United States v. Vasquez-Rubio

68 F. App'x 235

• Court: Court of Appeals for the Second Circuit
• Decided: June 24, 2003
• Docket: Docket No. 02-1607
• Status: Published

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

Defendant Maynor Vasquez-Rubio appeals from a judgment of conviction and sentence imposed in the United States District Court for the Northern District of New York (Mordue, /.) based on his guilty plea to illegally reentering the Umted States in violation of 8 U.S.C. § 1326. After Vasquez-Rubio was sentenced to a 70-month prison term, to run consecutively to an undischarged sentence based on the violation of his state parole for a drug conviction, he filed a habeas petition, arguing (inter alia) that the district court was required, pursuant to U.S. Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) § 5G1.3(b), to make the federal and state sentences run concurrently. The petition was granted, but Vasquez-Rubio received the same (consecutive) sentence at his re-sentencing. He argues on appeal that the district court abused its discretion in failing to impose the concurrent sentence he argued for in his habeas petition.¹

U.S.S.G. § 5G1.3 governs whether a defendant, who like Vasquez-Rubio is subject to an undischarged term of imprisonment for another offense, should be given a concurrent sentence, a consecutive sentence, or some combination thereof. Subsection (a) requires imposition of a consecutive sentence if the instant offence was committed after sentencing for the other offense; subsection (b) requires imposition of a concurrent sentence if the other offense has been “fully taken into account” in the determination of the offense level for the instant offense; in all other cases, subsection (c) grants discretion to impose a sentence that runs concurrently, partially concurrently, or consecutively to achieve a reasonable punishment. See U.S.S.G. § 5G1.3.

This case is controlled by United States v. Garcia-Hernandez, 237 F.3d 105 (2d Cir.2000), which Vasquez-Rubio concedes is “precisely the same as the present case” and which presents an “issue [that] is identical.” In that case, we held that the district court had discretion, pursuant to U.S.S.G. § 5G1.3(c), to impose either a consecutive or a concurrent sentence on a defendant convicted of illegally reentering the United States with an undischarged sentence for a parole violation triggered by the illegal reentry. Id. at 110. We reasoned that the state sentence was not necessarily “fully taken into account” by the defendant’s offense level, so U.S.S.G. § 5G1.3(b) did not apply. See id. Vasquez-Rubio asks us to “revisit” Garcia-Hernandez, but offers no persuasive reason for doing so, and we see none. See Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.1995) (“A decision of a panel of this Court is binding unless and until it is overruled by the Court en banc or by the Supreme Court.”); cf. United States v. Los Santos, 283 F.3d 422, 426 (2d Cir.2002) (following Garcia-Hernandez); United States v. Fermin, 252 F.3d 102, 108-109 (2d Cir.2001) (same).

For the reasons set forth above, the judgment of the district court is AFFIRMED.

1 . The government contends that Vasquez-Ru-bio waived the argument he raises on appeal, since at the resentencing hearing he argued that the district court had discretion to impose a consecutive or concurrent sentence. We assume arguendo that the argument presented on appeal was adequately raised by Vasquez Rubio in his habeas petition underlying the resentencing.