United States v. Fifield ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30299
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00042-DWM
BLAINE TRAVIS FIFIELD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
December 5, 2005—Seattle, Washington
Filed December 30, 2005
Before: Ronald M. Gould and Marsha S. Berzon,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge Berzon
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
16885
16888 UNITED STATES v. FIFIELD
COUNSEL
Anthony R. Gallagher, Federal Defender and John Rhodes,
Assistant Federal Defender, Missoula, Montana, for the
defendant-appellant.
UNITED STATES v. FIFIELD 16889
William W. Mercer, United States Attorney and Kris A.
McLean, Assistant United States Attorney, Missoula, Mon-
tana, for the plaintiff-appellee.
OPINION
BERZON, Circuit Judge:
Blaine Fifield pleaded guilty to one count of felon in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(1), and
one count of unlawful user of a controlled substance in pos-
session of a firearm, in violation of 18 U.S.C. § 922(g)(3).
The district court sentenced him to fifty-four months impris-
onment on each count. The court ordered that these sentences
run concurrently with each other but consecutively to two
sentences imposed previously by a Montana state court.
On appeal, Fifield presents three questions relating to the
district court’s decision to make the federal sentences run
consecutively to the state sentences. First, he argues that
under Federal Rule of Criminal Procedure 32, he was entitled
to specific notice that the district court was considering order-
ing the sentences to run consecutively. Second, he contends
that the district court violated 18 U.S.C. §§ 3584 and 3553 by
failing to state in open court its reasons for deciding to run the
sentences consecutively. Third, he maintains that the decision
to run the sentences consecutively violated his Sixth Amend-
ment right to a jury trial because the decision was based on
facts that were neither found by a jury nor admitted.
We disagree with all three procedural contentions. We do,
however, remand under United States v. Ameline, 409 F.3d
1073 (9th Cir. 2005) (en banc), for a determination of whether
the district court would have imposed a materially different
sentence if it had known that the Sentencing Guidelines were
advisory.
16890 UNITED STATES v. FIFIELD
I.
Blaine Fifield was sentenced in Montana state court, on
March 13, 2003, for Assault with a Weapon, a felony under
Montana law. The sentence, according to the presentence
report, was “5 years deferred.” Under state law, such a sen-
tence means that pronouncement of a sentence of imprison-
ment is deferred for a five-year probationary period, and that
the charge can be dismissed, and no sentence of imprisonment
pronounced, if probation is successfully served. See MONT.
CODE ANN. § 46-18-204. As one of the conditions of his pro-
bation, Fifield was prohibited from possessing any firearm.
Shortly thereafter, on March 20, 2003, Fifield’s probation
officer and local law enforcement officers searched Fifield’s
home and found six firearms, as well as methamphetamine,
marijuana, and drug lab paraphernalia. Fifield tested positive
for the use of methamphetamine and marijuana and admitted
to use of these drugs.
The events of March 20 resulted in the revocation of
Fifield’s probation for his Montana Assault with a Weapon
conviction. In addition, Fifield pleaded guilty in 2003 in state
court to Criminal Possession of Dangerous Drugs, in violation
of Montana law, for the drugs found during the March 20
search. In 2004, Fifield pleaded guilty in federal court to two
additional offenses arising out of the March 20 events: (1)
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1); and (2) unlawful user of a controlled substance
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(3).
On August 14, 2003, Fifield was sentenced in Montana
court to a term of imprisonment of twenty years with twelve
years suspended for his prior Assault with a Weapon convic-
tion.1 In addition, he was sentenced to a suspended term of
1
See MONT. CODE ANN. § 46-18-201 to 204 (outlining the relevant law
relating to suspended and deferred sentences).
UNITED STATES v. FIFIELD 16891
five years for his Criminal Possession of Dangerous Drugs
conviction. The Montana court ordered that the two sentences
run concurrently with each other.
On July 6, 2004, the district court sentenced Fifield for the
two federal offenses, applying the 2003 edition of the United
States Sentencing Guidelines (“Guidelines”) and treating
them as mandatory.2 The district court determined that under
U.S.S.G. § 2K2.1(a)(4)(A), Fifield’s base offense level was
twenty, as he committed the offenses at issue after he was
convicted of Assault with a Weapon, a “felony conviction of
. . . a crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A). In addi-
tion, the district court increased Fifield’s offense level by two
levels, pursuant to § 2K2.1(b)(1)(A), because his offense
involved six firearms. The court then adjusted downward
three levels for acceptance of responsibility to reach a total
offense level of nineteen. It determined that Fifield had a
criminal history category of IV, and that the applicable Guide-
lines range was therefore forty-six to fifty-seven months.
The district court sentenced Fifield to fifty-four months
imprisonment on each count. The court ordered that these sen-
tences run concurrently with each other but consecutively to
the Montana sentences for Assault with a Weapon and Crimi-
nal Possession of Dangerous Drugs.3
2
Unless otherwise indicated, all citations in this opinion are to the 2003
edition of the Guidelines, which became effective November 1, 2003.
3
There is a discrepancy between the sentence pronounced at the sen-
tencing hearing and the written judgment. At the sentencing hearing, the
district court ordered that the federal sentences run consecutively to both
Montana sentences. The judgment, however, states that the federal sen-
tences should run consecutively to the Assault with a Weapon sentence
and concurrently with the Criminal Possession of Dangerous Drugs sen-
tence.
When there is a discrepancy between an unambiguous oral pronounce-
ment of a sentence and the written judgment, the oral pronouncement con-
trols. See United States v. Bergmann, 836 F.2d 1220, 1222 (9th Cir. 1988).
We therefore conclude that Fifield’s federal sentences run consecutively
to both state sentences.
16892 UNITED STATES v. FIFIELD
II.
Fifield first contends that the district court violated Federal
Rule of Criminal Procedure 32 by failing to provide him with
notice that it was considering imposing sentences that would
run consecutively to the state sentences.4
4
As pertinent here, Rule 32 provides:
(h) Notice of Possible Departure from Sentencing Guide-
lines. Before the court may depart from the applicable sentencing
range on a ground not identified for departure either in the pre-
sentence report or in a party’s prehearing submission, the court
must give the parties reasonable notice that it is contemplating
such a departure. The notice must specify any ground on which
the court is contemplating a departure.
(i) Sentencing.
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the defendant’s attor-
ney have read and discussed the presentence report and any
addendum to the report;
(B) must give to the defendant and an attorney for the gov-
ernment a written summary of — or summarize in camera — any
information excluded from the presentence report under Rule
32(d)(3) on which the court will rely in sentencing, and give them
a reasonable opportunity to comment on that information;
(C) must allow the parties’ attorneys to comment on the pro-
bation officer’s determinations and other matters relating to an
appropriate sentence; and
(D) may, for good cause, allow a party to make a new objec-
tion at any time before sentence is imposed.
....
(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court must:
(i) provide the defendant’s attorney an opportunity to speak
on the defendant’s behalf;
(ii) address the defendant personally in order to permit the
defendant to speak or present any information to mitigate the sen-
tence; and
UNITED STATES v. FIFIELD 16893
The record establishes that Fifield received no specific
notice that the court was considering imposing consecutive
sentences, and the government does not so contend. The pre-
sentence report prepared by the United States Probation
Office did not discuss whether the sentences should be con-
current or consecutive, neither party addressed the issue, and
the court did not mention the issue prior to the announcement
of the sentence at the sentencing hearing. Fifield’s argument
is, however, meritless, because Rule 32 neither explicitly nor
implicitly requires any such specific notice under the present
circumstances.
A.
First, no section of Rule 32 explicitly requires such notice.
[1] Section (h), the only section of Rule 32 that explicitly
requires any kind of notice, states that “[b]efore the court may
depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in
a party’s prehearing submission, the court must give the par-
ties reasonable notice that it is contemplating such a depar-
ture.” FED. R. CRIM. P. 32(h).5 In United States v. Williams,
291 F.3d 1180 (9th Cir. 2002), we held that when the imposi-
tion of consecutive sentences is a departure from the Guide-
(iii) provide an attorney for the government an opportunity to
speak equivalent to that of the defendant’s attorney.
FED. R. CRIM. P. 32(h)-(i).
5
We do not decide in this case whether the notice requirement in Rule
32(h) applies after United States v. Booker, 125 S. Ct. 738, 750 (2005). Cf.
United States v. Menyweather, No. 03-50496, 2005 WL 3440800, at *7
(9th Cir. Dec. 16, 2005) (holding that post-Booker, a district court must
still determine whether it has departed from the Guidelines and concluding
that “after Booker, the district court still is ‘required to articulate the rea-
sons for the extent of the departure in sufficiently specific language to
allow appellate review’ ” (internal quotation marks omitted)).
16894 UNITED STATES v. FIFIELD
lines, Rule 32(h) requires specific notice of both the fact that
consecutive sentences are being considered and also the
grounds for the departure. See id. at 1192-93. Contrary to the
assertions of Fifield, however, Williams did not hold more
broadly that specific notice is required any time a court is
considering imposing consecutive sentences. Whether notice
was required by section (h) thus depends on whether the
imposition of consecutive sentences was a departure from the
Guidelines. The Guidelines did not call for concurrent sen-
tences in Fifield’s case, however, and the imposition of con-
secutive sentences was therefore not a departure.
Section 5G1.3 of the Guidelines divides cases in which
defendants are, at the time of sentencing, subject to an exist-
ing undischarged term of imprisonment into three categories,
providing for consecutive sentences for cases falling under
§ 5G1.3(a), concurrent sentences for cases falling under
§ 5G1.3(b), and concurrent, partially concurrent, or consecu-
tive sentences for cases falling under § 5G1.3(c).6 See
6
Section 5G1.3 provides, in full:
(a) If the instant offense was committed while the defendant
was serving a term of imprisonment (including work release, fur-
lough, or escape status) or after sentencing for, but before com-
mencing 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 a term of imprison-
ment resulted from another offense that is relevant conduct to the
instant offense of conviction under the provisions of subsections
(a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense level for the instant
offense under Chapter Two (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant offense shall be
imposed as follows:
(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of impris-
onment if the court determines that such period of imprisonment
will not be credited to the federal sentence by the Bureau of Pris-
ons; and
UNITED STATES v. FIFIELD 16895
U.S.S.G. § 5G1.3. The imposition of consecutive sentences is
thus a departure from the Guidelines only in cases that fall
under § 5G1.3(b).7 See United States v. Kikuyama, 150 F.3d
1210, 1213 (9th Cir. 1998); cf. Williams, 291 F.3d at 1192.
(2) the sentence for the instant offense shall be imposed to
run concurrently to the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case involving an undis-
charged term of imprisonment, the sentence for the instant
offense may be imposed to run concurrently, partially concur-
rently, or consecutively to the prior undischarged term of impris-
onment to achieve a reasonable punishment for the instant
offense.
U.S.S.G. § 5G1.3.
7
At oral argument, Fifield’s counsel stated that § 5G1.3 was amended
in 2004 and that the current version of § 5G1.3 is different from the 2003
version. This statement is incorrect. See U.S.S.G. § 5G1.3 hist. n. (2005)
(noting that the most recent amendment to § 5G1.3 became effective
November 1, 2003). It may be that Fifield’s counsel mistakenly thought
that the “2003 edition” of the Guidelines referred to the edition that
became effective November 1, 2002. The spine of each official Guidelines
manual, however, refers to the year the version became effective. For
example, the United States Sentencing Commission Guidelines Manual
denominated “2004” on its spine states, on the cover, that it
“[i]ncorporat[es] guideline amendments effective November 1, 2004.”
Even under the 2002 edition of the Guidelines, however, Fifield’s argu-
ment that the imposition of consecutive sentences was a departure from
the Guidelines fails. The 2002 edition of the Guidelines would have called
for the imposition of consecutive sentences. See U.S.S.G. § 5G1.3 cmt. n.6
(2002) (“If the defendant was on . . . state probation . . . at the time of the
instant offense, and has had such probation . . . revoked, the sentence for
the instant offense should be imposed to run consecutively to the term
imposed for the violation of probation . . . .”); United States v. Arellano-
Torres, 303 F.3d 1173, 1181 (9th Cir. 2002) (holding that under the 2001
Guidelines, which are identical in all material respects to the 2002 Guide-
lines, application note 6 applied to a defendant who committed his federal
offense while he was on probation for a suspended term of imprisonment
for a state offense that was subsequently revoked). Thus, the imposition
of consecutive sentences would not have constituted a departure from the
2002 Guidelines either.
16896 UNITED STATES v. FIFIELD
[2] The present case falls under § 5G1.3(c), not § 5G1.3(b).
Application Note 3(C) states that “[s]ubsection (c) applies in
cases in which the defendant was on federal or state proba-
tion, parole, or supervised release at the time of the instant
offense and has had such probation, parole, or supervised
release revoked.” Id. § 5G1.3 cmt. n.3(C). Fifield committed
the federal offenses while he was serving a five-year period
of probation. Because the conduct underlying the federal
crimes violated the terms of his probation, the Montana court
revoked his probation and sentenced him to the twenty-year
term with twelve years suspended. Under application note
3(C), therefore, § 5G1.3(c) applies to Fifield’s case.
Fifield contends that § 5G1.3(b) applies because his offense
level was increased on the basis of one of his state convic-
tions, but this contention is incorrect. Section 5G1.3(b)
applies when
subsection (a) does not apply, and a term of impris-
onment resulted from another offense that is relevant
conduct to the instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3 (Relevant Conduct) and that was the basis
for an increase in the offense level for the instant
offense under Chapter Two (Offense Conduct) or
Chapter Three (Adjustments). . . .
U.S.S.G. § 5G1.3(b). Application note 2(B) clarifies that
[s]ubsection (b) does not apply in cases in which the
prior offense increased the Chapter Two or Three
offense level for the instant offense but was not rele-
vant conduct to the instant offense under
§ 1B1.3(a)(1), (a)(2), or (a)(3) (e.g., . . . the prior
offense was a crime of violence for which the defen-
dant received an increased base offense level under
§ 2K2.1 . . .).
UNITED STATES v. FIFIELD 16897
Id. § 5G1.3 cmt. n.2(B).
Fifield’s two undischarged state sentences were for Crimi-
nal Possession of Dangerous Drugs and Assault with a
Weapon. As for the former offense, neither the fact of convic-
tion for Criminal Possession of Dangerous Drugs nor the con-
duct underlying the conviction was the basis for increasing
Fifield’s offense level for the federal offenses. As for the lat-
ter offense, while the fact of conviction for Assault with a
Weapon was the basis for an increase in Fifield’s offense
level pursuant to § 2K2.1(a)(4)(A), application note 2(B) of
§ 5G1.3 makes clear that §5G1.3(b) does not apply, because
the Assault with a Weapon conviction was not relevant con-
duct under § 1B1.3.
Nor was the conduct underlying the Assault with a Weapon
conviction relevant conduct to the instant offense. The
Assault with a Weapon offense was committed well before
the federal offense in which Fifield possessed six firearms and
was based on events that were completely separate from the
events that were the basis for the federal convictions. True,
the March 20 possession of firearms resulted in an increased
offense level. The discovery of the firearms also triggered the
revocation of Fifield’s probation for the Assault with a
Weapon conviction and imposition of the previously deferred
sentence. The resulting state sentence, however, was for the
earlier Assault with a Weapon offense, not for the firearms
found on March 20.
[3] We conclude, therefore, that § 5G1.3(c) applies to
Fifield’s sentence. Because § 5G1.3(c) states that a district
court may make the federal sentence “run concurrently, par-
tially concurrently, or consecutively to the prior undischarged
term of imprisonment,” the district court’s decision to impose
consecutive sentences was not a departure from the Guide-
lines. Consequently, section (h) of Rule 32 did not require
notice that the court was considering imposing consecutive
sentences.
16898 UNITED STATES v. FIFIELD
B.
Rule 32 also does not implicitly require such notice.
[4] We have held that there is an implicit notice require-
ment in Rule 32 for sentencing decisions that are “analog-
[ous]” to an upward departure in that they are “not expressly
contemplated by the guidelines” and are therefore “outside
[of] . . . the range of expectations.” United States v. Lopez,
258 F.3d 1053, 1056 (9th Cir. 2001); see also Burns v. United
States, 501 U.S. 129, 138 (1991) (holding that the notice
requirement now codified in section (h) was implicit in an
earlier version of Rule 32, which did not contain what is now
section (h)); United States v. Wise, 391 F.3d 1027, 1033 (9th
Cir. 2004) (holding that a defendant is entitled to notice that
a court is considering imposing a condition on supervised
release when that condition is not one of the conditions listed
in the Guidelines). When sentencing decisions are expressly
contemplated by the Guidelines, however, we have held that
Rule 32 does not impose an additional specific notice require-
ment. See, e.g., Lopez, 258 F.3d at 1056 (holding that there is
no notice requirement that a court is considering imposing
one of the discretionary conditions on supervised release
listed in the Guidelines).
[5] In the present case, both 18 U.S.C. § 3584 and U.S.S.G.
§ 5G1.3(c) indicate that the court could run Fifield’s federal
sentences concurrently with or consecutively to his state sen-
tences. See 18 U.S.C. § 3584(a) (“[I]f a term of imprisonment
is imposed on a defendant who is already subject to an undis-
charged term of imprisonment, the terms may run concur-
rently or consecutively, except that the terms may not run
consecutively for an attempt and for another offense that was
the sole objective of the attempt.”); U.S.S.G. § 5G1.3(c) (stat-
ing that for cases falling under that subsection, “the sentence
for the instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior undis-
charged term of imprisonment”). Consequently, unlike the
UNITED STATES v. FIFIELD 16899
defendants in Wise and other cases in which we have found
an implicit notice requirement, Fifield had reason to know
that the court might impose consecutive sentences. Such a
decision was expressly contemplated by both the Guidelines
and the relevant statute. We therefore hold that under Rule 32,
Fifield was not entitled to specific notice that the court was
considering imposing federal sentences that would run con-
secutively to Fifield’s undischarged state sentences.
III.
Fifield next argues that the district court violated 18 U.S.C.
§§ 3584 and 3553 by failing to state in open court its reasons
for deciding to run the sentences consecutively. The district
court stated on the record the following reasons for selecting
Fifield’s sentence:
I find that, in my view, a sentence at the low end of
the guidelines would be inappropriate. On the other
hand, I’m not sure that a sentence at the high end of
the guidelines, given the state sentence, and given
the fact that I do believe there is an opportunity for
you to participate in the 500-hour drug treatment
program, that the extreme high end would be appro-
priate.
The sentence that I have fashioned takes into
account the need for punishment, for the offense of
conviction. It takes into account the need to protect
the community. I do believe that you need to get the
lesson about recidivism. You can’t engage in the
kind of behavior that you’ve been involved in.
Unfortunately or fortunately, whatever happened in
the state court, my guess is if the judge up there had
whacked you right off the bat, you may have
changed your behavior. But you got a breaks [sic].
And like all people who get breaks, very few of you
16900 UNITED STATES v. FIFIELD
take advantage of it. And it didn’t take you long to
get back into drugs and guns.
I do think, though, based on the Pre-Sentence
Report, there is some, perhaps, minimal hope that
you can turn things around and I hope that you do.
....
Pursuant to the Sentencing Reform Act of 1984, it
is my judgment that the defendant, Blaine Travis
Fifield, be committed to the custody of the Bureau
of Prisons for a term of 54 months on each count.
Those counts will run concurrent.
This sentence will be consecutive with DC
313103, which is criminal possession of drugs, and
consecutive to DC 02554, assault with a dangerous
weapon.
We hold that this statement was sufficient under §§ 3553 and
3584.
Section 3584(b) provides that “[t]he court, in determining
whether the terms imposed are to be ordered to run concur-
rently or consecutively, shall consider, as to each offense for
which a term of imprisonment is being imposed, the factors
set forth in section 3553(a).” 18 U.S.C. § 3584(b). Section
3553(a), in turn, lists a number of factors that courts must
consider when imposing sentences generally. See id. § 3553(a).8
8
These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the kinds of
sentences and the sentencing range established by the Sentencing Guide-
lines; (5) pertinent policy statements issued by the Sentencing Commis-
sion; (6) the need to avoid unwarranted sentencing disparities among
defendants who have similar criminal records and have been found guilty
of similar conduct; and (7) the need to provide restitution to victims. 18
U.S.C. § 3553(a).
UNITED STATES v. FIFIELD 16901
Section 3553(c) requires that a court “state in open court the
reasons for its imposition of the particular sentence” at the
time of sentencing. Id. § 3553(c). Fifield argues that read
together, these three sections — §§ 3584(b), 3553(a), and
3553(c) — impose a requirement to state in open court the
reasons for making the choice between concurrent and con-
secutive sentences with reference to the factors listed in
§ 3553(a).
[6] United States v. Steffen, 251 F.3d 1273 (9th Cir. 2001),
held that a court’s statement need not specifically justify the
choice between concurrent and consecutive sentences. In Stef-
fen, we held that the following statement of a court satisfied
the requirements of § 3584(b):
I’m satisfied — because of the nature of the offense,
the significant amount of fraud that was perpetrated
on the victims in this case both monetarily and the
nature and circumstances of the fraud and the rela-
tively elaborate scheme that was involved in
defrauding the victims over the period of time
involved here satisfy the Court that — and coupled
with the fact that the defendant is not a stranger to
the criminal justice system and in fact has come very
close to being classified as a career criminal in con-
nection with fraudulent conduct satisfy the Court
that the sentence at the higher end of the guideline
range is appropriate, and I think the recommendation
of the department is proper. It will therefore be the
order and judgment of the Court that the defendant
is sentenced to a term of 70 months, 70 months on
Count III concurrent to the 60 months on Counts I
and II. All will be concurrent with each other and
consecutive to the sentence imposed in Case CR95-
383-01.
Id. at 1278-79. As in Fifield’s case, the explanation in Steffen
did not specifically justify the choice between concurrent and
16902 UNITED STATES v. FIFIELD
consecutive sentences, but did discuss the § 3553(a) factors.
Under Steffen, consequently, the district court’s explanation in
this case was adequate.9
Fifield contends that United States v. Conkins, 9 F.3d 1377(9th Cir. 1993), requires courts specifically to justify their
choice between concurrent and consecutive sentences, but his
argument is unavailing. True, Conkins held that a court’s
statement on the record was deficient and noted that the dis-
trict court did not justify its choice between concurrent and
consecutive sentences. See id. at 1385. The Conkins court,
however, noted many deficiencies in the “cryptic” statement
by the district court in that case, including that the statement
“inadequately explain[ed] the court’s reasons for choosing the
particular sentence it imposed,” and the district court did not
“refer to any of the [§ 3553(a)] factors it was required by stat-
ute to consider.” Id. Particularly in light of Steffen, we read
Conkins as hinging on the failure to explain the sentence with
regard to the § 3553(a) factors at all, despite the specific
directive of § 3584 so requiring.
[7] Our understanding of Conkins and Steffen is bolstered
by the language and legislative history of § 3584(a), which
establishes presumptions that determine whether a sentence is
to run concurrently with or consecutively to another sentence
when a court is silent on the issue. See 18 U.S.C. § 3584(a)
9
United States v. Pedrioli, 931 F.2d 31 (9th Cir. 1991), does not require
that the court’s statement in the record specifically justify the imposition
of consecutive sentences in this case. Pedrioli held that when the Guide-
lines call for concurrent sentences and the court instead imposes consecu-
tive sentences, the district court must follow the usual procedure for
departures, including “that the district court specify the ground for its deci-
sion on the record, that the court make accurate findings of fact as to that
ground, that the ground for departure be based on reasonable factors not
considered by the guidelines, and that the extent of the departure be rea-
sonable.” Id. at 32 n.2. As was established in Part II, however, the imposi-
tion of consecutive sentences in this case was not a departure from the
Guidelines. Thus, Pedrioli does not apply.
UNITED STATES v. FIFIELD 16903
(“Multiple terms of imprisonment imposed at the same time
run concurrently unless the court orders or the statute man-
dates that the terms are to run consecutively. Multiple terms
of imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrent-
ly.”); S. Rep. No. 98-225, at 127 (1983), as reprinted in 1984
U.S.C.C.A.N. 3182, 3310 (“Subsection (a) is intended to be
used as a rule of construction in the cases in which the court
is silent as to whether sentences are consecutive or concur-
rent, in order to avoid litigation on the subject.”); see also
United States v. Chea, 231 F.3d 531, 535 (9th Cir. 2000)
(“Pursuant to 18 U.S.C. § 3584(a), in the absence of an order
to the contrary, a federal sentence is to run consecutively to
a prior state sentence.”); United States v. Joetzki, 952 F.2d
1090, 1098 (9th Cir. 1991) (citing the legislative history with
approval). Because § 3584(a) contemplates that district courts
will sometimes not state whether a sentence is to run concur-
rently with or consecutively to another sentence, it follows
that § 3584(b) could not possibly require that sentencing
courts always specifically justify the choice between concur-
rent and consecutive sentences.
[8] In sum, Fifield’s reliance on Conkins notwithstanding,
the holding of Steffen and the language of § 3584(a) indicate
that §§ 3584 and 3553 do not require that a district court
always specifically justify its choice between concurrent and
consecutive sentences. The court must, however, justify its
choice of the sentence as a whole with reference to the factors
listed in § 3553(a). The statement in the present case passes
muster under §§ 3584 and 3553 because, like the statement
upheld in Steffen, it refers with some case-specific detail to
several factors listed in § 3553(a).
IV.
Fifield next contends that his Sixth Amendment right to a
jury trial was violated at sentencing. He argues that the deci-
sion that his federal sentences should run consecutively to his
16904 UNITED STATES v. FIFIELD
state sentences was made on the basis of facts neither found
by a jury nor admitted. Fifield’s Sixth Amendment argument
is rooted not in the unconstitutionality of the then-mandatory
Guidelines, but rather in what he claims is the unconstitution-
ality of the court’s imposition of consecutive sentences under
18 U.S.C. § 3584 on the basis of judge-found facts.
Fifield is correct that § 3584 contemplates judicial factfind-
ing, which can, in turn, be the basis for the imposition of con-
secutive rather than concurrent sentences. Fifield is incorrect,
however, in stating that the Sixth Amendment requires that
“any fact that enhances a sentence must be pled and proven
to a jury beyond a reasonable doubt.” United States v. Booker
stated that “[w]e have never doubted the authority of a judge
to exercise broad discretion in imposing a sentence within a
statutory range.” 125 S. Ct. 738, 750 (2005). Furthermore,
Booker held that “the selection of particular sentences in
response to differing sets of facts” under an advisory Guide-
lines regime “would not implicate the Sixth Amendment.” Id.
at 742. Judicial factfinding does not, on its own, violate the
Sixth Amendment, even when that factfinding is the basis for
enhancing a defendant’s sentence. Judicial factfinding does
violate the Sixth Amendment, however, when that factfinding
enhances the maximum sentence to which a defendant is sub-
ject. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statu-
tory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”); see also Blakely v. Washington,
542 U.S. 296, 303 (2004) (“[T]he ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.”).
[9] Section 3584 does not require that a court find any par-
ticular fact before imposing consecutive sentences. Rather,
§ 3584 channels a court’s discretion in only two ways, neither
of which implicate the Sixth Amendment. First, § 3584(a)
UNITED STATES v. FIFIELD 16905
states that a court may not impose consecutive sentences “for
an attempt and for another offense that was the sole objective
of the attempt.” 18 U.S.C. § 3584(a). This limitation on a
court’s discretion turns, however, on a determination of law
rather than a determination of fact and therefore presents no
Sixth Amendment problems. Second, § 3584(b) instructs
courts to consider the factors spelled out in § 3553(a) in
deciding whether to impose concurrent or consecutive sen-
tences. See 18 U.S.C. § 3584(b). Section 3584(b) does not,
however, require that a court find any particular facts before
imposing consecutive sentences.
[10] Because, under § 3584, a district court need not find
any particular fact to impose consecutive sentences, the impo-
sition of consecutive sentences does not violate the Sixth
Amendment. Cf. United States v. Dowd, 417 F.3d 1080, 1089
(9th Cir. 2005) (“Because the [Guidelines] provision applied
by the district court already gave it full discretion to impose
a concurrent, partially concurrent or consecutive sentence, . . .
a remand [for resentencing in light of Booker] is not war-
ranted here.”).
V.
[11] Fifield also requests that we issue a limited Ameline
remand in the event that we find none of the preceding argu-
ments availing. Fifield was sentenced before Booker. Because
it is not “possible to reliably determine from the record
whether the sentence imposed would have been materially
different had the district court known that the Guidelines were
advisory,” Ameline, 409 F.3d at 1084, we remand to the dis-
trict court “to answer the question whether the sentence would
have been different had the court known that the Guidelines
were advisory.” Id. at 1079; see also United States v. Moreno-
Hernandez, 419 F.3d 906, 916 (9th Cir. 2005) (“[D]efendants
are entitled to limited remands in all pending direct criminal
appeals involving unpreserved Booker error, whether consti-
tutional or nonconstitutional.”).
16906 UNITED STATES v. FIFIELD
In conclusion, we remand for a determination of whether
the district court would have imposed a materially different
sentence had it known the Guidelines were advisory. We
affirm the sentence on all other grounds.
REMANDED.