United States v. Magluta , 198 F.3d 1265 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 98-4023, 98-4024
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D. C. Docket Nos. 96-341-CR-JAL
97-102-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR MAGLUTA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(December 23, 1999)
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
RICHARD MILLS, Senior District Judge:
Magluta appeals from his conviction and sentence imposed in two separate
cases: the “false identification case” and the “bond jumping case.”
*
Honorable Richard Mills, Senior U.S. District Judge for the Central District
of Illinois, sitting by designation.
Mainly, he seeks review of the district court’s denial of his motion to suppress
evidence and the sentences he received.
We affirm in part, vacate in part, and remand for re-sentencing.
I. BACKGROUND
A. False identification case
Before his incarceration, Magluta was a wanted man. At the time of his arrest
on October 15, 1991, Magluta had four outstanding arrest warrants from several
jurisdictions: one from the State of Florida for 1979 cocaine trafficking charges; one
from the State of California for 1985 drug trafficking charges; one from the Middle
District of Florida for a currency structuring conspiracy charge; and one from the
Southern District of Florida for various narcotic offenses.
Based on the four outstanding warrants, the United States Marshal’s Service
Fugitive Unit conducted a search for Magluta and eventually located him through a
confidential informant. The law enforcement officials determined that Magluta was
at a house located at 98 East LaGorce Circle in Miami Beach, Florida (“LaGorce
residence”) and that he had rented the premises since August 1, 1987 using the name
“Santiago Menendez.” On October 15, 1991, at about 6:30 p.m., several federal and
state law enforcement officials arrested Magluta in the bushes of a neighbor’s house.
Law enforcement officials also arrested another suspect in the LaGorce residence, and
2
conducted a security sweep of the residence.
That evening, Special Agent David Borah of the Drug Enforcement
Administration (“DEA”) swore to an affidavit and obtained a search warrant for the
LaGorce residence. The warrant affidavit contained Agent Borah’s sworn statement
that: 1) several witnesses, including a neighbor, verified that Magluta lived at the
LaGorce residence; 2) that during a security sweep of the premises, law enforcement
officers observed “black gym bags inside the closet that were covered up by blankets;”
3) that the officers also observed a safe, numerous papers, and a “large amount of
cash” in plain view of a bedroom closet in the guest house;1 4) that Borah had been
investigating Magluta since 1986, and that as a result of his investigations, Magluta
was indicted in 1991 for violating federal drug laws; 5) that Agent Borah has received
information from confidential informants regarding Magluta’s drug and money
laundering activities since 1986.
The magistrate judge found that there was probable cause to believe that
Magluta was involved in drug trafficking activities, and approved the search warrant.2
As a result of the search, agents seized various documents, $349,000 worth of jewelry,
1
Agent Borah swore that based upon his experience as a member of the
DEA, such items were commonly possessed by drug traffickers.
2
After a separate trial on the drug charges, a jury acquitted Magluta.
3
six cellular phones, two fax machines, a money counter, $126,002 in cash, and
newspaper articles and documents relating to pending court proceedings against
Magluta. Agents also seized various identification documents with Magluta’s picture,
but with different names. The documents seized were as follows: Florida driver’s
licenses in the names of “Samuel Martinez,” “Luis Alberto Chang,” “Angelo
Rosario,” and “Christian David Galeano;” New Jersey driver’s licenses in the names
of “Manuel Martinez” and “Christian D. Galiano;” a California driver’s license in the
name of “Michael Santini;” a United States passport in the name of “Samuel
Martinez;” a Venezuelan passport in the name of “Manuel Martinez;” a Panamanian
passport in the name of “Luis Alberto Chang Acosta;” two counterfeit INS forms I-94
in the names of “Manuel A. Martinez” and “Luis Alberto Chang Acosta;” and Social
Security cards and Dade County voter registration cards in the names of “Samuel
Martinez,” “Christian David Galeano,” and “Michael Santini.” Agents also seized
bank records for four foreign bank accounts opened with various aliases, documents
relating to Magluta’s rental of various properties, and other receipts.3
On August 2, 1996, a grand jury returned a ten count indictment against
3
The receipts were for money spent at Nevada casinos between 1985
through 1991 which totaled approximately $200,000.00, a stay at New York’s St.
Regis hotel in October 1991 which totaled $7,000.00, and a ski trip to Aspen,
Colorado in November 1989 which totaled $9,400.00.
4
Salvador Magluta:
Count I charged Magluta with making a false statement in an application for a
passport, in violation of 18 U.S.C. § 1542 and § 2;
Count II charged that Magluta intentionally procured and obtained documentary
evidence of U.S. naturalization and citizenship in violation of 18 U.S.C. § 1425(b);
Count III charged that Magluta unlawfully possessed a Venezuelan passport
purportedly issued to “Manuel A. Perez,” which contained a photograph of Magluta,
in violation of 18 U.S.C. § 1546;
Count IV charged that he unlawfully possessed a Panamanian passport with the
name “Luis Alberto Chang,” which contained a photograph of Magluta, in violation
of 18 U.S.C. § 1546;
Count V charged that he obtained a Florida Driver’s license through the use of
his “Luis Alberto Chang” passport in violation of 18 U.S.C. § 1544;
Counts VI and VII charged him with possession with intent to use unlawfully
five or more false identification documents, in violation of 18 U.S.C. § 1028(a)(3);
Counts VIII, IX, and X charged Magluta with furnishing false information on
an application for a Social Security card, in violation of 42 U.S.C. § 408(a)(6).
A jury convicted Magluta on all ten counts.
B. Bond jumping case
5
On February 6, 1997, during the course of his false identifications trial, Magluta
left the courthouse and asked the court security officer to tell Magluta’s attorney that
he had left to get something from the car. Magluta, however, did not return for the
remainder of the trial.
Over two months later, federal marshals arrested Magluta in West Palm Beach,
Florida.4 Magluta eventually pleaded guilty to failure to appear before the district
court during his trial -- a violation of 18 U.S.C. § 3146.
C. Sentencing hearing
The district court held a combined six-day sentencing hearing for both cases.
In the false identification case, the parties agreed that the ten counts should be grouped
together pursuant to U.S.S.G. § 3D1.2(b) (1990). Out of the three possible sections
that the district court could have applied under § 3D1.3 in determining the base
offense level, the district court applied §2F1.1 (provision for fraud or deceit) to the
4
At the time of his arrest, Magluta was driving a car that was rented to
“Carlos Guerra.” Moreover, he had changed his appearance by shaving his head
and wearing a wig. He possessed a bag containing $20,000.00 in cash, several
identification documents in the name of “Juan Alfonso,” and a notepad containing
various notes, including, but not limited to: instructions to his son regarding grand
jury testimony; a list of “[p]eople I need to have access with;” a note stating
“[r]edo-do = all corporations & redistribute all shares;” and a note stating,
“FORFEITURES: Everybody put claimers on all the objects etc.” In addition, it
was later determined that he had been living in a suite at the Ritz-Carlton hotel
under the name of “Edward Cedras.”
6
counts and assigned a base offense level of six. The district court also imposed a two-
level increase for “violation of judicial . . . process” under §2F1.1(b)(3)(B) because
Magluta used false identification documents to avoid judicial process, and increased
the base offense level to 12 under §2F1.1(b)(5) for using a foreign bank account in the
offense. The district court found that, based on a base offense level of 12 and a
criminal history category of III, the relevant imprisonment range was 15 to 21 months.
The district court, however, imposed a six-level upper departure pursuant to
U.S.S.G. § 5K2.7, Application Note 9 to § 2F1.1 and § 5K2.9, for disrupting
governmental function, committing the offense to facilitate the commission of another
offense, and causing loss of confidence in an important institution, respectively. The
court also granted the government’s request for an upper departure of Magluta’s
criminal history category from III to VI, pursuant to § 4A1.3. As a result, the
adjustments yielded a sentencing range of 57-71 months, and the court sentenced
Magluta to 71 months imprisonment.
In the bond jumping case, the district court applied U.S.S.G. § 2J1.6(a)(2)
(1997) and set the base offense level at six. Holding that “the underlying offense”
carried a possible term of imprisonment for over 15 years, the court then increased the
offense level by nine pursuant to § 2J1.6(b)(2)(A). The court then added two-levels
for obstruction of justice under § 3C1.1 based on the documents Magluta possessed
7
at the time of his arrest regarding his assets and corporate entities as well as the
fraudulent identifications he possessed and used while he was a fugitive. The court
then gave a three-level reduction for acceptance of responsibility under § 3E1.1. With
regard to Magluta’s criminal history category, the court departed upward to criminal
history category of V based on the risk of recidivism. Accordingly, based on a base
offense level of 14 and a criminal history category of V, the court found the relevant
sentencing range to be 33-41 months. The court sentenced Magluta to 41 months.
In both cases, the district court sentenced Magluta to three years supervised
release, and that the respective sentences and supervised release were to be served
consecutively.
II. ISSUES
The issues raised in this appeal are whether:
1. Magluta’s conviction in the false identification case should be reversed because
the search warrant affidavit that justified the search of Magluta’s LaGorce
residence was facially insufficient to support a finding of probable cause;
2. In the false identification case, whether the district court erred in applying the
fraud provision (§ 2F1.1) as opposed to the guideline for false citizenship and
naturalization documents (§ 2L1.1);
8
3. In the false identification case, whether the district court erroneously imposed
the enhancements for use of a foreign bank account and for a violation of
“judicial process;”
4. In the false identification case, whether the district court erred in increasing
Magluta’s criminal history category by three levels;
5. In the bond jumping case, whether the district court correctly applied the
Sentencing Guidelines to impose a sentence that is consecutive to the sentence
in the false identification case;
6. In both cases, whether the district court erroneously ordered the terms of
supervised release to run consecutively.
III. STANDARD OF REVIEW
Whether a search warrant affidavit provides sufficient facts to establish
probable cause is reviewed de novo. See United States v. Butler, 102 F.3d 1191, 1198
(11th Cir.), cert. denied, 117 S.Ct. 1712 (1997).
We review the district court’s interpretation of the sentencing guidelines de
novo. See United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir.1995). The
sentencing court’s factual determinations are reviewed for clear error. See United
States v. Taylor, 88 F.3d 938, 942 (11th Cir. 1996); United States v. Howard, 923 F.2d
1500, 1503 (11th Cir. 1991). Lastly, the district court’s decision to depart from the
9
applicable sentencing guideline range is reviewed for abuse of discretion. See Koon
v. United States, 518 U.S. 81, 97, 116 S. Ct. 2035, 2046 (1996); United States v.
Hoffer, 129 F.3d 1196, 1199 (11th Cir. 1997).
IV. DISCUSSION
A. Search Warrant
Magluta contends that Agent Borah’s affidavit failed to establish probable cause
to search the LaGorce residence. We must reject Magluta’s argument.
The task of the issuing magistrate judge [in determining whether to issue a
warrant] is simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the "veracity" and "basis
of knowledge" of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place. See Illinois
v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983). This question is reviewed
de novo by an appellate court, "tak[ing] care to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690,
697, 116 S.Ct. 1657, 1662 (1996). We note, however, that "[i]nformation [in the
warrant application] must be timely for probable cause to exist, for probable cause
must exist at the time the magistrate judge issues the search warrant.” United States
10
v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (quoting United States v. Harris, 20
F.3d 445, 450 (11th Cir. 1994)).
Magluta first argues that the information relating to the 1991 indictment were
“stale,” and not indicative of an ongoing criminal enterprise because the affidavit
failed to indicate “when Magluta was said to have been involved [in the drug
transactions.]” We reject this argument for three reasons: first, the “basic criterion as
to the duration of probable cause [or staleness] is the inherent nature of the crime.”
Bocaro, 742 F.2d at 1346. In this case, it is undisputed that Magluta was being
investigated for drug trafficking activities -- which are activities this Court has
previously noted to be “inherently protracted and continuous.” See id. Thus, the
specific dates that Magluta engaged in the illegal activity are not as important as the
nature of the underlying offense in determining the staleness issue. Second, the
affidavit also demonstrated that Magluta maintained an ongoing relationship with a
coconspirator, Orlando Lorenzo. Such a relationship with a coconspirator is a strong
indicator of a defendant’s continuing criminal activity. See United States v. Harris,
20 F.3d 445, 451 (11th Cir. 1994) (noting that a coconspirator’s access to the
defendant’s house made it “probable that drug-related activities took place or
drug-related documents were stored at the house.”) Third, even if we were to assume
that the information related to the indictment is stale information, “such information
11
is not fatal where the government's affidavit updates, substantiates, or corroborates the
stale material." United States v. Green, 40 F.3d 1167, 1172 (11th Cir. 1994) (quoting
United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994)). As noted before, the
items observed by law enforcement officers during the security sweep are typical in
a drug trafficker’s home. As such, the observed items contemporized and
corroborated the information that Magluta had been -- and was -- engaged in drug
trafficking at the time the warrant was issued.
Magluta’s “lack of nexus” argument must also fail. The affidavit points out that
Magluta was living at the LaGorce residence, that he was a known drug trafficker, and
that law enforcement officials saw items that are typically held by drug traffickers
inside the LaGorce residence. Accordingly, we find that the affidavit shows a nexus
between Magluta’s drug trafficking activity and the LaGorce residence to support a
search warrant for the residence.
In sum, we find that given the information relating to Magluta’s past drug
trafficking activity, corroborated by the recent information obtained during the
security sweep, there was a fair probability that Magluta was involved in illegal
activity, and that evidence of that activity would be found at the LaGorce residence.
Accordingly, the search warrant was supported by probable cause and the evidence
seized during the search -- e.g., fake passports, driver’s licenses, identification cards
12
and Social Security cards -- were properly obtained and admitted during the course
of the false identification trial.
Magluta’s conviction is hereby affirmed.
B. Sentence in the false identification case
1. Whether the district court used the correct guideline
The district court adopted the recommendation in the PSI that § 2F1.15
governed the guidelines for Counts VI-X, which charged violations of 18 U.S.C. §
1028, and 42 U.S.C. § 408. Magluta argues that the district court should have looked
at the specific conduct underlying the conviction and should have applied § 2L2.2, the
Guideline for “Fraudulently Acquiring Evidence of Citizenship or Documents
Authorizing Entry for Own Use.” The question about whether a particular guideline
applies to a given set of facts is a question of law, see United States v. Scroggins, 880
F.2d 1204, 1206 n. 5 (11th Cir. 1989), and thus, we review the district court’s decision
de novo.
Magluta analogizes this case with United States v. Kuku, 129 F.3d 1435 (11th
Cir. 1997), where this Court vacated a sentence of a defendant who was convicted of
5
Although the sentencing occurred in 1997, the district court used the 1990
version of the Sentencing Guideline to calculate Magluta’s base offense level in the
false identifications case, presumably because the 1990 version is more favorable
to Magluta than the 1997 version.
13
unlawfully producing Social Security cards and selling them to illegal aliens. In that
case, the district court sentenced the defendant under § 2F1.1 without examining the
underlying offense conduct to determine whether § 2F1.1 actually envisioned
defendant’s offense conduct. See Kuku, 129 F.3d at 1438. On appeal, this Court held
that the facts in that case, along with the language used in the Guidelines, made §
2L2.1 more applicable. Similarly, Magluta argues that the district court failed to
examine the underlying conduct and erroneously used § 2F1.1, when the facts of this
case and the language used in the Guidelines makes § 2L2.2 more appropriate.
We reject this argument.
First, under the statutory index of the 1990 Guidelines, § 2F1.1 is the only
referenced provision for violations of 42 U.S.C. § 408. Moreover, 2F1.1 is available
as a relevant provision to 18 U.S.C. § 1028 violations, while § 2L2.2 is not listed as
one of the available provisions. See U.S.S.G. App. A (1990).6 Based on this index,
the district court correctly applied § 2F1.1.
6
Although the statutory index may not be conclusive as to the propriety of a
certain Guideline, see, e.g., United States v. Velez, 113 F.3d 1035, 1037 (9th Cir.
1997), we find that it is an important starting point for determining the correct
guideline.
14
Second, there is a critical difference between this case and Kuku.7 In Kuku, the
case involved trafficking false identification documents for the purpose of violating,
or assisting others to violate, the laws relating to naturalization, citizenship, or legal
resident status, which made § 2L2.1 a natural fit. In this case, the record is devoid of
any evidence that suggests Magluta possessed the false documents to violate laws
relating to naturalization, citizenship, or resident status. Magluta did not use the false
identifications to portray that he was an American citizen; Magluta was already a
naturalized citizen. Instead, the record reflects that Magluta provided false
information to various government agencies to fraudulently obtain false identifications
to use in evading law enforcement officials. Thus, when we look at the “conduct
which formed the basis of the underlying conviction” as Magluta suggests, we find
that § 2F1.1 (fraud and deceit) better suits the facts of this case. See also U.S.S.G. §
2F1.1 comment. (n.11) (1990) (“Offenses involving fraudulent identification
7
In Kuku, this Court relied in part on the language in Commentary 11 of §
2F1.1, which reads in pertinent part:
Where the primary purpose of the offense involved the unlawful
production, transfer, possession, or use of identification documents for
the purpose of violating, or assisting another to violate, the laws
relating to naturalization, citizenship, or legal resident status, apply
§2L2.1 or § 2L2.2, as appropriate, rather than §2F1.1.
U.S.S.G. § 2F1.1 comment. (n.11), as amended by U.S.S.G. App. C, Amendment
483. [Emphasis added].
15
documents . . . in violation of 18 U.S.C. §§ 1028 and 1029, are also covered by this
guideline.”)
Accordingly, we find no error in the district court’s decision to apply § 2F1.1.
2. Enhancement for use of a foreign bank account under § 2F1.1(b)(5)
The district court enhanced Magluta’s base offense level under § 2F1.1(b)(5)
because Magluta had a Bahamian bank account in the name of Manuel A. Martinez.
Section 2F1.1(b)(5) allows an enhancement if “the offense involved the use of foreign
bank accounts or transactions to conceal the true nature or extent of the fraudulent
conduct.” The court found that § 2F1.1(b)(5) was an appropriate adjustment “based
on both the nature and extent of the concealment and of the fraud concerning the
concealment of funds and the concealment of the person that were intertwined through
the use of a foreign bank account.”
Magluta argues that this adjustment was improper because Magluta’s offense --
possession or procurement of false identifications -- did not “involve a use of a foreign
bank account” as used in § 2F1.1(b)(5), and that even if a foreign bank account was
used, the enhancement was still improper because the account was not used to
“conceal the true nature or extent of the fraudulent conduct.” In contrast, the
government argues that since the “driving force” of Magluta’s offense was his
concealment of himself from law enforcement officials, he used funds from his
16
foreign bank account to sustain his fugitive status, and thus, the enhancement was
proper. Since this issue presents a mixed question of law and fact, we review the
district court’s decision de novo. See United States v. Arguedas, 86 F.3d 1054, 1057
(11th Cir. 1996).
There are no reported court of appeals cases that address the imposition of a §
2F1.1(b)(5) enhancement. The plain language of this subsection, however, suggests
that there are two basic elements to this enhancement: first, the offense must involve
the use of the foreign bank account; and second, the use must be to “conceal the true
nature or extent of the fraudulent conduct.” The Commission appears to have
included this subsection because:
[o]ffenses that involve the use of transactions or accounts outside the
United States in an effort to conceal illicit profits and criminal conduct
involve a particularly high level of sophistication and complexity. These
offenses are difficult to detect and require costly investigations and
prosecutions. Diplomatic processes often must be used to secure
testimony and evidence beyond the jurisdiction of United States courts.
U.S.S.G. § 2F1.1, comment. (backg’d). Thus, the provision was designed to punish
and deter defendants from using foreign accounts to conceal illicit profits and criminal
conduct, because the use of foreign bank accounts often resulted in additional
difficulties imposed on the government in investigating the defendant. Consequently,
we hold that for an offense to “involve the use of a foreign bank account,” the foreign
bank account was used to further the underlying offenses, or somehow was used to
17
hinder the investigation and/or the prosecution of the underlying offenses.
In this case, the district court focused on Magluta’s relevant conduct, and not
solely on the possession of false identifications to support the enhancement under this
section. Therefore, as an initial matter, we must determine whether the “offense” as
used under this subsection encompasses Magluta’s relevant conduct of avoiding
capture. The government argues that the driving force behind Magluta’s conduct was
the concealment of himself from law enforcement authorities. Since Magluta was able
to conceal himself and his assets through the use of the money in the foreign bank
account, the enhancement was justified.
We agree.
Although Magluta was convicted for possessing and procuring false
identifications documents, his “offense” for sentencing purposes includes all other
relevant conduct that relates to the conviction.8 In this case, Magluta’s relevant
conduct consisted of using those false identifications to avoid arrest and to impede
prosecution of the false identification charge, and other charges. Thus, his “offense”
includes his conduct to avoid capture and prosecution.
The record reflects that Magluta had a foreign bank account in the name of one
8
Relevant conduct includes, “all acts . . .in the course of attempting to avoid
detection or responsibility” for the underlying offense. U.S.S.G. § 1B1.3 (a)(1)
(1990).
18
of his aliases, and that during the time he was concealing himself from law
enforcement officials, he made several withdrawals from that account. Due to the
large amount of money that Magluta possessed in his foreign bank account, he was
able to use the money to conceal himself from the authorities. Moreover, unlike in
cases where the law enforcement officials can capture fugitives by tracking the
fugitive’s domestic bank transactions, the facts of this case show that because
Magluta’s fiscal resources were located in a foreign bank, law enforcement officials
had additional difficulty tracking Magluta.9 Further, it is reasonable to infer that
Magluta’s financial resources gave him the ability to hide in places where law
enforcement officials would not normally look for a fugitive, e.g., expensive hotels,
and also that the financial resources gave Magluta greater geographic mobility.
Therefore, we hold that Magluta’s “offense” involved the use of a foreign bank
account and that such use hindered the investigations into the offense.
Magluta further argues that even if the foreign bank account was used, the
enhancement was still improper because it was not used to “conceal the true nature or
extent of the fraudulent conduct.” We disagree. As noted before, the district court
correctly found that the true nature of Magluta’s fraudulent conduct involved the use
9
As such, we necessarily reject Magluta’s contention that § 2F1.1(b)(5) was
designed solely to punish “financial” fraud.
19
of false identifications to avoid prosecutions in several jurisdictions. Since we held
that the district court correctly found that Magluta used the money in the foreign bank
account to sustain his fraudulent conduct of hiding himself from law enforcement
officials, we necessarily conclude that the second element is also satisfied.
Accordingly, we hold that the § 2F1.1(b)(5) enhancement was proper.10
3. Upward departures
In addition to the abovementioned enhancements, the district court made a six-
level upward departure based on § 5K2.7, § 2F1.1, Application Note 9, and § 5K2.9.
Magluta argues that the departure was erroneous because the reasons given for the
departures were already used in imposing the enhancements. We review a district
court's decision to depart from the Guidelines for an abuse of discretion. See Koon,
518 U.S. at 100, 116 S.Ct. 2035. In reviewing departures from the Guidelines, this
Court has developed a three-part test:
(1) Was the aggravating circumstance cited by the district court
adequately taken into consideration by the Sentencing Commission in
formulating the Guidelines?
10
Section 2F1.1(b)(5) requires the base offense level to be raised to 12 if the
base offense level is less than 12. See U.S.S.G. § 2F1.1(b)(5). Since we affirmed
the enhancement under this section, Magluta’s challenge to the § 2F1.1(b)(3)(B)
enhancement is moot because that enhancement would have no effect on Magluta’s
base offense level.
20
(2) If adequate consideration was not given to the circumstance, was
consideration of the circumstance consistent with the goals of the
Sentencing Guidelines?
(3) If the circumstance was properly taken into account, was the extent
of the departure from the guideline range reasonable?
United States v. Gunby, 112 F.3d 1493, 1499 (11th Cir. 1997). The first prong of the
test is not present in this appeal. Moreover, since the departure grounds used were
based on factors suggested by the Commission, we need not discuss the second prong
of the test. We address whether the facts in this case adequately fall under the factors
listed to support the departure, and if they do, whether the amount of the departure is
reasonable.
a. Section 5K2.7
If the “defendant’s conduct resulted in a significant disruption of a
governmental function,” § 5K2.7 allows the district court to depart from the
Guidelines. The district court based the departure on the following three reasons:
first, Magluta’s use of false identifications led to the disruption of the orderly process
of the court; second, at the time of the arrest, there were four outstanding warrants for
him which disrupted the administration of justice; and third, that the U.S. Marshals
Service expended a tremendous amount of resources to apprehend him.
Magluta argues that with the exception to the latter, the district court’s stated
reasons are repetitive of the reasons given for the § 2F1.1(b)(3)(B) enhancement.
21
Moreover, he argues that his conduct did not “disrupt governmental function” as
defined under § 5K2.7. With respect to his first argument relating to double-counting,
Magluta’s argument is mooted by our decision today. Since § 2F1.1(b)(3)(B) (and the
reasons given therefore) enhancement has no effect on the base offense level, we hold
that even if the reasons given for the § 2F1.1 enhancement were used again to support
the upward departure, that double counting is, at best, harmless error. That being
said, we first direct our attention to whether the reasons given by the district court can
support the departure under § 5K2.7.
Magluta’s main argument with respect to this provision is that there was no
“disruption” of governmental function as defined by § 5K2.7 because the cases
upholding the § 5K2.7 departure reveal two distinct fact patterns, in neither of which
this case fell. Magluta identifies that the first group of cases involve defendants who
were government employees whose crimes seriously compromised the ability of their
governmental employer to perform its appointed functions. See, e.g., United States
v. Gunby, 112 F.3d 1493, 1500-03 (11th Cir. 1997) (a magistrate embezzling filing
fees); United States v. Baird, 109 F.3d 856, 871 (3d Cir. 1997) (corrupt police officer).
The other group of cases involve offenses of the outside actor that significantly
frustrate the normal day-to-day operations of government. See, e.g., United States v.
Kramer, 943 F.2d 1543, 1550 (11th Cir. 1991) (a crashed helicopter on prison grounds
22
in an unsuccessful prison escape justified a § 5K2.7 departure); United States v.
Kikumura, 918 F.2d 1084, 1117 (3d Cir. 1990) (disallowing a § 5K2.7 departure
based on a defendant’s intent to bomb federal buildings in order to influence policy).
Magluta argues that since the facts of this case do not fall into either category, there
was no “disruption” of a governmental function.
The government argues that Magluta’s conduct disrupted the governmental
function in two ways. First, Magluta imposed substantial costs upon the Marshal’s
Service which, beginning in January 1990, had provided assistance to other law
enforcement agencies. Second, Magluta undermined the ability of courts and the
criminal justice system to enforce its judgments and thereby societal order.
Initially, we reject Magluta’s contention that the facts of this case must fall into
one of the two patterns in order to support a “disruption of governmental function”
departure. We find nothing in the case law or the Sentencing Guidelines that limits
the application of § 5K2.7 to just the two fact patterns. Further, we disagree with the
government’s argument that Magluta’s acts significantly disrupted the functions of the
Marshal’s Service because one of the functions of the Marshal’s Service is to track
fugitives. See 28 U.S.C. § 566(e)(1)(B). The record does not show that the Marshal’s
Service was significantly disrupted by Magluta’s use of the false identification
documents. The Marshals were merely carrying out their normal duties of tracking
23
fugitives.
With respect to the government’s second argument that Magluta undermined
the ability of various courts to enforce its judgments, we hold that the district court’s
finding was proper. As we noted in United States v. Gunby, 112 F.3d 1493, 1502
(11th Cir. 1997), the most basic function of the court system is to promote the rule of
law, which cannot function properly if the people lose respect for, and confidence in,
the judiciary. We conclude that it was reasonable for the district court to find
Magluta’s continuous disregard for the rule of law, as evidenced by the number of
outstanding warrants, coupled with his extravagant lifestyle while a fugitive, caused
people to lose confidence in the effectiveness of the judicial system and, in turn,
disrupted the orderly process of the administration of justice. Therefore, we hold that
the district court did not abuse its discretion in upward departing Magluta’s base
offense level.
b. Application Note 9 of § 2F1.1
As another basis for the upward departure, the district court relied on
Application Note 9 of § 2F1.1, which reads: “[d]ollar loss often does not fully capture
the harmfulness and seriousness of the conduct. In such instances, an upward
departure may be warranted.” Specifically, the district court found that subsection (e)
applied to Magluta’s offense, which allows a departure if a defendant’s conduct
24
caused a “loss of confidence in an important institution.” The “institution” that the
district court referred to was the judicial system.
The record shows that the district court relied on the same conduct that
supported the application of § 5K2.7 to apply Application Note 9. Mainly, to support
both grounds for upward departures, the district court found that the “loss of
confidence” in the court system resulted in a “disruption of a governmental function.”
In essence, we find that the reasons given by the district court to support the
departures were extremely similar, and thus, we conclude that the district court abused
its discretion in relying on the same conduct to upward depart under § 5K2.7 and
Application Note 9.
c. Section 5K2.9
The district court also found that § 5K2.9 applied, which permits a departure
if the “defendant committed the offense in order to facilitate or conceal the
commission of another offense.” The district court stated, “based upon the facts and
circumstances of this case, there are indications of tax evasion, possession of a firearm
by a convicted felon and of course bond jumping.” Magluta argues that since the
district court did not find by a preponderance that he had committed the offense of tax
evasion and felon-in-possession of a firearm, but that there were “indications” of such
conduct. Consequently, he argues, that finding is inadequate to support the departure.
25
Alternatively, Magluta argues that even if there was sufficient evidence to support a
finding that Magluta committed the offenses of tax evasion and felon-in-possession,
the district court erred because it made no finding that he acquired and possessed false
identification documents in order to commit those offenses. We reject both of these
arguments.
We find that the record sufficiently shows that Magluta acquired and possessed
the false documents in order to commit the offense of tax evasion, and felon-in-
possession. The record reflects that Magluta did not have a steady source of
legitimate income, yet he possessed money in excess of $1.2 million, and lived an
extravagant life. In addition, he held some of these assets in a bank account opened
through the use of a false identification. Under these facts, it is reasonable to infer and
find by a preponderance that Magluta acquired false identifications to facilitate his
hiding of assets from the government – mainly, the Internal Revenue Service.
Moreover, with regard to the felon-in-possession charge, Magluta used one of his
aliases, Angelo Maretto, to purchase a firearm. This is strong circumstantial evidence
that Magluta obtained the false identification to illegally purchase the firearm, because
he knew he could not purchase a firearm in his own name. Based on these pieces of
evidence, we conclude that the district court correctly found that Magluta committed
the offense to facilitate the crime of tax evasion and felon-in-possession of a firearm,
26
and that he possessed the false identifications to facilitate the commission of those
crimes. Accordingly, we find no abuse of discretion in the district court’s reliance
of § 5K2.9 as a departure ground.
In sum, we find that the reasons given by the district court in support of the
departure satisfies the first two prongs of the Gunby test. Magluta’s base offense level
does not adequately take into consideration the aggravating circumstances stated by
the district court. Per the third prong of the test -- whether the extent of the departure
is reasonable -- we must remand. Since we found that one of the grounds relied on by
the district court constituted double counting, we must remand for a determination by
the district court of whether a six-level departure can be reasonably supported by just
the two factors in § 5K2.7 and § 5K2.9.
4. Criminal history category departure in the false identification case
The district court raised Magluta’s criminal history category from III to VI in
the false identifications case. Magluta argues that the court erred in departing because
it relied on impermissible grounds. We review the district court’s decision to depart
for abuse of discretion. See Koon, 518 U.S. at 97, 116 S.Ct. at 2046 (1996); United
States v. Hoffer, 129 F.3d 1196, 1199 (11th Cir. 1997).
Section 4A1.3 allows the sentencing court to upward depart on the criminal
history category “[i]f reliable information indicates that the criminal history category
27
does not adequately reflect the seriousness of the defendant’s past criminal conduct
or the likelihood that the defendant will commit other crimes.” In addition, § 4A1.3
provides some non-exhaustive list of examples which demonstrate possible bases of
departure, such as “whether defendant was pending trial or sentencing on another
charge at the time of the instant offense.” U.S.S.G. § 4A1.3(d).
The record reflects that the district court based the upper departure on three
grounds: first, Magluta’s fugitive status as a result of pending charges in California
and Florida; second, the likelihood of recidivism “based upon the facts and
circumstances of this case;” and third, the fact that Magluta used false identification
after he absconded himself from the trial. The district court chose the criminal history
category of VI because “it is the criminal history category which adequately reflects
the defendant’s conduct, taking into consideration the number of charges that were
pending against him during the offense and the likelihood of recidivism.”
Magluta argues that the reasons given by the district court cannot support
departure in the false identifications case because they relate to acts that were
contemporaneous with, if not part of, the underlying offense. See United States v.
Ledesma, 979 F.2d 816, 821 (11th Cir. 1992) (“[T]he criminal history category
depends on the defendant’s conduct prior to, rather than contemporaneous with, the
offense of conviction.”) In other words, he argues that a § 4A1.3 departure can only
28
be based on conduct that occurred prior to the current offense.
Magluta also argues that since the district court already considered the previous
pending charges as relevant conduct in calculating the base offense level, they were
part of the offense in this case, and thus, they too could not be used as a basis of
criminal history departure. See United States v. Adudu, 993 F.2d 821, 823 (11th Cir.
1993) (“if the criminal acts were ‘part of . . . the same course of conduct or common
scheme or plan as the offense of conviction,’ then, as a matter of law, it was an
impermissible ground upon which to base a criminal history departure.”) (quoting
United States v. Jones, 948 F.2d 731, 737 n.11 (D.C. Cir. 1991)). The government
does not directly dispute Magluta’s contentions, but rather argues that the district
court did not abuse its discretion by departing because it also relied on Magluta’s post-
flight conduct of acquiring more false identification to determine the risk of
recidivism. The government relies on United States v. Fayette, 895 F.2d 1375 (11th
Cir. 1990) for the proposition that Magluta’s acts of gathering more false
identifications further supports the risk of recidivism, and in turn, supports the
criminal history departure. We agree.
In Fayette, we held that § 4A1.3 was the appropriate mechanism, as opposed
to an unguided § 5K2.0 departure, for factoring a defendant’s post-plea offenses to the
defendant’s sentence. See Fayette, 895 F.2d at 1380. While reaching this conclusion,
29
we suggested that the timing of the offenses was insignificant with respect to a §
4A1.3 departure, and considered that such post-plea conduct under § 4A1.3 as a basis
for a departure was consistent with the “individual deterrence” objective of the
Guidelines. See id. Similarly, we reject Magluta’s argument that only the conduct
that occurred prior to the offense can be considered for the purposes of § 4A1.3
departure; all conduct that occurred prior to sentencing, that was not already
considered as part of the offense of conviction, can be considered in determining the
risk of recidivism, and in turn, can support a criminal history category departure.11
In the case at bar, the district court relied, in part, on Magluta obtaining and
using more false identifications after he jumped bond to support the departure. That
conduct was not part of the offense of conviction, nor was it considered as relevant
conduct in calculating the base offense level. Since Magluta was convicted of
possessing and using false identification documents, his post-conviction, pre-sentence
procurement of more false identifications shows that there was a likelihood of
recidivism. We find no error in the district court’s finding in that respect. However,
we do find that the other two grounds the district court stated – the pending cases
11
Our holding today does not conflict with the Adudu case. In Adudu we
merely held that conduct that is part of the offense cannot be a basis for a criminal
history departure. See Adudu, 933 F.2d 821, 823. Nothing in Adudu prevents the
district court from considering post-conviction, pre-sentencing conduct when
making a criminal history category departure.
30
against Magluta, and the risk of recidivism stemming therefrom – were already
factored into the calculation of Magluta’s base offense level through the relevant
conduct provisions. See supra.
Having so decided, we must remand the case for a determination regarding the
propriety of the three-level departure. On remand, the district court should make a
determination as to how much departure is appropriate when considering only the
conduct that was not part of the offense of conviction.
C. Sentencing in the bond jumping case
1. Whether the district court properly imposed consecutive sentences
After the consolidated sentencing hearing, the district court imposed a separate
sentence for the bond jumping case to run consecutively to the false identification
case. In his reply brief, Magluta conclusively argues for the first time that under
Application Note 3 of § 2J1.6,12 the district court was required to treat his bond jump
solely as a two-level upward adjustment for obstruction of justice in the false
identification case, and not as a separate case for sentencing purposes.
This Court "consider[s] sentence objections raised for the first time on appeal
under the plain error doctrine to avoid manifest injustice." United States v. Hansley,
12
The district court used the 1997 version of the Sentencing Guidelines to
calculate Magluta’s base offense level in the bond jumping case.
31
54 F.3d 709, 715 (11th Cir.1995) (quoting United States v. Newsome, 998 F.2d 1571,
1579 (11th Cir.1993)). For the Court to correct plain error: (1) there must be error;
(2) the error must be plain; and (3) the error must affect substantial rights. See United
States v. Vazquez, 53 F.3d 1216, 1221 (11th Cir.1995); see also United States v.
Olano, 507 U.S. 725, 731-35, 113 S.Ct. 1770, 1776-77 (1993). In addition, the error
must “seriously affect the fairness, integrity, or public reputation of a judicial
proceeding.” United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999)
(citing Olano, 507 U.S. at 732.)
Application Note 3 of § 2J1.6 states in part: “[I]n the case of a conviction on
both the underlying offense and the failure to appear, the failure to appear is treated
under § 3C1.1 (obstructing or impeding the Administration of Justice) as an
obstruction of the underlying offense; and the failure to account and the count(s) for
the underlying offenses are grouped together under §3D1.2(c).” Based on this
language, Magluta argues that the district court should have only imposed a § 3C1.1
enhancement to the false identification case for his bond jump instead of performing
a separate calculation for the bond jumping case. In contrast, the government argues
that Application Note 3 should not apply because it conflicts with the statutory
language in the failure to appear statute, 18 U.S.C. § 3146(b), which mandates that,
“[a] term of imprisonment imposed pursuant to this section shall be consecutive to the
32
sentence of imprisonment for any other offense.”13 The government argues that since
the Guideline’s grouping rule conflicts with the statutory language and cannot be
reconciled with the statutory mandate of a consecutive sentence, the Sentencing
Guideline should not be followed. See, e.g., United States v. Packer, 70 F.3d 357, 359
(5th Cir. 1995) (“The [G]uideline treatment of section 3146(b)(2) would defeat the
statutory intent that a failure to appear offense be considered separate and distinct
from the underlying offense, warranting a separate and distinct penalty.”)
We agree with Magluta that the district court may have committed an error by
not following the application note to § 2J1.6. However, there is no need for us to
address whether the Guideline does conflict with the statutory language, because we
cannot find that the district court committed an error that is “plain.” As we have
explained in Humphrey, a district court’s error is not “plain” or “obvious” if there is
no precedent directly resolving a issue. See Humphrey, 164 F.3d at 588. We find
nothing in our case law that directly deals with the potential conflict between the
Guidelines and the failure to appear statute. At the worst, we find that there is at least
room for doubt as to whether the Guideline’s sentencing approach conflicts with the
statutory mandate of the statute. As such, we find that the district court’s decision to
13
In Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913 (1993), the
Supreme Court held that the Guideline commentary is authoritative unless it
conflicts with the Constitution or an applicable statute.
33
calculate separate base offense levels in both the false identification case and the bond
jumping case, and to impose a consecutive sentence is not an error that is “plain.”
Thus, we reject Magluta’s argument.
2. Enhancement under § 2J1.6(b)(2)
Above argument notwithstanding, Magluta argues that the district court
erroneously enhanced his base offense level by three levels. Under § 2J1.6, a
defendant’s adjusted base offense level is based on the statutory maximum sentence
for “the underlying offense” on which he failed to appear. U.S.S.G. § 2J1.6 assigns
a base level of six, and then directs that offense level be increased by six levels if the
“underlying offense” is punishable by five or more, but less than 15 years, or by nine
levels if the “underlying offense” is punishable by a term of 15 years or more. See
U.S.S.G. § 2J1.6(b)(2) (1997).
The district court enhanced Magluta’s offense level by nine levels under §
2J1.6(b)(2)(A), concluding that “the underlying offense” on which Magluta jumped
bond carried a statutory maximum sentence of 50 years, the aggregate of the five year
statutory maximum on each of the ten counts of the indictment. Magluta argues that
the district court should have interpreted the terms “underlying offense” to only
include the most serious of the ten counts, and use it to calculate the appropriate
amount of enhancement. In other words, under Magluta’s interpretation of the
34
“underlying offense,” the maximum sentence that should be used to calculate the
enhancement should be five years.
In support of his position, Magluta relies on United States v. Iddeen, 854 F.2d
52 (5th Cir. 1988). In Iddeen, a pre-guidelines case, Iddeen was convicted of ten
counts of mail fraud, which carried a five year maximum on each count, and was
released on bond pending sentencing. See id. at 53. Iddeen jumped bond, but was
later captured and convicted for failure to appear in violation of 18 U.S.C. § 3146. In
formulating a sentence under the failure to appear statute, the district court aggregated
maximum sentences in the ten counts of mail fraud and sentenced Iddeen to ten years
of imprisonment under § 3146(b)(1)(A), which was to run consecutive to the forty
years he received for the mail fraud convictions. See id. The Fifth Circuit remanded,
holding that the terms “an offense punishable by” used in § 314614 means the
maximum punishment of one offense, out of all the counts in the indictment, and not
14
18 U.S.C. § 3146 proscribes punishment for violations as follows:
(b) Punishment.–(1) The punishment for an offense under this section is--
(A) if the person was released in connection with a charge of, or while
awaiting sentence, . . .
(i) an offense punishable by death, life imprisonment, or
imprisonment for a term of 15 years or more, a fine under this title or
imprisonment for not more than ten years, or both;
(ii) an offense punishable by imprisonment for a term of five years or
more, a fine under this title or imprisonment for not more than five years, or both[.]
18 U.S.C. § 3146.
35
the aggregate of all offenses charged. See id. at 56.
The government first argues that the district court correctly interpreted the
terms “the underlying offense” to encompass the aggregation of all the counts in the
complaint because aggregating the sentences best fulfills the objective of providing
greater deterrence to defendants who are facing longer prison terms, as opposed to a
defendant who only faces a light sentence. Second, the government argues that under
the plain language, the phrase “the underlying offense” within § 2J1.6(a) reflects the
Commission’s intent to reach the full scope of penalties that a bond jumping defendant
seeks to escape. Under its view, the government suggests that the use of the definite
article “the” to modify “underlying offense” distinguishes § 2J1.6 from the statutory
language relied on by the Iddeen court, and that in light of vast number of federal
indictments being multi-count indictments, Ҥ 2J1.6(b)(2) necessarily considers the
multiple counts of an indictment as part of the same ‘underlying offense.’” We
disagree with the government.
First, we believe that the operative word to focus on is the word “offense,” as
opposed to “offenses,” and not on the articles “the” or “an.” With the proper focus,
we find no ambiguity in the words “the underlying offense.” The terms describe one
offense, and nothing more. If we were to adopt the government’s argument, we would
be giving a plural meaning to the otherwise plain, singular meaning of the word
36
“offense.” We find nothing in the Guidelines or the case law which suggests that
Commission really meant the plural when it used the singular term “offense.”
If the Commission wanted “the underlying offense” to mean the aggregate of
all the counts, it could have removed all doubt by using the plural form of the word
offense, “offenses.” This logic is even more probative of the Commission’s intent
when viewed in the fact that the Commission should have been aware of the holding
in Iddeen-- a pre-guideline case -- when it promulgated subsequent revisions to the
Guidelines.
Thus, we carry over the reasoning in Iddeen to the Guidelines, and hold that the
terms “the underlying offense” refers to the one count in the indictment--the most
serious of the counts referred to in the indictment--and not the aggregate of all the
maximum penalties in the counts under § 2J1.6. Accordingly, we hold that the district
court erred in enhancing Magluta’s base offense level in the bond jumping case by
nine levels.
3. Obstruction enhancement under § 3C1.1
The district court imposed a two level obstruction of justice enhancement to
Magluta’s base offense level under § 3C1.1, reasoning that the enhancement was
“appropriate under the facts and circumstances of this case based on the documents
that were found on the defendant at the time of his arrest and the additional fraudulent
37
identifications and the use of those identifications . . . .” Section 3C1.1 provides for
a two level increase in the offense level if the defendant “willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1
(1997). However, for failure to appear offenses and other offenses covered under §
2J1.6, the Commission instructs that the obstruction enhancement “does not apply,
unless the defendant obstructed the investigation or trial of the failure to appear
count.” U.S.S.G. § 2J1.6 comment. (n.2). We review the district court’s factual
findings of obstruction of justice for clear error, and its legal conclusions de novo.
See United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996).
Magluta argues that the enhancement was improper because the reasons on
which the district court relied to support the enhancement were already taken into
consideration in formulating the applicable guideline, and that he did not obstruct the
investigation or trial of his bond jump. With regard to his first argument, Magluta
relies on United States v. Sarna, 28 F. 3d 657 (7th Cir. 1994). In Sarna, the Seventh
Circuit, in the context of a guideline departure, opined that fleeing the jurisdiction,
traveling, working under assumed names, and evading law enforcement officials were
types of conduct that “commonly inhere in the offense of failure to appear,” and thus,
such conduct could not be a basis for a departure from the Guidelines. Sarna, 28 F.3d
38at 662. Similarly, Magluta argues that his post-flight conduct-- hiding from law
enforcement authorities by using false identification--was already factored into his
base offense level because such conduct is inherent in the crime of failure to appear.
We reject this argument.
Magluta oversimplifies his post-flight conduct. Even if we were to agree with
the Sarna court and hold that certain typical post-flight conduct is inherent in the
crime of failure to appear, we cannot say that Magluta’s conduct falls within that
category.15 Unlike the defendant in Sarna, Magluta was not merely working under
assumed names or avoiding law enforcement officials by his own conduct. As noted
before, the district court based the enhancement on the documents found on Magluta
at the time of his arrest. These documents evidenced Magluta directing his family and
friends to assist him in remaining at large by assessing a large amount of cash, erasing
his asset trail, and instructing his son regarding the son’s grand jury testimony.
Based on these pieces of evidence, the district court could have easily found
that Magluta obstructed justice when law enforcement officials were attempting to
apprehend Magluta. We do not find that Magluta’s conduct of enlisting his friends
and family members to help him remain a fugitive is the type of conduct that is
15
We express no opinion with regard to whether fleeing the jurisdiction,
working under aliases and evading law enforcement officials are types of conduct
that are inherent in the crime of failure to appear.
39
“inherent” in the offense of failure to appear. Quite the contrary, we find that such
conduct is classic obstructive conduct.
Accordingly, we find no error in the district court’s decision to enhance
Magluta’s base offense level for obstructing justice.
4. Criminal history category departure in the bond jumping case
Magluta argues that the district court erroneously departed upward on his
criminal history category in the bond jumping case because the bases which the
district court used to depart were already used in departing in the false identifications
case. We review the district court’s decision to depart under the abuse of discretion
standard. See Hoffer, 129 F.3d at 1199.
Contrary to Magluta’s argument, we do not find that the district court relied on
identical facts to support a risk of recidivism finding in both cases. The record shows
that while granting the government’s motion for an upward departure in the bond
jump case, the district court relied on the risk of recidivism as suggested by Magluta’s
past and present bond jumps. In making a criminal history category departure in the
false identification case, however, the district court relied on the risk of recidivism,
as shown partly by Magluta’s post-flight conduct of obtaining more false
identifications, to support a criminal history departure.
The crimes to which the particular recidivism risk applies are different: in the
40
bond jump case, the risk of recidivism relates to the chance that Magluta will jump
bond in the future. In the false identification case, the recidivism risk relates to the
chance that Magluta will possess and/or use more false identifications in the future.
Due to this critical distinction, we conclude that the district court relied on different
factual bases while departing from Magluta’s criminal history category. More
importantly, we do not find that the district court abused its discretion while departing
upward.
D. Consecutive supervised release
The district court also imposed a three year supervised release in both cases to
be served consecutively. As Magluta and the government correctly point out, “any
term of supervised release imposed is to run concurrently with any other term of
supervised release imposed.” See 18 U.S.C. § 3624(e) (“The term of supervised
release commences on the day the person is released from imprisonment and runs
concurrently with any Federal, State, or local term of probation or supervised release
or parole for another offense to which the person is subject or becomes subject during
the term of supervised release”); U.S.S.G. § 5G1.2 comment. Accordingly, we vacate
the sentence of consecutive term of supervised release and remand for re-sentencing.
V. CONCLUSION
We affirm the conviction in the false identification case. However, we must
41
vacate the sentences entered in both cases, and remand for re-sentencing.
In the false identification case, the district court should address on remand
whether the six-level upward departure in the base offense level can be supported
by the factors listed in § 5K2.7 and 2.9. Similarly, the district court should also
determine whether the three-level upward criminal history departure can be
supported based on Magluta’s acts that were not part of his “offense” as defined in
the Guidelines.
In the bond jumping case, Magluta’s adjusted base offense level must be
recalculated by only enhancing the base offense level by six levels, and not nine.
Lastly, the sentence of consecutive supervised release is vacated. The
supervised release should run concurrently as directed by the Guidelines.
AFFIRMED in part, VACATED and REMANDED in part.
42