United States v. Descally , 254 F.3d 1328 ( 2001 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Paul DESCALLY, a.k.a. Darrell Johnson, a.k.a. Johnny Evans, et al., Defendant-Appellant.
No. 99-4232.
United States Court of Appeals,
Eleventh Circuit.
June 28, 2001.
Appeal from the United States District Court for the Southern District of Florida.(No. 96-00022-CR-LCN),
Lenore C. Nesbitt, Judge.
Before ANDERSON, Chief Judge, and FAY and BRIGHT*, Circuit Judges.
BRIGHT, Circuit Judge:
Paul Descally appeals the district court's imposition of a 100-month sentence for conspiring to violate
the Hobbs Act, 18 U.S.C. § 1951(a),1 by obstructing, delaying, and affecting commerce by forcibly taking
property from persons who appeared to be tourists. The federal sentence was imposed concurrently to a
thirty-year state sentence, and the district court refused to reduce Descally's federal sentence by the full
seventy-three months he had spent in state custody, before the federal sentencing, on a related crime. For the
reasons stated below, we reverse and remand the case to the district court for resentencing.
Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction is proper in
this court based upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The notice of appeal was timely filed
pursuant to Fed. R.App. P. 4(b).
I.
On December 21, 1992, Descally was arrested in Florida and charged with the robbery of two
Venezuelan tourists at a gas station in Miami. He was convicted and ultimately sentenced to thirty years'
imprisonment for that offense on January 26, 1995. The state court, sentencing him as a repeat offender,
considered three strong-arm robberies, including this one, to which he later plead guilty in the federal district
court in 1998. He was sent to a Florida state prison and has been continuously in prison since his arrest.
*
Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
1
The Hobbs Act, 18 U.S.C. § 1951(a), makes it a federal crime for anyone to take, or attempt to take,
the property of another by robbery, and in so doing to interfere with commerce or with the movement of
articles or commodities in commerce.
On December 13, 1996, Descally was indicted in federal court, along with eleven co-defendants,
under 18 U.S.C. § 1951(a) ("Hobbs Act") for conspiring to and unlawfully taking United States currency,
travelers' checks, credit cards, passports, and other property in commerce belonging to tourists in Dade
County, Florida beginning in or about September, 1991, through on or about February 27, 1996. On July 27,
1998, he plead guilty to Count 3 of a second superseding indictment, charging him with violation of the
Hobbs Act by conspiring to rob beginning in or about August, 1983, and continuing through the date of the
return of the indictment, December 13, 1996, and robbing United States currency and an airline ticket from
three tourists on or about November 28, 1991, robbing United States currency, travelers' checks, airline
tickets, and Brazilian passports from two tourists on or about December 27, 1991, and robbing United States
currency and a camera from two Venezuelan tourists on December 21, 1992 (of which he was convicted and
sentenced to thirty years incarceration in the State of Florida as earlier stated). The district court considered
the aforementioned acts to which Descally plead guilty as relevant conduct for sentencing purposes, in
addition to an October 23, 1991 robbery of two Brazilian tourists. The government argued that between
October 23, 1991 and December 21, 1992, Descally participated in an ongoing conspiracy to target tourists
or apparent tourists for robberies, and he took or attempted to take property from victims by the use of force
or fear. The district court determined that all of the robberies were related to each other and were part and
parcel of the conspiracy to which Descally was pleading guilty. The district court also acknowledged that
Application Note 2 to section 5G1.3(b) of the Sentencing Guidelines would be recommended at sentencing.
Descally's sentencing guideline range was 87 to 108 months, based on a criminal history category
of II and a total adjusted offense level of 28. At the sentencing proceedings on January 26, 1999, Descally
argued that he had already served seventy-three months on his thirty-year state sentence and the district court
should grant him credit for time served, since the robbery for which he was incarcerated in state prison was
clearly relevant conduct to this conspiracy and the parties agreed to it in the plea agreement. The district
court rejected Descally's argument, holding that Descally's 100-month sentence relates back only to when he
was arrested by the federal authorities on the federal charges in 1996 while he was in state custody.
II.
The district court imposed a sentence of 100 months to run concurrently with the thirty-year state
sentence pursuant to its discretion. However, the district court did not apply Application Note 2 of U.S.S.G.
§ 5G1.3(b) to give the defendant credit on the federal sentence for the seventy-three months already served
on the state sentence. We review the district court's application of the sentencing guidelines de novo. United
States v. Johnson, 87 F.3d 1257, 1258 (11th Cir.1996).
Descally argues that the district court erred in failing to follow commentary to U.S.S.G. § 5G1.3(b)
in Application Note 2. Under that note, the district court could have reduced Descally's federal sentence by
the amount of time he had spent in state custody on a related crime. U.S.S.G. § 5G1.3 provides:
(a) If the instant offense was committed while the defendant was serving a term of imprisonment
(including work release, furlough, or escape status) or after sentencing for, but before commencing
service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s)
that have been fully taken into account in the determination of the offense level for the instant
offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged
term of imprisonment.
(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment
to achieve a reasonable punishment for the instant offense.
Descally is correct that subsection (b) applies to this case because the undischarged term of
imprisonment (the thirty-year state robbery sentence) resulted from an offense that was fully taken into
account in determining the sentence he received under 18 U.S.C. § 1951(a).
U.S.S.G. § 5G1.3, Application Note 2 provides:
Adjusted concurrent sentence-subsection (b) cases. When a sentence is imposed pursuant to
subsection (b), the court should adjust the sentence for any period of imprisonment already served
as a result of the conduct taken into account in determining the guideline range for the instant offense
if the court determines that period of imprisonment will not be credited to the federal sentence by the
Bureau of Prisons. Example: The defendant is convicted of a federal offense charging the sale of
30 grams of cocaine. Under § 1B1.3 (Relevant Conduct), the defendant is held accountable for the
sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and
sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state
offense and has served six months on that sentence at the time of sentencing on the instant federal
offense. The guideline range applicable to the defendant is 10-16 months (Chapter Two offense level
of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance of responsibility; final
offense level of 12; Criminal History Category I). The court determines that a sentence of 13 months
provides the appropriate total punishment. Because the defendant has already served six months on
the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven
months, imposed to run concurrently with the three months remaining on the defendant's state
sentence, achieves this result. For clarity, the court should note on the Judgment in a Criminal Case
Order that the sentence imposed is not a departure from the guideline range because the defendant
has been credited for guideline purposes under § 5G1.3(b) with six months served in state custody
that will not be credited to the federal sentence under 18 U.S.C. § 3585(b).
Putting aside for a moment the question of whether this commentary mandates a seventy-three-month
credit in this case, the government argues that we should dismiss this appeal because Descally waived his
right to appeal his sentence when he signed the plea agreement, and the "concurrent sentence doctrine"
precludes consideration of this appeal. This court already rejected the government's first argument when it
denied the government's motion to dismiss the appeal.2 The district court, before accepting Descally's guilty
plea, stated unequivocally that Descally could appeal his sentence if it was more severe than he expected.
We deem the government's argument as frivolous.
We also disagree with the government's assertion that the concurrent sentence doctrine requires
dismissal of Descally's appeal. That doctrine allows a reviewing court not to consider the validity of the other
counts of conviction when a defendant is sentenced to concurrent terms on several counts and the conviction
on one count is sustained. United States v. Davis, 730 F.2d 669, 671 n. 2 (11th Cir.1984) (declining to apply
the concurrent sentence doctrine because the government made no affirmative showing that the likelihood
of harm to the defendant in the form of adverse collateral consequences was so remote as to be insignificant).
Descally may not serve the full measure of his state sentence. The government failed to demonstrate that
there is no likelihood of any collateral effect on his time incarcerated under his state sentence. For example,
in Florida, where Descally committed his crimes, he may be eligible for parole after a certain number of years.
Turning to U.S.S.G. § 5G1.3 and Application Note 2, the parties dispute the amount of time that
should be credited to Descally's federal sentence. Descally argues that he is entitled to a reduction of his
federal sentence based on the amount of time he served on his state sentence up to the time of his federal
sentencing. The government contends that the amount of time to be reduced is limited to the amount of time
he served in state custody after his arrest on federal charges. The government also maintains that Application
Note 2's example is inapplicable to this case because the purpose of section 5G1.3, i.e., to mitigate the
possibility that two separate prosecutions will greatly increase a defendant's sentence,3 is not met in this case.
The government further maintains that Application Note 2 is not applicable because the state and federal
conduct were not identical, and Descally's federal sentence does not exceed his state sentence.
The district court provided the following statement of reasons for refusing to apply Application Note
2 under U.S.S.G. § 5G1.3(b):
Well, I don't—We're talking about a 30-year sentence. Now, I mean, what—unless there's
something miraculous that's going to occur, he's going to serve a substantial portion of that. So
assuming that even the 108 months is a proper sentence, which I certainly think it would be in this
case, I don't see what all these calculations should be about if some of this sentence should run—if
the sentence has to be imposed concurrently under 3G1.3(b). So I'm just kind of missing the point
when we are talking about a long sentence like this.
2
See United States v. Paul Descally, No. 99-4232-BB (11th Cir. July 21, 2000).
3
See Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995).
So if I give him 108 months,4 which he should get, and it runs concurrent with what he's got,
then there we are. I mean he still has all that time he has to serve.
See Sentencing Tr. at 277-78.
The arguments presented here are matters of first impression in this court. The United States Court
of Appeals for the Third Circuit addressed some of the same issues in United States v. Dorsey, 166 F.3d 558(3d Cir.1999) (involving a defendant charged by both state and federal authorities with the same underlying
crime—the illicit possession of a firearm). In Dorsey, the Third Circuit rejected the government's arguments
that Application Note 2 was invalid and determined that, under statutory law and guidelines, a district court
has the discretion to make a federal sentence concurrent with other terms of imprisonment. Id. at 561-63;
see also United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir.1994) (holding that a sentencing court had
authority under section 5G1.3(b) to grant a defendant credit on his federal sentence for all of the time served,
before the federal sentencing, in state custody on a related state charge). The Dorsey court also concluded
that section 5G1.3 did not conflict with 18 U.S.C. § 3585(b), which only allows the Attorney General (by way
of delegation to the Bureau of Prisons) to award custody credit, in a situation where a federal court exercises
its discretion to impose a concurrent sentence and where that sentence must be truly concurrent to a sentence
for a related offense, the subject of Application Note 2. Dorsey, 166 F.3d at 561-63.
Upon review, we adopt the reasoning of the Third Circuit in Dorsey and we agree with Descally's
position that, according to Dorsey and the guideline commentary language ("the court should adjust the
sentence for any period of imprisonment already served as a result of the conduct taken into account in
determining the guideline range for the instant offense"), Application Note 2 is applicable even when the
federal sentence does not exceed that imposed by the state.
Descally was convicted in state court of three of the robberies that formed part of the conspiracy
outlined in the federal plea agreement: (1) convicted and sentenced in state court on July 19, 1994 of the
December 27, 1991 robbery; (2) convicted and sentenced in state court on August 19, 1994 of the November
28, 1991 robbery; and (3) convicted on January 11, 1995 of the December 21, 1992 robbery and sentenced
in state court as a repeat offender due to (1) and (2). See Exh. 1, Presentence Investigation Report at 53-54.
We hold that the district court should have related his sentence back to December 21, 1992, at which time
4
Ultimately the district court sentenced Descally to 100 months, not 108 months which was at the
highest range of the term suggested by the guidelines, to run concurrently with his state sentence from
April 17, 1996, the date of his arrest on the federal charges. The difference between the district court's
approach and the defendant's approach to the construction of Application Note 2 is forty months.
his state imprisonment began on his thirty-year state sentence as a repeat offender on the basis of the three
robbery convictions involved in this conspiracy.
III.
Where the commentary to a guideline section serves to interpret that section or to explain how it is
to be applied, a sentencing court is bound to consider its applications, unless it is plainly erroneous or
inconsistent with the guidelines. Stinson v. United States, 508 U.S. 36, 41-48, 113 S.Ct. 1913, 123 L.Ed.2d
598 (1993). Here, Descally's state sentence arose out of conduct which formed part of the conspiracy to
violate the Hobbs Act, and constituted relevant conduct at the federal sentencing. Therefore, the district court
erred in failing to apply Application Note 2 to U.S.S.G. § 5G1.3(b) and take into account time already served,
before the federal sentencing, for the robbery that constituted part of the same misconduct in violation of the
Hobbs Act.
Accordingly, we VACATE Descally's sentence and REMAND the case to the district court for
resentencing consistent with this opinion.