sentence No. 2) has no federal

analogue and, based upon the authorities previously cited, that

sentence ought not to be served concurrently with a subsequent

federal sentence.  See McCarthy, 77 F.3d at 538-39; Torrez, 40 F.3d

at 87-88; see also USSG 7B1.3, comment. (n.5).  Thus, were the

district court bound to adhere to the appellant's construct, it

would be forced to run the federal sentence concurrent with the

"gap"   the nine-month undischarged portion of the state sentence

that the appellant was serving on the date of the federal

disposition   and then run the federal sentence consecutive to

State Sentence No. 2 from and after the expiration of State

Sentence No. 1.  See Appendix.  Because this odd juxtaposition

would "unduly complicate[] . . . the sentencing process," USSG

5G1.3(c), comment. (n.3), use of the paradigm is not obligatory

here.  Former Application Note 3 does not demand that a federal

sentencing court engage in elaborate mental gymnastics that far

exceed what is customary even within the convoluted federal

sentencing scheme.

     The appellant's riposte is that, even if the letter of

former Application Note 3 does not compel a concurrent or partially

concurrent sentence, the district court should have honored the

Note's spirit by running nine months of the federal sentence

concurrent with the undischarged portion of the appellant's state

incarceration.  We agree that this would have been within the

district court's discretion   but it is quite another thing to say

that the court was obliged to shape the federal sentence in that

way.  The predominant objective of USSG 5G1.3(c) is "to achieve a

reasonable incremental punishment for the [offense of conviction]." 

Under the appellant's approach, the district court would be forced

to ignore a wide array of state offenses for which the appellant

received little reproof and, in the bargain, to extend leniency

based on a state sentence that already had absorbed the sting of

numerous other state sentences.  On these facts, we cannot second-

guess the district court's seemingly wise determination that a

partially concurrent federal sentence would not achieve a

reasonable incremental punishment for the offense of conviction.

     United States v. Whiting, 28 F.3d 1296 (1st Cir. 1994),

much relied on by the appellant, does not compel a different

result.  In Whiting, we ruled that the district court erred in

imposing a wholly consecutive federal sentence on a defendant,

Bartlett, without attempting to compute the punishment called for

by former Application Note 3.  See id. at 1310-11.  There are four

significant distinctions between Whiting and the case at bar. 

First, the offenses on which Bartlett's state sentence was based

had federal analogues, thus permitting simulation of federal

grouping practices.  See id. at 1310-11.  Second, Whiting did not

involve either prior state sentences imposed for probation

violations or an amalgam of overlapping state sentences.  See id. 

Third, the appeal in Whiting arose in response to the district

court's mistaken belief that section 5G1.3 required either wholly

concurrent or consecutive sentencing, rather than permitting

partially concurrent or consecutive sentences where appropriate. 

See id.  Finally, Whiting dealt with the 1991 version of USSG

5G1.3, and that version was amended in 1992 in a way that weakens

the appellant's reliance on it.  See United States v. Redman, 35

F.3d 437, 439-42 (9th Cir. 1994) (discussing this revision).

     We need go no further.  Refined to bare essence, the

guidelines call for the district court, when USSG 5G1.3 applies,

to impose a sentence that will result in a "reasonable incremental

punishment."  Viewed in a practical, commonsense light, pairing the

appellant's federal sentence with the undischarged portion of his

state sentences would not accomplish this result.  Because so many

of Florence's multiple state sentences ran concurrently, sentencing

him on the federal firearms charges to yet another concurrent term

effectively would have obliterated any penalty for those offenses. 

By contrast, stringing the federal sentence consecutively to the

undischarged portion of the state sentences effected what is

plainly, in these circumstances, a reasonable incremental

punishment.  See McCarthy, 77 F.3d at 539.



Affirmed.                         APPENDIX


CHARGE

DATE OF

DISPOSITION

COURT

SENTENCE

APPROXIMATE

EXPIRATION

OF SENTENCE*


possession of

heroin with

intent to

distribute

April 17,

1996

Roxbury

Dist. Ct.

2 years

[State

Sentence 

No. 1]

April 17,

1998


probation

violations(2)

(underlying

offenses:

drugs)

April 17,

1996

Roxbury

Dist. Ct.

one year on

each

(concurrent)

April 17,

1997


possession of

cocaine

May 20,

1996

Hingham

Dist. Ct.

six months

(concurrent)

November 20,

1996


probation

violations(3)

(underlying

offenses:

vehicular)

May 21,

1996

Quincy

Dist. Ct.

one year on

each

(concurrent)

May 21, 

1997


probation

violation

(underlying

offense:

drugs)

May 21,

1996

Quincy

Dist. Ct.

one year

"from and

after"

[State

Sentence

No. 2]

April 17,

1999


possession of

heroin and

marijuana

with intent

to distribute

(2 charges)

June 25,

1996

Boston

Mun. Ct. 

nine months

on each

(concurrent)

March 25,

1997


possession of

cocaine

August 2,

1996

Plymouth

Dist. Ct.

six months

(concurrent)

February 2,

1997


*Calculations are before good-time credits, etc., if any.