United States v. Mack Devaney , 992 F.2d 75 ( 1993 )

WELLFORD, Senior Circuit Judge.

Mack Devaney appeals his sentence following a Rule 11 plea agreement concerning his unlawful possession of a firearm as a convicted felon. More specifically, the government charged Devaney with

making a false statement to a firearms dealer in connection with the acquisition of a firearm, an offense punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce, that is, a firearm; that is, one loaded Browning model 425RV .380 caliber semiautomatic pistol, serial number 07361, in violation of Title 18 United States Code, Section 922(G)(1) and 924(A)(2).

Joint Appendix 20.

When called upon by the sentencing judge at the Rule 11 hearing to set forth the government’s case, the prosecutor first referred to a 1991 Tennessee state court indictment charging defendant with the theft of a boat valued at more than $1,000 and an “attempt to commit aggravated robbery.” The latter state offense centered around the arrest and the finding of Devaney’s possession of a concealed (and loaded) weapon, which purportedly was involved in travel, “effecting interstate commerce.” Joint Appendix 21. A further reference was made to defendant’s prior 1990 conviction in federal court of making a false statement to a federal firearms dealer. Devaney expressed no disagreement with the government’s summary of his recent record of offenses, both federal and state, nor to the fact that he was on parole at the time of the federal offense at issue.

The district court inquired as to whether Devaney understood that his guilty plea to the federal offense was “not going to help [his] potential of getting out of the state institution on early release,” and Devaney responded affirmatively. The district court also advised that his sentence “could be enhanced or increased due to any prior convictions.”

Following acceptance of the plea agreement, the district court revoked the previous sentence and imposed a new sentence which made no reference to whether the federal sentence would run concurrent with, or consecutive to, his state sentence. The sentence imposed was within the guideline range. It is the consecutive or concurrent aspect of the federal sentence¹ that is challenged on this appeal.

After imposition of sentence and a brief recess, defendant’s counsel raised the issue of whether the federal sentence could be served concurrently with the state sentence. The following exchange took page:

DEFENSE COUNSEL: Your Honor, I guess a point of clarification — and if I am

wrong on it we would request it, is the running of this time with the state charges.

I understand from the probation office that his state sentence that he is serving now would run through the summer of 1995---- We are asking that the federal sentence run concurrent with that.

THE COURT: I don’t see how I can do that.

DEFENSE COUNSEL: So it would be consecutive then?

THE COURT: Yes.

(emphasis added).

Devaney’s principal argument is that the district court ordered the sentence to run consecutively because it was under the mistaken assumption that it had no discretion to order the federal sentence to run concurrently with the state sentence. To support this conclusion, the defendant points to (1) the prosecution’s statement that Devaney had been cooperative, and (2) the court’s statement emphasized above: “I don’t see how I can do that.”

Based upon the overall context of the sentencing hearing, however, we are not persuaded that the district judge was operating under a misapprehension that the federal sentence was mandated to be a consecutive one. We think the more reasonable inference is that the judge simply meant that, under the circumstances, he believed a concurrent sentence was inappropriate.

The parties agree that the sentencing judge had discretion to order the sentences to run concurrently, had he thought it appropriate. 18 U.S.C. § 3584. Since we conclude that there is no basis to assume that the district court judge felt he lacked authority to order a concurrent sentence, the only remaining question is whether he abused his discretion by not doing so.

There is ample indication in the record that the district court considered the proper factors and circumstances when addressing Devaney’s sentence. Title 18, United States Code § 3553 outlines several factors judges should consider when determining a proper sentence, including “just punishment” and “adequate deterrence to criminal conduct.” 18 U.S.C. §§ 3553(a)(2)(A), (B). Twice during sentencing, Judge Jordan indicated that the sentence imposed would “afford an adequate deterrence and provide just punishment.” During the same discussion, the judge noted that the sentence should run consecutively. Ordering the sentence to run concurrently would have reduced the federal sentence by nearly three-fourths in favor of a defendant who had been on parole when he committed the offense. Therefore, we think it clear that the district judge exercised his discretion with respect to ordering consecutive sentences.

Decisions whether to order consecutive or concurrent sentences are reviewed for abuse of discretion. United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 2034, 114 L.Ed.2d 119 (1991); see also United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989) (employing abuse of discretion standard in downward departure case).

Section 5G1.3 of the United States Sentencing Guidelines applies when the court must impose a sentence on a defendant “subject to an undischarged term of imprisonment.” In cases such as this, the guideline requires that “the sentence for the instant offense shall be imposed to run consecutively to the prior unexpired term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.” USSG § 5G1.3(c). Devaney does not contend that either the 44 month original sentence or the four month add-on sentence exceeded the limits imposed by the sentencing guidelines, nor was the sentence unreasonable under the circumstances.

We note, moreover, that Devaney made no motion for modification of the sentence, following its entry, on the grounds that the district court misunderstood its authority to direct it to be served concurrently with the state sentence. Consequently, we AFFIRM the district court’s order that the federal sentence should run consecutively with the state sentence.

1 . Judge Jordan observed that the sentence "will afford adequate deterrence and provide just punishment.”