United States v. Parkinson

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 94-1229

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                KEITH JAMES PARKINSON,

                                Defendant - Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

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

                                        Before

                            Cyr and Stahl, Circuit Judges,
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                             and Zobel,* District Judge.
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               Christopher W.  Dilworth, by  Appointment of the  Court, for
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          appellant.
               Michael M.  DuBose, Assistant  United States Attorney,  with
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          whom Jay P.  McCloskey, United States Attorney, Paula  D. Silsby,
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          Assistant  United States  Attorney,  and  Margaret D.  McGaughey,
                                                    ______________________
          Assistant United States Attorney, were on brief for appellee.

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                                  December 29, 1994
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          *  Of the District of Massachusetts, sitting by designation.



ZOBEL,  District Judge.    Keith  Parkinson once  again
                    ZOBEL,  District Judge
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          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
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          v. Parkinson, No. 91-2233,  1993 WL 89801, at  *6 (1st Cir.  Mar.
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          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

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          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
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                    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.
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          Thompson, 32  F.3d 1, 4  (1st Cir.  1994).  The  district court's
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          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).
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          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?
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                    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,
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          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.
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          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
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          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?
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                    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
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          States v.  Qui ones, 26 F.3d 213, 217 (1st Cir. 1994); second, do
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          the  relied-upon  factual  circumstances  actually  exist, United
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          States v.  Rivera, 994 F.2d 942, 950  (1st Cir. 1993); and third,
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          is  the  departure reasonable,  Jackson, 30  F.3d  202 n.3.   See
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          generally United States  v. D az-Villafa e, 874 F.2d  43, 49 (1st
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          Cir.),  cert. denied 493 U.S. 862 (1989).  Because defendant does
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          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.
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                    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
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          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,
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          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.
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                    Finally,  Parkinson  challenges  the  adequacy  of  the

          district  court's  documentation of  the  factual  basis for  the
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          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
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          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
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                    For the reasons stated above, the sentence is affirmed.
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