United States v. Gondek

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-1065



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                 LANCER SCOTT GONDEK,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



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



                                 ____________________



                                        Before



                                Boudin, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
                                     ____________________



                        and Schwarzer,* Senior District Judge,
                                        _____________________



                                 ____________________



            James S. Hewes, by Appointment of the Court, for appellant.
            ______________

            F. Mark Terison,  Assistant United States Attorney, with whom  Jay
            _______________                                                ___

        P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.  Chapman,
        _____________                                   _____________________

        Assistant United States Attorney, were on brief for appellee.


____________________



                                  September 6, 1995

                                 ____________________



        ________________



        *Of the District of Northern California, sitting by designation.



BOUDIN, Circuit  Judge.  In November  1992, Lancer Scott
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            Gondek was convicted  in Maine Superior Court of  robbery and



            burglary and sentenced  to   prison.  While  on parole  after



            imprisonment,   Gondek  was   arrested  in  March   1994  for



            possession of a firearm.  The federal government indicted him



            under  the  felon  in  possession  statute.    18  U.S.C.    



            922(g)(1),  924(a)(2).   In  consequence of  his arrest,  his



            failure to attend a drug  treatment program, and his  alcohol



            use, the state court  revoked Gondek's parole and imposed  on



            him a three-year prison sentence.  Gondek then pled guilty in



            federal court to a single count of firearms possession.  



                 In January  1995, the district court  imposed a 77-month



            sentence  on   Gondek  and  concluded  that   the  Sentencing



            Guidelines required the federal sentence to run consecutively



            to  the state  sentence imposed  after the  parole violation.



            Gondek has now  appealed the federal sentence, arguing that a



            consecutive sentence  was not  mandatory and should  not have



            been  ordered.   His only  substantial argument  involves the



            interpretation of U.S.S.G.   5G1.3, a  set of provisions that



            are less than a model of clarity.



                 Section  5G1.3 governs  the imposition  of sentences  on



            defendants who are convicted  of a crime while subject  to an



            undischarged term of imprisonment for a  previous conviction.



            Under subsection (a), the new sentence must be consecutive if
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            a defendant is convicted for a crime committed while "serving


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a term of imprisonment  (including work release, furlough, or



            escape   status),  or  after   sentencing  for,   but  before



            commencing   service   of,   such  term   of   imprisonment."



            Subsection (b)  provides for a concurrent  sentence where the
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            undischarged  term  resulted  from offenses  "that  have been



            fully  taken  into  account"  (e.g.,  as  an  adjustment)  in
                                           ____



            determining  the  offense  level  for  the  present  offense.



            Finally, under  subsection  (c) in  all other  cases the  new



            sentence  is to  be consecutive  "to the extent  necessary to



            achieve a  reasonable incremental punishment  for the instant



            offense."  



                 The commentary  for subsection (c) gives  the court some



            latitude  in determining  what is  a "reasonable  incremental



            punishment,"  although  it  offers  one  generalization  that



            covers a good  many cases:   application note 3 says  that to



            the extent  practicable, the  court should achieve  the total



            punishment that  would  have been  imposed  "had all  of  the



            offenses been federal offenses for which sentences were being



            imposed at the  same time."   The  commentary concludes  with



            application note 4, added in 1993, which reads as follows:



                 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 be

                 served 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


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supervised  release  (in  accord  with  the  policy

                 expressed in   7B1.3 and 7B1.4).



                 The language  of application note 4  applies directly to



            this  case.  Gondek  was on state  parole at the  time of the



            present firearms possession  offense, and the district  court



            followed the directive that the sentence  for the new offense



            "should be  imposed to  be served consecutively  to the  term



            imposed for the violation of . . . parole . . . ."   The only



            question  is whether  the district  court erred  in believing



            that  this result  was  mandated by  the  guidelines; if  the



            commentary were  only a  suggestion, then the  district court



            would  be obliged to decide whether as a matter of discretion



            it wished to make the term consecutive or concurrent.



                 There is an argument  for reading application note 4  to



            reserve discretion to  the district court.   The note,  after



            all,  is  appended to  a  subsection  that  does confer  some



            discretion and  is explicitly  labeled a  "policy statement,"



            although  commentary policy  is  also binding.   Williams  v.
                                                             ________



            United  States, 503 U.S. 193, 200-01 (1992).  Some might also
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            attach  weight to the note's use of the word "should," rather



            than  "shall," see United States v. Whiteley, 54 F.3d 85, 89,
                           ___ _____________    ________



            91 (2d Cir. 1995), but  these shadings in guideline  language



            do not appear to be very reliable guides.



                 However,  the greater  weight of  the evidence  suggests



            that, departure to one side, application note 4 is mandatory.



            First, the simple and straightforward language of application


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note 4 says that if the defendant committed the offense while



            on parole,  the  sentence should  be  made consecutive.    No



            qualification  is  stated  or  suggested.   In  other  words,



            application  note 4 represents the Commission's determination



            as to  what is a  "reasonable incremental punishment"  in the



            narrow situation described in the note.  



                 Second,  the rationale  for  this  special treatment  is



            entirely  understandable.    Unlike  many cases  governed  by



            subsection  (c), where  the two  offenses arise  from related



            events,  the  parole  case  covered  by  application  note  4



            involves  a new  offense normally  unrelated to  the original



            offense  that led to the  parole.  Instead,  the situation is



            closely akin to the case  of the defendant who commits  a new



            offense while  still in prison,  the very situation  in which



            subsection  (a) instructs  that  the new  sentence  is to  be



            served consecutively.



                 Third,  the guidelines  elsewhere  provide that  where a



            federal  court  imposes  a  term of  imprisonment  "upon  the



            revocation of probation or  supervised release," it is  to be



            served  consecutively to  any sentence  of imprisonment  then



            being served.  U.S.S.G.   7B1.3(f).  This section does not in



            terms  apply to Gondek's case because his revocation was by a



            state  court and was prior  to the federal  sentence; but the



            policy  of   this  provision,  which   is  explicitly  cross-



            referenced  in  application  note  4,  makes  irrelevant  the


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sequence  of events.    Reading the  two provisions  together



            reenforces our view that application note 4 is mandatory.



                 Fourth, one  circuit has agreed that  application note 4



            is mandatory, United States v. Bernard, 48 F.3d 427, 432 (9th
                          _____________    _______



            Cir. 1995); two others reached the same result, for sentences



            imposed  prior to  application  note 4,  based  in part  upon



            U.S.S.G.   7B1.3(f), United States v. Glasener, 981 F.2d 973,
                                 _____________    ________



            975 (8th Cir. 1992);  United States v. Flowers, 13  F.3d 395,
                                  _____________    _______



            397  (11th Cir.  1994); and  apparently no other  circuit has



            agreed with Gondek's view.   Although we are obliged  to make



            our own judgment, our  confidence in it is reenforced  by the



            reaction of other circuits.



                 There  are  three  loose   ends  that  deserve  separate



            treatment.    On a  technical level,  one  might ask  why the



            Commission, in  adding application note  4 in  1993, did  not



            simplify the  matter by expanding the  language of subsection



            (a) to embrace parole.  It is probably enough to observe that



            subsection  (a) is  addressed primarily  to cases in  which a



            defendant commits the  new offense while  "serving a term  of



            imprisonment"; and  it would have required  some reworking of



            subsection  (a) as a whole--not merely the insertion of a few



            words--to  allow  it   to  include   parole,  probation   and



            supervised release.



                 The broader  question is whether  there is  a clash,  in



            spirit if  not in  language, between the  apparently generous


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grant  of  discretion  conveyed  by subsection  (c)  and  the



            specific,  restrictive  directive  of  application   note  4.



            Subsection (c)  had to  be generally  phrased because  it was



            designed as a  catch-all for all  situations not embraced  by



            subsections (a)  and (b), including ones  that the Commission



            might not be  able to envision in advance.   It does not seem



            to us inconsistent  for the Commission  to identify one  such



            situation  and treat  it expressly  in commentary,  a pattern



            common throughout the guidelines.



                 Indeed,  in subsection  (c)  itself application  note  3



            reflects the same technique  and suggests that it is  easy to



            overstate the  amount of  discretion conferred by  subsection



            (c)  as  a  whole.   As  already  noted,  application note  3



            contains  a formula  that governs  a good  many of  the cases



            likely to  arise under subsection  (c).  That  formula, which



            calls  on the court to  compute the overall  punishment as if



            both sentences were imposed  by a federal court in  one case,



            involves  a  regime that  is  virtually  mathematical in  its



            application.  See  United States  v. Whiting,  28 F.3d  1296,
                          ___  _____________     _______



            1310-11 (1st Cir. 1994), cert. denied, 115 S. Ct. 378 (1994).
                                     ____________



                 Something more can made of the fact that, under U.S.S.G.



              4A1.1(d),  Gondek is  automatically subject to  a two-point



            increase in  criminal history points for  his present offense



            because it was committed while on parole for another offense.



            To insist that  the new  sentence be consecutive  as well  is


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therefore  a  form of  double  counting,  providing a  policy



            argument in  favor of a lenient reading.  But forms of double



            counting  are  not  unusual  under  the  guidelines  and  are



            permissible where intended, United States v. Newman, 982 F.2d
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            665, 673 (1st Cir. 1992), cert. denied, 114 S. Ct. 59 (1993),
                                      ____________



            as we think is the case here.



                 In an  entirely independent argument, Gondek  says that,



            if the guidelines make a consecutive sentence mandatory, then



            they  violate   18  U.S.C.      3584(a),  a   provision  that



            contemplates  a   choice  by  the   district  court   between



            consecutive and  concurrent sentences.    We have  previously



            held  that the  court's discretion  under section  3584(a) is



            constrained where the Commission  has promulgated a governing



            guideline.   United States v.  Flowers, 995 F.2d  315, 316-17
                         _____________     _______



            (1st  Cir.  1993).    Indeed,  the  statute  authorizing  the



            guidelines specifically provides for them to include rules to



            be used  in determining "whether multiple  sentences to terms



            of  imprisonment should  be  ordered to  run concurrently  or



            consecutively . . . ."  28 U.S.C.   994(a)(1)(D).



                 Gondek's  final argument  is a  claim that  the district



            court  should  have  applied   subsection  (b),  rather  than



            subsection  (c), of U.S.S.G.   5G1.3.  The former, as already



            noted, provides for concurrent sentences subsection where (a)



            does  not apply  and  the undischarged  term of  imprisonment



            "resulted  from offense(s)  that have  been fully  taken into


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account"  in determining  the offense  level for  the instant



            offense.   U.S.S.G.    5G1.3(b).    Gondek argues  that  this



            quoted   language  governs,   primarily  because   the  prior



            convictions were what made  him a felon subject to  the felon



            in possession statute.



                 The critical phase--"fully  taken into  account"--refers



            to a case in which the prior criminal conduct is also offense
                                                                  _______



            conduct  in  the present  case;  examples,  indicated by  the



            commentary, would  be state and federal  prosecutions for the



            same conduct or a federal prosecution  that treated the state



            offense  as  relevant  conduct  in  determining  the  federal



            offense  level.  U.S.S.G.   5G1.3, comment. (n.2).  The prior



            felony conviction  that makes it unlawful to  carry a firearm



            is not "taken  into account"  in this manner  in the  federal



            sentencing,  and the  rationale  of subsection  (b) does  not



            apply.  See Flowers, 13 F.3d at 397.
                    ___ _______



                 Although  we  think  that  the  stronger  arguments  and



            pertinent precedent  favor our interpretation  of application



            note 4, these arguments  do not remove every  possible doubt.



            Where  literally years of imprisonment may turn on the issue,



            even a  shadow of a doubt ought not be allowed to persist.  A



            copy of this  opinion will be  transmitted to the  Sentencing



            Commission  with the suggestion  that it  consider clarifying



            its intention.



                 Affirmed.      
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