UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 91-7364
United States of America,
Plaintiff-Appellee,
VERSUS
Ellis Jake Gross,
Defendant-Appellant.
Appeals from the United States District Court For the Northern District of Texas (December 9, 1992)
Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.
DeMoss, Circuit Judge:
The defendant pled guilty to bank robbery and making a false
statement to a firearm dealer. The district court sentenced the
defendant to 84 and 60 months respectively for the bank robbery and
the false statement, and ordered those sentences to run
concurrently for a total sentence of 84 months. The USDC, however,
ordered the sentences in the present case to run consecutively to
a prior undischarged 110-month sentence. Because we hold that the
court committed plain error in running the current sentences
consecutively to the prior sentence, we vacate these sentences and
remand for resentencing. I. FACTS and PROCEDURAL HISTORY
Jake Ellis Gross (Gross) committed two crimes in Fort Worth,
Texas. On February 18, 1988 Gross made a false statement to a
licensed firearm dealer and on October 30, 1989 he robbed the Blue
Bonnet Savings Bank. A few days later, Gross traveled to Chicago
where he robbed the Century State Bank. The FBI1 arrested him that
same day. Gross pled guilty to the Chicago bank robbery in the
United States District Court for the Northern District of Illinois
on July, 30, 1990 and the court gave him a 110-month sentence.
Immediately after that, Gross began serving his sentence at the
United States Penitentiary in Leavenworth, Kansas.
On August 8, 1991, the government filed a writ of habeas
corpus ad prosequendum requesting that Gross be brought from the
penitentiary in Leavenworth to stand trial in the United States
District Court for the Northern District of Texas (USDC) for the
two crimes that he had committed in Fort Worth. Gross was brought
to Texas where he pled guilty both to bank robbery in violation of
18 U.S.C. § 2113(a) and to making a false statement to a licensed
firearm dealer in violation of 18 U.S.C. § 922(a)(6). On November
15, 1991, the USDC gave Gross a sentence of 84 months for the bank
robbery and a concurrent sentence of 60 months for making the false
statement to a firearm dealer for an effective sentence of 84
months.2 The USDC, however, ordered the sentences in the present
1 Federal Bureau of Investigation. 2 The USDC also sentenced Gross to 3 years of supervised release.
2 case to run consecutively to the 110-month sentence that Gross was
serving for the Chicago bank robbery.3 Gross appeals the USDC's
decision to run consecutively his sentences in the present case to
his unexpired 110-month sentence.
II. DISCUSSION
1. Application of § 5G1.3 of the Guidelines
Gross contends that the USDC erred in applying an outdated
version of the guidelines and consequently ordering his sentences
to run consecutively. In sentencing Gross, the USDC applied §
5G1.3 of the guidelines; but did not notice that this guideline had
in fact been amended to be effective fifteen days before the USDC
sentenced Gross. As amended § 5G1.3(b) stated:
if the prior undischarged term of imprisonment resulted from a federal offense and was imposed pursuant to the Sentencing Reform Act, the sentence for the instant offense shall be imposed to result in a combined sentence equal to the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all the sentences been imposed at the same time.
Guidelines, § 5G1.3(b) (November 1, 1991).
Before its amendment, however, § 5G1.3 did not address whether
defendants in a case, such as the present case, were to have their
sentences run concurrently or consecutively.4 The commentary to §
3 This left Gross with an overall total sentence of 194 months (110 months for the Chicago bank robbery + 84 months for the two Fort Worth crimes). 4 Then, § 5G1.3 stated: [i]f the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status), the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment.
3 5G1.3, however, stated that the USDC had the discretion to order a
defendant's sentences in a case such as the present case to run
concurrently or consecutively. The commentary to § 5G1.3 stated:
[w]here the defendant is serving an unexpired term of imprisonment, but did not commit the instant offense while serving that term of imprisonment, the sentence for the instant offense may be imposed to run consecutively or concurrently with the unexpired term of imprisonment.
Commentary to Guidelines, § 5G1.3 (November 1, 1990).
Gross contends, and rightly so, that this court must apply the
version of the guidelines effective at the time of sentencing. See
18 U.S.C. § 3553(a)(4)5; United States v. Brown, 920 F.2d 1212,
1216 (5th Cir.), cert. denied, U.S. , 111 S.Ct. 2034, 114
L.Ed.2d 119 (1991) ("Baring any ex post facto concerns, a district
court must consider only the guidelines and policy statements that
are in effect on the date the defendant is sentenced, not on the
date the crime was committed."). Gross was sentenced November 15,
1991 and therefore the USDC should have applied to Gross the
Guidelines, § 5G1.3 (November 1, 1990). 5 18 U.S.C. § 3553(a)(4) states:
(a) [t]he court, in determining the particular sentence to be imposed, shall consider. . . (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . that are in effect on the date the defendant is sentenced; (5) any pertinent policy statement issued by the Sentencing Commission. . . that is in effect on the date the defendant is sentenced.
4 version of § 5G1.3 effective November 1, 1991. As noted, that
version of § 5G1.3 required that the court sentence Gross so that
his sentence would "result in a combined sentence equal to the
total punishment that would have been imposed under § 5G1.2 . . .
had all the sentences been imposed at the same time."6 The USDC
did not sentence Gross in that way, but instead erroneously applied
an outdated version of § 5G1.3 in ordering Gross's sentences to run
consecutively.
A. Applicability of 18 U.S.C. § 3584(a)
The government contends that the USDC sentenced Gross properly
because no matter the requirements of § 5G1.3, 18 U.S.C. § 3584(a)
gave the USDC the discretion to order Gross's sentences to run
consecutively. 18 U.S.C.
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 91-7364
United States of America,
Plaintiff-Appellee,
VERSUS
Ellis Jake Gross,
Defendant-Appellant.
Appeals from the United States District Court For the Northern District of Texas (December 9, 1992)
Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.
DeMoss, Circuit Judge:
The defendant pled guilty to bank robbery and making a false
statement to a firearm dealer. The district court sentenced the
defendant to 84 and 60 months respectively for the bank robbery and
the false statement, and ordered those sentences to run
concurrently for a total sentence of 84 months. The USDC, however,
ordered the sentences in the present case to run consecutively to
a prior undischarged 110-month sentence. Because we hold that the
court committed plain error in running the current sentences
consecutively to the prior sentence, we vacate these sentences and
remand for resentencing. I. FACTS and PROCEDURAL HISTORY
Jake Ellis Gross (Gross) committed two crimes in Fort Worth,
Texas. On February 18, 1988 Gross made a false statement to a
licensed firearm dealer and on October 30, 1989 he robbed the Blue
Bonnet Savings Bank. A few days later, Gross traveled to Chicago
where he robbed the Century State Bank. The FBI1 arrested him that
same day. Gross pled guilty to the Chicago bank robbery in the
United States District Court for the Northern District of Illinois
on July, 30, 1990 and the court gave him a 110-month sentence.
Immediately after that, Gross began serving his sentence at the
United States Penitentiary in Leavenworth, Kansas.
On August 8, 1991, the government filed a writ of habeas
corpus ad prosequendum requesting that Gross be brought from the
penitentiary in Leavenworth to stand trial in the United States
District Court for the Northern District of Texas (USDC) for the
two crimes that he had committed in Fort Worth. Gross was brought
to Texas where he pled guilty both to bank robbery in violation of
18 U.S.C. § 2113(a) and to making a false statement to a licensed
firearm dealer in violation of 18 U.S.C. § 922(a)(6). On November
15, 1991, the USDC gave Gross a sentence of 84 months for the bank
robbery and a concurrent sentence of 60 months for making the false
statement to a firearm dealer for an effective sentence of 84
months.2 The USDC, however, ordered the sentences in the present
1 Federal Bureau of Investigation. 2 The USDC also sentenced Gross to 3 years of supervised release.
2 case to run consecutively to the 110-month sentence that Gross was
serving for the Chicago bank robbery.3 Gross appeals the USDC's
decision to run consecutively his sentences in the present case to
his unexpired 110-month sentence.
II. DISCUSSION
1. Application of § 5G1.3 of the Guidelines
Gross contends that the USDC erred in applying an outdated
version of the guidelines and consequently ordering his sentences
to run consecutively. In sentencing Gross, the USDC applied §
5G1.3 of the guidelines; but did not notice that this guideline had
in fact been amended to be effective fifteen days before the USDC
sentenced Gross. As amended § 5G1.3(b) stated:
if the prior undischarged term of imprisonment resulted from a federal offense and was imposed pursuant to the Sentencing Reform Act, the sentence for the instant offense shall be imposed to result in a combined sentence equal to the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all the sentences been imposed at the same time.
Guidelines, § 5G1.3(b) (November 1, 1991).
Before its amendment, however, § 5G1.3 did not address whether
defendants in a case, such as the present case, were to have their
sentences run concurrently or consecutively.4 The commentary to §
3 This left Gross with an overall total sentence of 194 months (110 months for the Chicago bank robbery + 84 months for the two Fort Worth crimes). 4 Then, § 5G1.3 stated: [i]f the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status), the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment.
3 5G1.3, however, stated that the USDC had the discretion to order a
defendant's sentences in a case such as the present case to run
concurrently or consecutively. The commentary to § 5G1.3 stated:
[w]here the defendant is serving an unexpired term of imprisonment, but did not commit the instant offense while serving that term of imprisonment, the sentence for the instant offense may be imposed to run consecutively or concurrently with the unexpired term of imprisonment.
Commentary to Guidelines, § 5G1.3 (November 1, 1990).
Gross contends, and rightly so, that this court must apply the
version of the guidelines effective at the time of sentencing. See
18 U.S.C. § 3553(a)(4)5; United States v. Brown, 920 F.2d 1212,
1216 (5th Cir.), cert. denied, U.S. , 111 S.Ct. 2034, 114
L.Ed.2d 119 (1991) ("Baring any ex post facto concerns, a district
court must consider only the guidelines and policy statements that
are in effect on the date the defendant is sentenced, not on the
date the crime was committed."). Gross was sentenced November 15,
1991 and therefore the USDC should have applied to Gross the
Guidelines, § 5G1.3 (November 1, 1990). 5 18 U.S.C. § 3553(a)(4) states:
(a) [t]he court, in determining the particular sentence to be imposed, shall consider. . . (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . that are in effect on the date the defendant is sentenced; (5) any pertinent policy statement issued by the Sentencing Commission. . . that is in effect on the date the defendant is sentenced.
4 version of § 5G1.3 effective November 1, 1991. As noted, that
version of § 5G1.3 required that the court sentence Gross so that
his sentence would "result in a combined sentence equal to the
total punishment that would have been imposed under § 5G1.2 . . .
had all the sentences been imposed at the same time."6 The USDC
did not sentence Gross in that way, but instead erroneously applied
an outdated version of § 5G1.3 in ordering Gross's sentences to run
consecutively.
A. Applicability of 18 U.S.C. § 3584(a)
The government contends that the USDC sentenced Gross properly
because no matter the requirements of § 5G1.3, 18 U.S.C. § 3584(a)
gave the USDC the discretion to order Gross's sentences to run
consecutively. 18 U.S.C. § 3584(a) states that "[i]f multiple
terms of imprisonment are imposed on a defendant at the same time,
or if a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms
may run consecutively or concurrently. . . ." According to the
government, 18 U.S.C. § 3584(a) gave the USDC the discretion to
order Gross's sentences to run consecutively, and the requirements
of § 5G1.3 of the guidelines could not impede that discretion.
In United States v. Miller, 903 F.2d 341 (5th Cir. 1990), this
court addressed the apparent tension between § 5G1.3 and 18 U.S.C.
6 We find and the government concedes that Gross fit within the criteria of § 5G1.3(b)--(1) he was serving a prior undischarged term of imprisonment imposed under the guidelines for the federal offense of bank robbery, and (2) § 5G1.3(a) did not apply because he committed the present offense (i) before he was sentenced and (ii) before he began serving his sentence for the Chicago bank robbery.
5 § 3584(a), although under a different version of the guidelines.
In Miller, the defendant, who had previously been convicted and was
then serving a sentence for bank robbery in Arizona, pled guilty in
Texas to six additional bank robberies. At sentencing, the court
ordered the defendant's sentence for the six bank robberies to run
consecutively to his undischarged sentence for the prior Arizona
bank robbery. On appeal, the defendant contended that the court
erred in ordering his sentences to run consecutively because §
5G1.3's apparent obligation on the court to impose consecutive
sentences could not be valid considering the discretion to impose
consecutive or concurrent sentences vested in the court by 18
U.S.C. § 3584(a). Then, the effective version of § 5G1.3 stated:
[i]f at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences.
This court rejected the defendant's contention, holding that §
5G1.3 was a proper restraint on the discretion in 18 U.S.C. §
3584(a) because under § 5G1.3 the court retained some discretion in
its power to depart from the guidelines.
This court's holding in Miller applies with equal force to
the present case. In the present case, just as in Miller, the USDC
had the discretion to depart from the guidelines with the only
distinction being that in Miller the issue was the ability of the
USDC to depart downward, whereas in the present case the issue is
the ability of the USDC to depart upward. For our purposes that
6 distinction is not meaningful and therefore we hold that the grant
of discretion in 18 U.S.C. § 3584(a), as applied to the
requirements of the effective version of § 5G1.3, can only be
exercised through the vehicle of departure from the guidelines.
Put another way, § 5G1.3(b)'s requirement that Gross's sentence
"shall be imposed to result in a combined sentence equal to the
total punishment that would have been imposed . . . had all the
sentences been imposed at the same time" was curtailed only by the
discretion of the USDC to depart from the guidelines. In the
present case, both parties agree and it is evident from the record
that the USDC did not depart upward from the guidelines, and thus
the USDC erred in ordering Gross's sentences to run consecutively.
B. Plain Error
Even if the USDC erred in applying an outdated version of the
guidelines, the government contends that this court should not
vacate the sentence and remand for sentencing because Gross did not
object to the presentence report or the USDC's order at the
sentencing hearing that his sentences run consecutively.7 If a
defendant fails to object to his sentence, this court will reverse
his sentence only upon a finding of plain error. United States v.
Ebertowski, 896 F.2d 906 (5th Cir. 1990). "To constitute plain
error, the error must have been so fundamental as to have resulted
in a miscarriage of justice." Ebertowski, at 907 (quoting United
7 Gross concedes that he did not object to his sentence, however, he points out that he submitted to the USDC a memorandum in aid of sentencing that asserted that his sentences should run concurrently.
7 States v. Yamin, 868 F.2d 130, 132 (5th Cir.), cert. denied, 492
U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). This court cannot
review issues raised for the first time on appeal unless they
involve purely legal questions and our failure to consider them
would result in manifest injustice. United States v. Garcia-
Pillado, 898 F.2d 36, 39 (5th Cir. 1990).
As demanding as the burden required of Gross under the plain
error standard is, we are convinced that the USDC's error in
incorrectly applying the guidelines was sufficient to meet that
standard. In sentencing Gross, the USDC applied an outdated
version of the guidelines that resulted in Gross receiving a
substantially longer sentence than he would have if the USDC had
used the version of the guidelines then applicable.8 Application
of the guidelines by the USDC is a question of law and undoubtedly,
in the present case, the mistake of law committed by the USDC in
applying an outdated version of the guidelines resulted in manifest
injustice. Therefore, we reject the government's contention that
we should not vacate Gross's sentence and remand for resentencing
because we hold that the USDC committed plain error in ordering
Gross's sentences to run consecutively.
8 Gross contends that if the USDC had sentenced him according to the 1991 version of § 5G1.3(b), and consequently under § 5G1.2 (Sentencing on Multiple Counts of Conviction), he would have had an offense level of 27 with a criminal history category of V and received a sentence of 120-150 months. That figure is based on an offense level of 25 contained in the presentence report prepared for the Chicago bank robbery plus a two level increase pursuant to § 3D1.4.
8 Additionally, we acknowledge that § 5G1.3 has been again
amended to be effective on November 1, 1992 so that when Gross is
resentenced the 1992 version of § 5G1.3 will be in effect. In the
1992 version of § 5G1.3, subsection (b) has been deleted.
Subsection (c), however, has not been changed and states that "the
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 offense." Subsection (c) of the 1992 version would
control Gross's resentencing on remand; but the application thereof
could result in an increase in Gross's sentence.9 Gross should not
be prejudiced by the USDC's error in incorrectly applying the then
applicable guidelines at sentencing. Because Gross's sentence
could be increased under the amended version of § 5G1.3, we
instruct the USDC on remand to resentence Gross under the 1991
version of § 5G1.3.
9 We realize that the commentary to the 1992 version § 5G1.3(c) states "[t]o the extent practicable, the court should consider a reasonable incremental penalty to be a sentence for the instant offense that results in a combined sentence of imprisonment that approximates the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all of the offenses been federal offenses for which sentences were being imposed at the same time." It is possible therefore that on remand Gross would receive the same sentence whether the 1991 or the 1992 version of § 5G1.3 were applied. However, because there is also a possibility that Gross could receive an increase in his sentence as a result of applying the 1992 version, we order the USDC to resentence Gross in accordance with the 1991 version of § 5G1.3.
9 III. CONCLUSION
For the reasons stated above, the sentence of the USDC is
VACATED and the case is REMANDED with orders for the USDC to
resentence the defendant according to the 1991 version of § 5G1.3
of the guidelines.
c:br:opin:91-7364:mm 10