PER CURIAM:
The appellant was convicted of two offenses and sentenced to concurrent prison terms. He appeals one of these convictions. We affirm under the concurrent sentence doctrine.
Appellant Lorenzo Fuentes-Jimenez, a Cuban refugee, was being detained at the United States Penitentiary in Atlanta, Georgia pursuant to 8 U.S.C. § 1252(c) (1982)
awaiting deportation to Cuba.
On
July 14, 1982, Raul Oritz, the lieutenant in charge of the cellblock in which the appellant was housed, “E” house, was escorting a group of officials on a tour of “E” house. The appellant banged on his celldoor and screamed something in Spanish at the passing group. After the group left, Oritz sent the staff counselor in charge of “E” house, Robert E. Nance, to bring appellant down to his office to discuss appellant’s behavior. As instructed, Nance went to appellant’s cell. Following normal procedures he requested appellant to place his hands through the food slot of his cell so that he could be handcuffed before being taken out of the cell. When appellant refused, Nance called another officer for assistance. After the other officer arrived, Nance opened the celldoor but quickly shut it when appellant threatened in broken English, “I will kill you.” Nance also noticed that the appellant had what appeared to be a knife in his right hand. Nance then radioed for more assistance and asked that the officers bring him a body shield.
Two more officers, Webster and Henry, arrived shortly thereafter bringing a body shield with them. Nance again opened the celldoor, this time to allow appellant’s cellmate out. At that time, appellant was standing up by the beds, approximately six feet from the door.
After removing appellant’s cellmate from the cell, Nance returned for appellant. With the body shield in front of him Nance opened the celldoor and attempted to enter. He was forced back out of the cell, however, when appellant thrust the object in his hand at Nance. Nance attempted to enter the cell again, but by this time appellant had pushed the bunk bed in front of the celldoor, partially blocking Nance’s entry. As Nance attempted to get through the remaining opening, he was cut by appellant several times and forced back out of the cell. Finally, Nance dropped the body shield, entered the cell and, using the bed, pinned appellant against the back wall. Officers Henry and Webster then entered the cell and attempted to subdue appellant. Appellant swung out at Officer Henry and cut him on the hand. Henry and Webster both observed that appellant was holding a razor blade. Appellant then crawled under the bed and was eventually dragged out by the officers and handcuffed. Shortly after the incident Officer Robinson was sent to the cell and found a double-edged razor blade on the floor.
On May 23, 1983, the appellant was indicted on four counts. Counts one, two, and three charged appellant with violating 18 U.S.C. § 111 (1982) by assaulting Officers Nance, Henry, and Webster, respectively, while they were engaged in the performance of their official duties.
Count four alleged that appellant had violated 18 U.S.C. § 1792 (1982) by conveying from one place to another within the federal penitentiary where he was incarcerated a weapon designed to kill, injure and disable, to wit, a razor blade.
Appellant went to trial on July 20, 1983, and the jury found him guilty as charged on counts one and four of the indictment, guilty of the lesser included offense of simple assault on count two, and not guilty on count three.
The court sentenced appellant to three years in prison on counts one and four and three months in prison on count two.
The sentences in counts two and four were to run concurrently with that imposed for count one. Appellant now appeals his count four conviction under 18 U.S.C. § 1792 for conveying a weapon.
The concurrent sentence doctrine provides that, if a defendant is given concurrent sentences on several counts and the conviction on one count is found to be valid, an appellate court need not consider the validity of the convictions on the other counts.
Roviaro v. United States,
353 U.S. 53, 59 n. 6, 77 S.Ct. 623, 627 n. 6, 1 L.Ed.2d 639 (1957);
United States v. Evans,
572 F.2d 455, 476 (5th Cir.),
cert. denied,
439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978).
The doctrine, however, is not a jurisdictional bar to review, but a tool of judicial convenience, exercised at the court’s discretion.
Benton v. Maryland,
395 U.S. 784, 789-91, 89 S.Ct. 2056, 2060-61, 23 L.Ed.2d 707 (1969);
United States v. Wyatt,
611 F.2d 568, 569 n. 5 (5th Cir.1980);
United States v. Evans,
572 F.2d at 476. The doctrine should not be applied when “there is a significant likelihood that the defendants will suffer adverse collateral consequences from the unreviewed conviction.”
United States v. Rubin,
591 F.2d 278, 280 (5th Cir.),
cert. denied,
444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979).
In the instant case, we find that the record establishes no basis for believing that the appellant will suffer adverse collateral consequences if appellant’s section 1792 conviction is affirmed under the collateral sentence doctrine. The affirmance of this conviction will not affect appellant’s eligibility for parole.
See United States v. MacPherson,
664 F.2d 69, 74 n. 3 (5th Cir. Unit B 1981);
United States v. Rubin,
591 F.2d at 281-82. An examination of the guidelines the Parole Commission must apply,
see
18 U.S.C. § 4206 (1982), in setting appellant’s release date makes this clear. Under the guidelines, 28 C.F.R. § 2.20
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM:
The appellant was convicted of two offenses and sentenced to concurrent prison terms. He appeals one of these convictions. We affirm under the concurrent sentence doctrine.
Appellant Lorenzo Fuentes-Jimenez, a Cuban refugee, was being detained at the United States Penitentiary in Atlanta, Georgia pursuant to 8 U.S.C. § 1252(c) (1982)
awaiting deportation to Cuba.
On
July 14, 1982, Raul Oritz, the lieutenant in charge of the cellblock in which the appellant was housed, “E” house, was escorting a group of officials on a tour of “E” house. The appellant banged on his celldoor and screamed something in Spanish at the passing group. After the group left, Oritz sent the staff counselor in charge of “E” house, Robert E. Nance, to bring appellant down to his office to discuss appellant’s behavior. As instructed, Nance went to appellant’s cell. Following normal procedures he requested appellant to place his hands through the food slot of his cell so that he could be handcuffed before being taken out of the cell. When appellant refused, Nance called another officer for assistance. After the other officer arrived, Nance opened the celldoor but quickly shut it when appellant threatened in broken English, “I will kill you.” Nance also noticed that the appellant had what appeared to be a knife in his right hand. Nance then radioed for more assistance and asked that the officers bring him a body shield.
Two more officers, Webster and Henry, arrived shortly thereafter bringing a body shield with them. Nance again opened the celldoor, this time to allow appellant’s cellmate out. At that time, appellant was standing up by the beds, approximately six feet from the door.
After removing appellant’s cellmate from the cell, Nance returned for appellant. With the body shield in front of him Nance opened the celldoor and attempted to enter. He was forced back out of the cell, however, when appellant thrust the object in his hand at Nance. Nance attempted to enter the cell again, but by this time appellant had pushed the bunk bed in front of the celldoor, partially blocking Nance’s entry. As Nance attempted to get through the remaining opening, he was cut by appellant several times and forced back out of the cell. Finally, Nance dropped the body shield, entered the cell and, using the bed, pinned appellant against the back wall. Officers Henry and Webster then entered the cell and attempted to subdue appellant. Appellant swung out at Officer Henry and cut him on the hand. Henry and Webster both observed that appellant was holding a razor blade. Appellant then crawled under the bed and was eventually dragged out by the officers and handcuffed. Shortly after the incident Officer Robinson was sent to the cell and found a double-edged razor blade on the floor.
On May 23, 1983, the appellant was indicted on four counts. Counts one, two, and three charged appellant with violating 18 U.S.C. § 111 (1982) by assaulting Officers Nance, Henry, and Webster, respectively, while they were engaged in the performance of their official duties.
Count four alleged that appellant had violated 18 U.S.C. § 1792 (1982) by conveying from one place to another within the federal penitentiary where he was incarcerated a weapon designed to kill, injure and disable, to wit, a razor blade.
Appellant went to trial on July 20, 1983, and the jury found him guilty as charged on counts one and four of the indictment, guilty of the lesser included offense of simple assault on count two, and not guilty on count three.
The court sentenced appellant to three years in prison on counts one and four and three months in prison on count two.
The sentences in counts two and four were to run concurrently with that imposed for count one. Appellant now appeals his count four conviction under 18 U.S.C. § 1792 for conveying a weapon.
The concurrent sentence doctrine provides that, if a defendant is given concurrent sentences on several counts and the conviction on one count is found to be valid, an appellate court need not consider the validity of the convictions on the other counts.
Roviaro v. United States,
353 U.S. 53, 59 n. 6, 77 S.Ct. 623, 627 n. 6, 1 L.Ed.2d 639 (1957);
United States v. Evans,
572 F.2d 455, 476 (5th Cir.),
cert. denied,
439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978).
The doctrine, however, is not a jurisdictional bar to review, but a tool of judicial convenience, exercised at the court’s discretion.
Benton v. Maryland,
395 U.S. 784, 789-91, 89 S.Ct. 2056, 2060-61, 23 L.Ed.2d 707 (1969);
United States v. Wyatt,
611 F.2d 568, 569 n. 5 (5th Cir.1980);
United States v. Evans,
572 F.2d at 476. The doctrine should not be applied when “there is a significant likelihood that the defendants will suffer adverse collateral consequences from the unreviewed conviction.”
United States v. Rubin,
591 F.2d 278, 280 (5th Cir.),
cert. denied,
444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979).
In the instant case, we find that the record establishes no basis for believing that the appellant will suffer adverse collateral consequences if appellant’s section 1792 conviction is affirmed under the collateral sentence doctrine. The affirmance of this conviction will not affect appellant’s eligibility for parole.
See United States v. MacPherson,
664 F.2d 69, 74 n. 3 (5th Cir. Unit B 1981);
United States v. Rubin,
591 F.2d at 281-82. An examination of the guidelines the Parole Commission must apply,
see
18 U.S.C. § 4206 (1982), in setting appellant’s release date makes this clear. Under the guidelines, 28 C.F.R. § 2.20 (1983), the Commission must determine the length of time appellant will serve by looking to his “offense severity” rating accorded the crimes for which he was convicted, and his “salient factor” score. Appellant’s salient factor score, which is a compilation of his personal characteristics, would not be altered if his conviction were reversed here. Therefore, we need only concern ourselves with the question of whether our affirmance of appellant’s section 1792 conviction would increase the offense severity rating the Parole Commission will give the two convictions appellant has not appealed. The assault offenses for which appellant was convicted carry a severity rating of Category 6 (formerly “greatest I severity”) and require a minimum term of incarceration of forty months.
If we allow appellant’s conviction for the section 1792 offense to stand, his offense severity rating, for all offenses combined, will remain at Category 6. Thus, his release date could not be affected by this additional conviction. Because nothing in the record suggests that any other adverse collateral consequences would result from affirming appellant’s section 1792 conviction, we apply the concurrent sentence doctrine and affirm.
AFFIRMED.