United States v. Higgins ( 1997 )


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  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-17-1997
    USA v. Higgins
    Precedential or Non-Precedential:
    Docket
    97-5006
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
    Recommended Citation
    "USA v. Higgins" (1997). 1997 Decisions. Paper 244.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1997/244
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    Filed October 17, 1997
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 97-5006
    UNITED STATES OF AMERICA,
    Appellant.
    v.
    KENNETH HIGGINS
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Cr. Action No. 95-cr-00206)
    Argued on September 25, 1997
    Before: COWEN, ROTH and LEWIS, Circuit Judges
    (Opinion Filed October 17, 1997)
    Faith S. Hochberg,
    United States Attorney
    Kevin McNulty,
    Assistant United States Attorney
    Allan Tananbaum (Argued)
    Assistant United States Attorney
    970 Broad Street
    Room 502
    Newark, NJ 07102
    Attorneys for Appellant
    John H. Yauch, Esquire (Argued)
    Assistant Federal Public Defender
    972 Broad Street
    Newark, NJ 07102
    Attorney for Appellee
    OPINION OF THE COURT
    ROTH, Circuit Judge:
    This is an appeal by the government of a criminal
    sentencing order. The defendant, Kenneth Higgins, was
    sentenced for an offense committed while serving a
    previous term of imprisonment. The district court ordered a
    portion of the sentence to run concurrently with the
    previously imposed sentence. The issue on appeal is
    whether the district court properly construed its discretion
    to order concurrent sentencing in view of Sentencing
    Guideline S 5G1.3. The district court had jurisdiction under
    18 U.S.C. S 3231, and we have jurisdiction over the appeal
    of the sentence pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
    S 3742. Because we find that the district court employed an
    erroneous legal standard, we will vacate the judgment of
    sentence and remand for resentencing.
    I.
    On May 5, 1995, a federal grand jury indicted Kenneth
    Higgins on a charge of conspiring to mail threatening
    communications as prohibited by 18 U.S.C. S 876, in
    violation of 18 U.S.C. S 371. While incarcerated in a
    Maryland state correctional facility, Higgins caused a letter
    to be sent to a corporate executive in New Jersey. The letter
    falsely claimed knowledge of a contract to kill the executive.
    In the letter, Higgins offered for a $2,500 fee to furnish a
    copy of a tape recording which purportedly contained the
    name of the person who wanted the executive dead as well
    as the actual murder solicitation. The executive contacted
    the FBI, which discovered that Higgins had had his
    girlfriend send the letter. When questioned, the girlfriend
    2
    admitted typing and mailing the letter at Higgins' direction.
    The FBI determined that Higgins was responsible for 10
    identical letters which had been sent to executives
    throughout the country.
    Following his indictment, Higgins pled guilty to
    conspiracy to commit mail fraud, a charge carrying a
    statutory maximum sentence of 5 years. At the sentencing
    hearing on December 11, 1996, Higgins did not dispute the
    length of the 5-year term of imprisonment imposed, which
    was less than his Guidelines range of 77 to 96 months.1
    Higgins did request, however, that the court exercise its
    discretion to run all or part of the 5-year sentence
    concurrently to his previously imposed state sentence. In
    response, the government argued that, because Higgins'
    offense was committed while he was serving a term of
    imprisonment, Sentencing Guideline S 5G1.3(a) mandated
    that the 5-year sentence be imposed consecutive to his
    state sentence.
    Citing our decision in United States v. Nottingham, 
    898 F.2d 390
     (3d Cir. 1990), the district court held that,
    notwithstanding the mandatory language of S 5G1.3(a), a
    trial judge had discretion under 18 U.S.C. S 3584(a) to
    order a sentence to run concurrently or consecutively.
    Believing that a 5-year consecutive sentence would be
    excessive punishment in Higgins' case,2 the court ordered
    that 48 months of the sentence would run concurrently to
    his undischarged state sentence and 12 months would run
    consecutively.
    _________________________________________________________________
    1. The Guideline range was a product of the offense level of the mail
    fraud charge and Higgins' long criminal history. Higgins had previously
    been convicted of rape, assault with intent to rape and battery, robbery
    with a deadly weapon, and assault with intent to maim. He had also
    been convicted of a number of offenses committed while in detention.
    Since 1987, he had been serving essentially a 35-year sentence in the
    so-called "Super Max" Maryland Correctional Adjustment Center.
    2. The court found that Higgins, who was already 27 years of age and
    had been in prison from age 17, would not be eligible for release from his
    state sentence for at least 7 to 10 years. The judge stated that
    incarcerating Higgins for an additional 5 years would not be cost
    effective, fair, or just, and that Higgins should exercise this
    "opportunity
    for redemption" while he was still relatively young.
    3
    II.
    Our review of a construction of the Sentencing Guidelines
    is plenary. United States v. Oser, 
    107 F.3d 1080
    , 1083 (3d
    Cir. 1997); United States v. Holifield, 
    53 F.3d 11
    , 13 (3d Cir.
    1995). On appeal, the government argues that the district
    court erred in its reliance on Nottingham and that the court
    did not have discretion to order any portion of Higgins'
    sentence to run concurrently. In particular, the government
    contends that, unlike the version of S 5G1.3(a) criticized in
    Nottingham, the amended S 5G1.3(a) reposits sufficient
    overall discretion with the sentencing court to be
    compatible with 18 U.S.C. S 3584(a). Higgins, on the other
    hand, maintains that S 5G1.3(a) is invalid to the extent that
    it removes any of the trial court's discretion to order
    concurrent sentencing and that the court had discretion in
    any event to order a downward departure from the
    guidelines. We hold that the court below misapplied
    Nottingham and that it misconstrued its discretion under
    S 5G1.3.
    III.
    The United States Sentencing Commission is empowered
    under 28 U.S.C. S 994(a) to promulgate guidelines for
    sentencing courts to use, including "a determination
    whether multiple sentences to terms of imprisonment
    should be ordered to run concurrently or consecutively."
    28 U.S.C. S 994(a)(1)(D) (1994). While not legislative
    enactments, the guidelines are binding on courts with the
    force of law. See Mistretta v. United States, 
    488 U.S. 361
    ,
    391 (1989) ("[T]he Guidelines bind judges and courts in the
    exercise of their uncontested responsibility to pass sentence
    in criminal cases."); Nottingham, 
    898 F.2d at 393
    . Section
    5G1.3 of the guidelines provides:
    S 5G1.3 Imposition of a Sentence on a Defendant
    Subject to an Undischarged Term of Imprisonment
    (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
    4
    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.
    U.S.S.G. S 5G1.3 (1995).
    Thus, in two instances S 5G1.3 removes a sentencing
    court's discretion to impose a concurrent or consecutive
    sentence: (1) when the subsequent offense was committed
    while serving (or awaiting to serve) a term of imprisonment,
    in which case consecutive sentencing is mandatory; and (2)
    when the prior offenses have already been taken into
    account in determining the offense level, in which case
    concurrent sentencing is mandatory. In any other
    circumstances, the choice of a concurrent or a consecutive
    sentence is at the discretion of the district court.
    The district court relied on our decision in United States
    v. Nottingham for the proposition that S 5G1.3(a) is invalid
    because that section, which mandates a consecutive
    sentence, conflicts with 18 U.S.C. S 3584(a), which provides
    generally that a district court has discretion to order either
    a concurrent or consecutive sentence. In Nottingham, the
    defendant had been convicted of a series of offenses
    committed while on parole. At that time, S 5G1.3 provided:
    Convictions on Counts Related to Unexpired Sentences
    If 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
    5
    or more of the instant offense(s) arose out of the same
    transactions or occurrences as the unexpired
    sentences. In the latter case, such instant sentences
    and the unexpired sentences shall run concurrently,
    except to the extent otherwise required by law.
    U.S.S.G. S 5G1.3 (1987). Because the Guideline left no
    discretion to impose concurrently any part of the sentence
    for the new offenses, the district court sentenced the
    defendant to 282 months imprisonment consecutive to the
    15-year balance of his unexpired term. On appeal, the
    defendant argued that the elimination of a trial court's
    discretion to impose a sentence concurrently or
    consecutively was in direct conflict with 18 U.S.C.
    S 3584(a), which provides in relevant part:
    If 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 concurrently or
    consecutively . . . . Multiple terms of imprisonment
    imposed at different times run consecutively unless the
    court orders that the terms are to run concurrently.
    Holding that the Guidelines on the subject of consecutive
    and concurrent sentences "must be consistent with 18
    U.S.C. 3584(a)," we vacated the sentence for the reason
    that S 5G1.3 could not usurp the district court's discretion
    to impose a concurrent sentence. Nottingham, 
    898 F.2d at 394
    .
    The government urges us to distinguish Nottingham on
    the grounds that the version of S 5G1.3 in dispute here is
    substantially different from the version criticized in that
    case. The 1987 version of S 5G1.3 removed all of a trial
    court's discretion to order concurrent sentencing in any
    case where the defendant was serving an unexpired
    sentence. By contrast, under the current S 5G1.3, the
    sentencing court retains discretion to impose a concurrent
    or consecutive sentence in the class of cases where the
    defendant is subject to an undischarged term of
    imprisonment, yet has not committed the instant offense
    while serving or awaiting to serve a term of imprisonment.
    6
    In fact, by the time we decided Nottingham, the
    Sentencing Commission had already amended S 5G1.3. We
    noted that the rationale for this amendment was an
    attempt to reconcile the scope of the Guideline with the
    provisions of 18 U.S.C. S 3584(a). Nottingham, 
    898 F.2d at 395
    . In view, therefore, of the Commission's awareness of
    the conflict between the statute and the Guideline and in
    further view of the subsequent amendments to S 5G1.3,3 we
    conclude that our decision in Nottingham is no longer
    relevant in assessing the validity of the present S 5G1.3(a).
    For this reason, we find that the district court's reliance
    on Nottingham in defining its discretion to impose a portion
    of Higgins' sentence concurrently was misplaced.
    IV.
    Having determined that Nottingham does not govern the
    outcome here, the question remains whether the revised
    S 5G1.3(a) is nevertheless invalid because it deprives a
    sentencing court of some of its discretion to impose
    concurrent or consecutive sentences under 18 U.S.C.
    S 3584(a). Higgins contends that, even if the current version
    of S 5G1.3 has returned a measure of discretion to the
    sentencing courts, the conflict with the statutory authority
    persists. According to Higgins, the court's discretion cannot
    be limited by a sentencing guideline in any way, provided
    the court complies with the terms of S 3584(b) and
    considers the factors in 18 U.S.C. S 3553(a) in its decision
    to impose a sentence concurrently or consecutively to an
    undischarged term. The government argues, however, that
    the guideline is a permissible channeling of a court's
    discretion or, in the alternative, that complete discretion is
    still available through application of the standard Guideline
    departure procedures.
    A Guideline cannot trump a statute with which it
    conflicts. See United States v. Sabarese, 
    71 F.3d 94
    , 96 (3d
    Cir. 1995); Nottingham, 
    898 F.2d at 394
    . However, where
    the text permits, a rule, guideline, or regulation should be
    _________________________________________________________________
    3. The Commission amended S 5G1.3 in 1989, 1991, 1992, 1993, and to
    its present form in 1995.
    7
    interpreted harmoniously with a statute dealing with the
    same regulatory matter. Rice v. Martin Marietta Corp., 
    13 F.3d 1565
    , 1568 (Fed. Cir. 1993); LaVallee Northside Civic
    Ass'n v. Virgin Islands Coastal Zone Management Comm'n,
    
    866 F.2d 616
    , 623 (3d Cir. 1989) (a court should attempt
    to reconcile seemingly discordant statutes and regulations).
    A statute and regulation "should be construed so that effect
    is given to all its provisions, so that no part will be
    inoperative or superfluous, void or insignificant, and so
    that one section will not destroy another unless the
    provision is the result of obvious mistake or error."
    Silverman v. Eastrich Multiple Investor Fund, L.P., 
    51 F.3d 28
    , 31 (3d Cir. 1995) (citation omitted). Thus, a
    construction of S 3584(a) and S 5G1.3(a) is preferred which
    does not require that we find the two provisions to be in
    conflict.
    That a court is provided broad, general discretionary
    powers to impose sentences does not preclude limitation of
    that discretion in certain cases by the Sentencing
    Commission. Section 3584(a) does not by its express terms
    confer limitless discretion on the trial court in all cases.
    Instead, it states that "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" (emphasis added). "One can . . . read the
    statutory words ``may run concurrently or consecutively' as
    nonetheless permitting the Commission to write guidelines
    that say when, and to what extent, terms should be
    concurrent or consecutive." United States v. Flowers, 
    995 F.2d 315
    , 317 (1st Cir. 1993) (Breyer, C.J.); cf. United
    States v. Gondek, 
    65 F.3d 1
     (1st Cir. 1995) (finding no
    clash between the broad discretion under S 5G1.3(c) of the
    Guidelines and a restrictive directive in the application
    notes). We find no inherent conflict between the general
    discretion granted under S 3584(a) and the limitation of
    that discretion in certain instances by the Guidelines. See
    Holifield, 
    53 F.3d at 13
     (discretion employed by a
    sentencing court under 18 U.S.C. S 3584(a) to run a
    sentence consecutively or concurrently is "subject to
    S 5G1.3"); see also Oser, 
    107 F.3d at 1083
     (observing that
    S 5G1.3 guides a district court's discretion). Where the
    Sentencing Guidelines prescribe circumstances, under
    8
    which the court should impose the sentence either
    consecutively or concurrently, a district court is not free to
    exercise unfettered discretion.4
    Our conclusion is reinforced by the reasoning of the
    Supreme Court in United States v. Gonzales, 
    117 S. Ct. 1032
     (1997). At issue in Gonzales was 18 U.S.C. S 924(c),
    which mandates that a sentence, for the crime of using or
    unlawfully carrying a firearm during and in relation to the
    commission of a federal felony, be imposed consecutively to
    any other term of imprisonment. The defendant argued that
    S 924(c) conflicted with the district court's discretion under
    S 3584(a) to run the sentence concurrently. The Court held
    that the two statutory provisions were "entirely consistent"
    because discretion was limited only in a narrow range of
    circumstances. 
    117 S. Ct. at 1036
    . Section 924(c) was not
    in conflict with the broad language of S 3584(a) because "[i]t
    leaves plenty of room for a court to run other sentences --
    whether for state or federal offenses -- concurrently with
    one another pursuant to S 3584(a) and USSG S 5G1.3." 
    Id.
    Similarly, we find that S 5G1.3(a) is not in conflict with
    S 3584(a) merely because the Guideline limits sentencing
    discretion in the exceptional case of an offense committed
    while serving or awaiting a term of imprisonment. In the
    vast majority of circumstances contemplated by S 5G1.3,
    courts retain discretion to run sentences concurrently or
    consecutively.
    Here, Higgins had committed his subsequent mail fraud
    offense while serving a term of imprisonment. The district
    court believed incorrectly that S 5G1.3(a) was invalid
    because it conflicted with S 3584(a) and that the court
    therefore was not constrained to impose a consecutive
    sentence. Higgins' sentence as imposed by the district court
    _________________________________________________________________
    4. This conclusion is consistent with our opinion in United States v.
    Oser, 
    107 F.3d 1080
     (3d Cir. 1997). At issue in Oser was the
    applicability of Guideline S 5G1.3(b), which mandates a concurrent
    sentence where the undischarged term of imprisonment resulted from
    offenses fully taken into account in computation of the new sentence.
    Although this provision is as inhibiting upon a sentencing court's
    discretion as S 5G1.3(a), the issue was not raised in Oser that S 5G1.3(b)
    was in conflict with 18 U.S.C. S 3584(a).
    9
    was based on an erroneous legal standard and must be
    vacated.
    Finally, we are not persuaded by Higgins' contention that
    the reasons discussed by the district court for imposing a
    partially concurrent sentence were sufficient tofind that a
    proper downward departure from the Sentencing Guidelines
    was made. In order to depart from the Guidelines, the court
    must find "an aggravating or mitigating circumstance of a
    kind, or to a degree, not adequately taken into
    consideration by the Sentencing Commission in formulating
    the Guidelines that should result in a sentence different
    from that described." 18 U.S.C. S 3553(b); see also Koon v.
    United States, 
    116 S. Ct. 2035
    , 2044 (1996). In ordering a
    downward departure, the sentencing court must adhere to
    the requirements of 18 U.S.C. S 3553(c)(2), which requires
    that the court state "the specific reason for the imposition
    of a sentence different from that described" by the
    Guidelines. See Oser, 
    107 F.3d at 1087
     (permitting
    departure provided the court "indicates its reason for
    imposing the penalty in such a way as to allow us to see
    that it has considered the [Guideline] methodology")
    (citation omitted). Here, while the district court made
    reference to such factors as Higgins' age and the closeness
    in time of his prior offenses, it neither indicated that these
    factors were present to an exceptional degree nor provided
    a cogent rationale for departure. We find such articulation
    insufficient to satisfy the requirements of S 3553(c)(2).5 On
    _________________________________________________________________
    5. We find it unnecessary to address the government's alternative
    argument that, while S 5G1.3 may conflict with the language of S 3584(a),
    the guideline departure mechanism adequately preserves a court's
    discretion. A few circuits have resolved the apparent conflict in this
    fashion. See, e.g., United States v. Schaefer, 
    107 F.3d 1280
    , 1285 (7th
    Cir. 1997), petition for cert. filed, (U.S. Jul. 3, 1997) (No. 97-5125)
    (holding that "while S 5G1.3(a) creates a presumption in favor of a
    consecutive sentence, sentencing judges are free to depart from the
    Guidelines and order a downward departure, so long as they comply
    with the procedures required for downward departure in general outlined
    in 19 U.S.C. S 3553(c)(2)"); see also Flowers, 
    995 F.2d at 317
    , United
    States v. Shewmaker, 
    936 F.2d 1124
    , 1127-28 (10th Cir. 1991), cert.
    denied, 
    502 U.S. 1037
     (1992); United States v. Stewart, 
    917 F.2d 970
    ,
    972-73 (6th Cir. 1990); United States v. Miller , 
    903 F.2d 341
    , 349 (5th
    Cir. 1990); Fossett, 881 F.2d at 980. We emphasize, however, that the
    power of the district courts to depart from the Sentencing Guidelines is
    not unfettered.
    10
    resentencing, however, the issue of a downward departure
    can be considered by the district court if such an
    application is made.
    V.
    For the foregoing reasons, we will vacate the judgment of
    sentence and remand for resentencing in a manner not
    inconsistent with this opinion and the Sentencing
    Guidelines.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    11