United States v. Peter Lagatta Billy Caroleo Michael Bitz Dennis Merckling Alex Sharogordsky Joseph Campo and Joe Lnu, Steven B. Zackson

50 F.3d 125, 1995 U.S. App. LEXIS 4731, 1995 WL 109552
CourtCourt of Appeals for the Second Circuit
DecidedMarch 9, 1995
Docket351, Docket 94-1088
StatusPublished
Cited by17 cases

This text of 50 F.3d 125 (United States v. Peter Lagatta Billy Caroleo Michael Bitz Dennis Merckling Alex Sharogordsky Joseph Campo and Joe Lnu, Steven B. Zackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Peter Lagatta Billy Caroleo Michael Bitz Dennis Merckling Alex Sharogordsky Joseph Campo and Joe Lnu, Steven B. Zackson, 50 F.3d 125, 1995 U.S. App. LEXIS 4731, 1995 WL 109552 (2d Cir. 1995).

Opinion

ALTIMARI, Circuit Judge:

Defendant-appellant Steven B. Zackson appeals from a judgment entered after a jury trial in the United States District Court for the Eastern District of New York (Nicker-son, convicting him of two counts of conspiracy to obstruct, delay, and affect commerce and the movement of articles and commodities in commerce by robbery and by means of actual and threatened force in violation of 18 U.S.C. § 1951; one count of conspiracy to transport, possess, and sell stolen merchandise in interstate commerce in violation of 18 U.S.C. § 371; one count of transportation of stolen merchandise in interstate commerce in violation of 18 U.S.C. § 2314; and one count of possession and sale of stolen merchandise in interstate commerce in violation of 18 U.S.C. § 2315. The district court sentenced Zackson to a term of 21 months’ imprisonment on each of the five counts and ordered that the term on each count run concurrently with each other and run consecutively to a previously imposed, yet undischarged sentence of 121 months’ imprisonment on a federal narcotics conviction, followed by a three-year term of supervised release, and a $250 special assessment.

On appeal, Zackson challenges his sentence. Zackson contends principally that the district court’s sentence, mandating that the term of imprisonment run consecutively, rather than concurrently, to a prior undischarged term of imprisonment, was imposed in violation of law and as a result of an incorrect application of the 1993 version of the Sentencing Guidelines.

Finding no merit in his contentions, we affirm the district court’s judgment for the reasons set forth below.

BACKGROUND

Zackson was charged in a five-count superseding indictment with armed robbery. On April 2,1993, a jury found Zackson guilty of committing the armed robbery of six tractor trailer trucks containing women’s garments from the Sea Jet Trucking Company (“Sea Jet”) in Brooklyn, New York. According to the Presentence Investigation (“PSI”) report, Zackson’s role in the robbery was to transport the truck drivers to the Sea Jet facility, and to assist in the offloading of the stolen merchandise into unregistered containers at a New Jersey warehouse.

The PSI report and Addendum prepared by the Probation Department on the five counts of conviction for Zackson recommended a total offense level under the Sentencing Guidelines of 29, which included a five-level enhancement for the discharge of a firearm. After considering Zackson’s criminal history category of II, the PSI report recommended a sentencing range of 97 to 121 months’ imprisonment.

At the sentencing hearing on February 4, 1994, the district court departed on each count from the recommended total offense level to a level 16 and sentenced Zackson to a term of 21 months’ imprisonment on each of the five counts of conviction. The district court ordered that the terms run concurrently with each other and consecutively to the unexpired portion of a previously imposed sentence of 121 months’ incarceration on a federal narcotics conviction. At the time of sentencing for the instant offense, the unexpired term of Zackson’s narcotics sentence was 84 months.

During sentencing for the instant offense, Zackson maintained that U.S.S.G. § 5G1.3(c), comment, (n. 3) mandated that he receive a sentence concurrent to the undischarged 121 month prison term. Specifically, Zackson argued that his adjusted offense level was 18, and that under the multi-count analysis approach described in the commentary to U.S.S.G. § 5G1.3(e), a concurrent sentence was mandated because it would result in a reasonable incremental punishment.

After reviewing the cited material, the district court disagreed, indicating that it was not divested of discretion to impose a concurrent or consecutive sentence by U.S.S.G. § 5G1.3(c), comment, (n. 3), which describes a method that the court should “consider” in determining a reasonable incremental punishment. Moreover, the district court rejected Zackson’s adjusted offense level calculation of 18, stating that it would find, “if [it] *127 had to,” an adjusted offense level of 29. Finally, the district court articulated why it imposed the sentence to run consecutively, rather than concurrently:

The reason I think that there has to be some additional sentence for this crime is in a sense, otherwise there’s a free ride on it.... [I]t seems to me there ought to be once you’ve committed a crime, know you’ve committed a crime, that this — and you commit another almost equally serious crime, maybe equally serious, that there should be some incremental punishment. So the total punishment for Mr. Zackson— on the two crimes — will be 142 months. Now the sentence in this case will be on each count. I’m departing — on each count, 21 months, to run ... concurrently, but consecutively to the sentence in the drug case, which is CR-90-292(S).

Zackson now appeals solely to challenge the propriety of his sentence.

DISCUSSION

On appeal, Zackson contests the imposition of a consecutive sentence. He argues that because the district court failed to (1) employ the proper analysis pursuant to U.S.S.G. § 5G1.3(c), comment, (n. 3) and (2) explain its reasons for departing from that analysis, the sentence was imposed in violation of law and as a result of an incorrect application of the Sentencing Guidelines. Zackson’s argument is without merit.

In considering Zackson’s challenge to his sentence, we review the district court’s legal interpretation of the Sentencing Guidelines de novo and the district court’s findings of fact for clear error. See United States v. Deutsch, 987 F.2d 878, 884-85 (2d Cir.1993) (citations omitted).

Section 5G1.3 of the Sentencing Guidelines, entitled “Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment,” addresses whether sentences for defendants should run concurrently or consecutively to their unexpired terms of incarceration. In the case before us, it is undisputed that the applicable provision is U.S.S.G. § 5G1.3(c), which provides in relevant part:

(c) (Policy Statement) ... [T]he 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 of-fence. (emphasis added).

Application Note 3 of the commentary to U.S.S.G. § 5G1.3(e) interprets this policy statement, stating in pertinent part that:

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.

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50 F.3d 125, 1995 U.S. App. LEXIS 4731, 1995 WL 109552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-peter-lagatta-billy-caroleo-michael-bitz-dennis-merckling-ca2-1995.