United States v. Robert Wilson , 436 F. App'x 94 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2608
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UNITED STATES OF AMERICA
v.
ROBERT WILSON,
Appellant
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(Crim. No. 1:09-CR-149-001)
District Judge: Hon. A. Richard Caputo
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Submitted Under Third Circuit L.A.R. 34.1(a),
May 23, 2011
BEFORE: FUENTES, FISHER, and NYGAARD, Circuit Judges.
(Opinion Filed: July 8, 2011)
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OPINION
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FUENTES, Circuit Judge.
Appellant Robert Wilson pled guilty to one count of wire fraud, in violation of 18
U.S.C. § 1343. At his sentencing hearing, Wilson requested that the District Court use its
discretion under § 5G1.3 of the United States Sentencing Guidelines to make his federal
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sentence run concurrent with his state sentence. The District Court denied his request.
For the reasons set forth below, we will affirm.
I.
We write solely for the parties and therefore discuss only the facts necessary to
explain our decision.
Between January of 2001 and April of 2009, Wilson engaged in four fraudulent
schemes that resulted in $343,000 of illegal gain and ultimately led to his November 5,
2009 guilty plea to wire fraud. The schemes consisted of Wilson: (1) inducing others to
provide him with funds to purchase investment properties that he never purchased;
(2)issuing checks from closed accounts; (3) accepting money for renovation projects
without completing the work; and (4) borrowing funds to start a business but failing to
repay the loans. After Wilson’s plea of guilty, the United States Probation Office
prepared a Pre-Sentence Report (“PSR”) in which they calculated his offense level as 20
and his criminal history category as level VI, giving Wilson a guideline imprisonment
range of 70 to 87 months. In light of disagreement over the dollar amount attributable to
Wilson’s fraudulent activities, the parties jointly requested, and the District Court
accepted, an amended guideline imprisonment range of 46 to 57 months.
At sentencing, Wilson argued that the District Court should run his federal
sentence concurrent with a state prison term for which he had already served some time.1
1
The record is inconclusive on how much time Wilson actually served for his state crime.
On March 24, 2008, Wilson was released on bond and on June 19, 2008, his bail was
revoked. He was ultimately sentenced to 9-23 months on July 6, 2009.
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Wilson argued that because his state offense involved similar fraudulent conduct and at
least two of the same victims as his federal offense, the District Court should use its
discretion under § 5G1.3 to impose a concurrent sentence. Wilson had been convicted of
criminal attempt-theft by deception in Pennsylvania state court for filing false insurance
claims on five leased contractor trailers. On July 6, 2009, he was sentenced in state court
to a term of 9 to 23 months of imprisonment. Essentially, Wilson was requesting credit
for the time he already served for his state conviction, but under the rubric of a
concurrent sentence as articulated in § 5G1.3.2 The District Court denied Wilson’s
request and instead imposed a sentence of 65 months’ imprisonment, an eight month
upward departure from the amended advisory sentencing guidelines. The sentence was
warranted, the District Court stated, to reflect the seriousness of the offense, promote
respect for the law, provide just punishment, afford an adequate deterrent, and protect the
public from further crimes by Wilson given his prior history of fraudulent conduct.
Wilson filed this timely appeal.3
II.
District courts have “substantial discretion” to impose a federal sentence
concurrently or consecutively with other sentences being served by a defendant. United
2
Under Section 5G1.3(c), a District Court may adjust a defendant’s sentence downward
in order to arrive at an appropriate total sentence by recognizing previously served
punishment for one crime as serving the purpose of punishment for another. See United
States v. Brannan, 74 F.3d 448, 453 n.6 (3d Cir. 1996).
3
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. §1291 and 18 U.S.C. §3742(a). See United States
v. Lloyd, 469 F.3d 319, 321 (3d Cir. 2006).
3
States v.Velasquez, 304 F.3d 237, 241 (3d Cir. 2002). Under 18 U.S.C. § 3584(a),
multiple terms of imprisonment imposed at the same time are to run concurrently, and
multiple terms of imprisonment imposed at different times are to run consecutively,
unless the court orders or the statute mandates otherwise. In determining whether to
impose consecutive or concurrent sentences, the District Court must consider the §
3553(a) factors and any applicable guidelines or policy statements under the Sentencing
Guidelines. 18 U.S.C. § 3584(b). Specifically, §§ 5G1.3(b) and 5G1.3(c) of the
Sentencing Guidelines are relevant here. Under § 5G1.3(b), if “a term of imprisonment
resulted from another offense that is relevant conduct to the instant offense of
conviction,” the court should “adjust the sentence for any period of imprisonment already
served . . . if the court determines that such period . . . will not be credited to the federal
sentence by the Bureau of Prisons.” If § 5G1.3(b) does not apply, the court may consider
§ 5G1.3(c), which provides that a sentence “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.”
Because the decision to impose consecutive or concurrent sentences is entrusted to
the sound discretion of the District Court, we review such determinations for abuse of
discretion. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.2006).
On appeal, Wilson cites § 5G1.3 of the guidelines generally, but only explicitly
disputes the District Court’s decision to reject a concurrent sentence under § 5G1.3(c). To
ensure a comprehensive review, however, we will consider the District Court’s
evaluation of both §§ 5G1.3(b) and 5G1.3(c).
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At sentencing, Wilson’s only argument was that his state and federal crimes
consisted of similar fraudulent conduct and included at least two overlapping victims. In
considering Wilson’s request, the District Court therefore focused on § 5G1.3(b). After
speaking directly with the Probation Office, the District Court determined that Wilson’s
state conviction for theft by deception was a distinct crime from the instant federal
offense. The conduct resulting in the state conviction involved insurance fraud, whereas
the conduct culminating in the federal conviction involved the four fraudulent schemes
described above. Based on these facts, we find that the District Court did not abuse its
discretion in determining that the state offense did not include relevant conduct to the
federal offense and thus that Wilson’s two sentences should not run concurrently under §
5G1.3(b).4
The District Court did not explicitly mention § 5G1.3(c), but there is no
requirement that district courts make separate and specific findings when considering §
5G1.3(c). United States v. Saintville, 218 F.3d 246, 249 (3d Cir. 2000). The
Commentary for § 5G1.3(c) states that in order to “achieve a reasonable punishment for
the instant offense,” district courts should consider “the factors set forth in 18 U.S.C. §
3584 (referencing 18 U.S.C. § 3553(a))” and be cognizant of the factors set forth in §
5G1.3(c). The record here shows that the District Court evaluated the full spectrum of
Wilson’s criminal conduct. The details and circumstances of Wilson’s state and federal
crimes were elicited. The District Court also explored Wilson’s long history of
4
The District Court noted for the record that any time-served adjustments stemming from
Wilson’s state prison sentence would be properly handled by the Bureau of Prisons.
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fraudulent conduct. The District Court then meaningfully considered each of the §
3553(a) factors. Although the District Court did not make a separate § 5G1.3(c) finding,
it is clear from the record that the Court gave careful consideration to the sentencing
guidelines and to the § 3553(a) factors when it determined on balance, that Wilson’s
federal crime warranted a separate sentence. We find no abuse of discretion.
III.
For the forgoing reasons, we will affirm the judgment of the District Court.
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