United States v. Scott ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 23 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Case No. 97-3025
v.
(D.C. 93-CV-3436)
DALLAS EARL SCOTT, (District of Kansas)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Pro se defendant-appellant Dallas Earl Scott appeals the district court’s denial of
his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Also before the
court is Mr. Scott’s application for a certificate of appealability. We deny Mr. Scott a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
certificate of appealability, and dismiss the appeal.1
Mr. Scott is a federal prisoner serving multiple consecutive sentences including an
18-year sentence for robbing a federally insured institution with a handgun, which was
discharged during the offense, and a 5-year sentence for felon in possession of a firearm.
In 1988, while in Leavenworth Federal Penitentiary serving these two sentences, Mr.
Scott was charged and convicted in a 15-count indictment for conspiracy to distribute
heroin into a federal penitentiary and 14 counts of using a facility of interstate commerce,
i.e., a telephone, in committing the offense. Mr. Scott was then sentenced to a term of
210 months on the first count and 48 months on each of the other 14 counts, all to be
served concurrently. The court also ordered that Mr. Scott’s sentence for these offenses
would run consecutively to his two previous sentences.
In his § 2255 motion, Mr. Scott argues that he should be resentenced with regard
to his 15-count conviction because the sentencing judge mistakenly believed that he was
not authorized to sentence him to a concurrent sentence and that the judge failed to set
1
Generally, we may not consider issues in a § 2255 motion that should have
been raised on direct appeal absent a showing of cause for the default and prejudice
therefrom, or that manifest injustice will result if the claim is barred. See United States v.
Cook, 45 F.3d 388, 392 (10th Cir. 1995). In the present case, however, the government
did not raise procedural bar, and the district court proceeded directly to the merits of Mr.
Scott’s motion. Thus, the issue has been waived. See United States v. Hall, 843 F.2d
408, 410 (10th Cir. 1988). Although we have the authority to raise this issue sua sponte if
the record supports such a determination, see Hines v. United States, 971 F.2d 506, 509
(10th Cir. 1992), we need not do so here because, even assuming that Mr. Scott’s motion
is not procedurally barred, his claims fail on their merits.
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forth the methodology contained in the commentary to Sentencing Guideline § 5G1.3(c)
with regard to determining whether a concurrent sentence was appropriate. The district
court--speaking through the same judge who sentenced Mr. Scott on the 15-count
conviction--denied Mr. Scott’s motion.
In reviewing the denial of a § 2255 motion, we review the district court’s legal
rulings de novo, and its findings of fact for clear error. United States v. Cox, 83 F.3d
336, 338 (10th Cir. 1996). As the district court pointed out, at the time Mr. Scott was
sentenced there was a disparity in the language of the Sentencing Guidelines and the
United States Code concerning whether a prisoner who commits an offense should be
sentenced to concurrent or consecutive terms of imprisonment. Compare U.S. Sentencing
Guidelines Manual § 5G1.3 (1989) (“If the instant offense was committed while the
defendant was serving a term of imprisonment, . . . the sentence for the instant offense
shall be imposed to run consecutively to the unexpired term of imprisonment.”), with 18
U.S.C. § 3584(a) (1984) (“if a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms may run concurrently
or consecutively”). In 1991, we harmonized this disparity in holding that, “when an
offense is committed during the term of a previously imposed sentence, the new sentence
must run consecutively to the old unless the court determines that Guideline departure is
appropriate.” United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir. 1991).
Mr. Scott first argues that he should be resentenced because the judge erroneously
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interpreted the applicable law as limiting the judge’s authority to sentence Mr. Scott to
anything other than consecutive terms. Specifically, Mr. Scott refers to the following
exchange which occurred during sentencing:
Defendant Scott: Your Honor, is this term to run concurrent with the
term I am serving now?
The Court: I think that it will be served consecutively to any term
you’re serving now.
Defendant Scott: Isn’t it up to the Court to stipulate --
The Court: Not under the guidelines, and I would not choose to --
Defendant Scott: Who would determine that?
The Court: The Bureau of [P]risons.
Supl. Rec. vol. I, doc. 155 at 3 (Government’s response to defendant’s 2255 motion dated
Dec. 2, 1996).
This court has held that we will remand a sentencing judge’s discretionary decision
to impose consecutive or concurrent terms of imprisonment for resentencing “only where
‘the judge’s language unambiguously states that [he] does not believe he has authority’ to
sentence concurrently.” United States v. Mihaly, 67 F.3d 894, 897 (10th Cir. 1995)
(quoting United States v. Rodriguez, 30 F.3d 1318, 1319 (10th Cir. 1994)), cert. denied,
117 S. Ct. 374 (1996). While we conclude that the sentencing judge in this instance did
not “unambiguously” state that he did not have discretion to sentence Mr. Scott to
concurrent terms, even assuming that such language was “ambiguous”, we hold that the
district judge reviewing Mr. Scott’s § 2255 motion adequately clarified this language by
elaborating on what he meant when he originally sentenced Mr. Scott.
Relying on our holding in United States v. Fox, 930 F.2d 820, 824 (10th Cir.
4
1991), where we remanded an ambiguous statement to a sentencing judge for
clarification, the district judge here revisited his original statement at Mr. Scott’s
sentencing and set forth in more detail what he intended to say before Mr. Scott
interrupted him. The district judge added the following to his original statement:
Not under the guidelines, and I would not chose to impose concurrent
sentences in this case even if I had the authority to do so. After considering
the various sentencing factors such as the nature and circumstances of the
offense and the history and characteristics of the defendant, the court simply
believes that concurrent sentences would be inappropriate in this case.
Rec. vol. I, doc. 158 at 5 (Dist. Ct. Order at 5) (supplemental remarks underlined).
Given this clarification by the district judge, who was in the unique position of
having served as the sentencing judge, we conclude that any ambiguity in the sentencing
statement was resolved such that it is clear that the judge understood that he had
discretion to sentence Mr. Scott to concurrent terms but chose not to do so in this
instance. Accordingly, we find no reason to remand this case for resentencing.
Mr. Scott’s second argument is that the sentencing judge erred in failing to follow
the methodology set forth in the commentary to Sentencing Guidelines § 5G1.3(c) in
determining whether to sentence him to a concurrent or consecutive term. This argument
fails for two principal reasons. First, the methodology set forth in the commentary to §
5G1.3(c) provides that these factors are only to be considered in cases not covered under
§ 5G1.3(a) or (b). See U.S. Sentencing Guidelines Manual § 5G1.3, commentary n. 3
(1995). Because Mr. Scott was serving a prison term at the time of his sentencing and is
5
therefore covered under subsection (a), the factors contained in the commentary to
subsection (c) do not apply. Second, and more importantly, the methodology set forth
under § 5G1.3(c) did not exist at the time Mr. Scott was sentenced and therefore could not
have been applied by the sentencing judge. See U.S. Sentencing Guidelines Manual §
5G1.3 (1989). Here, the district judge adequately explained after the fact that “the nature
and circumstances of the offense and the history and characteristics of the defendant” did
not warrant concurrent sentences. Rec. vol. I, doc. 158 at 5 (Dist. Ct. Order at 5). We
hold that this reasoning was adequate. See Mihaly, 67 F.3d at 896 (“We do not ordinarily
require a district court imposing consecutive sentences to make a finding that a departure
is inappropriate.”).
For the foregoing reasons, we DENY Mr. Scott’s application for a certificate of
appealability and DISMISS this appeal. The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
6