[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-9442
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D. C. Docket No. 1:96-CR-90-1-HLM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS JOHN QUINONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 11, 1998)
Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
PER CURIAM:
Appellant Thomas J. Quinones was sentenced to two consecutive 18-month
terms of imprisonment following his violation of a condition of two concurrent terms
of supervised release. He appeals, and we affirm.
Background
Quinones was convicted of credit card fraud in the Northern District of Georgia
and sentenced to a prison term followed by a term of supervised release. While
serving this prison term, he was convicted in the District of South Carolina for another
instance of credit card fraud and sentenced to terms of imprisonment and of
supervised release that were to run concurrently with the terms imposed by the
Northern District of Georgia.
While Quinones was serving these concurrent terms of supervised release,
Quinones’s probation officer sought to revoke them on several grounds, including
Quinones’s commission of the felony of unlawfully entering a motor vehicle. The
South Carolina and Georgia cases were consolidated in the Northern District of
Georgia. At a revocation hearing there, the court found (based on Quinones’s
admission) that Quinones had broken into a car for the purpose of stealing a leather
jacket, a Class B violation of supervised-release conditions. See U.S.S.G. §
7B1.1(a)(2). The court revoked the terms and sentenced Quinones to 18 months’
imprisonment for each violation, to be served consecutively.
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Quinones appeals, contending that the district court lacked the discretion to
sentence him to consecutive terms of imprisonment following the revocation of his
concurrent terms of supervised release. We review the district court’s interpretation
of sentencing provisions de novo. United States v. Granderson,
969 F.2d 980, 982
(11th Cir. 1992).
Discussion
This question is one of first impression in this circuit, but not elsewhere. In
United States v. Cotroneo,
89 F.3d 510 (8th Cir.), cert. denied,
117 S. Ct. 533 ( 1996),
the Eighth Circuit resolved this precise issue against the defendant. The court
reasoned that
18 U.S.C. § 3584(a), which governs imposition of multiple terms of
imprisonment, permits a court to order multiple terms to run consecutively.1 Section
3584(a) does not exclude from its operation the imposition of imprisonment terms
following the revocation of terms of supervised release. The court found, moreover,
no statutory or Sentencing Guidelines provision that constricted the discretion that §
3584(a) confers upon the district court in these circumstances. The Eighth Circuit
accordingly concluded that consecutive sentences for violation of conditions of two
terms of supervised release are permissible.
1
Section 3584(a) provides in pertinent part: “If multiple terms of imprisonment are
imposed on a defendant at the same time, . . . the terms may run concurrently or consecutively.”
3
Quinones argues to the contrary that
18 U.S.C. § 3583(e), which governs
modification and revocation of terms of supervised release, narrows the district court’s
discretion at sentencing following a supervised-release violation. That section
provides a laundry list of how a court may modify the conditions or length of a term
of supervised release; Quinones posits that the list does not include the power to alter
the concurrent or consecutive nature of the term of supervised release. Quinones
therefore concludes that the district court could not change the original concurrent
nature of his terms of supervised release.
Alternatively, Quinones asserts that by analogy to U.S.S.G. § 5G1.2(d), only
concurrent sentences could be imposed in his circumstances. That section provides
that sentences imposed on multiple counts of conviction must run concurrently unless
a consecutive sentence is necessary to reach the “total punishment” because the
highest statutory maximum sentence among the counts is below the “total
punishment.” The “total punishment” is determined by Part D of Chapter 3 of the
Guidelines, which directs the court to group counts together and determine a single,
combined offense level and punishment taking into account all the convictions for
which sentence is being imposed. See U.S.S.G. § 3D1.1(a). Here, Quinones
apparently contends, his “total punishment” should have been 18 months because the
violations were due to be grouped for sentencing to produce a possible “total
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punishment” of 12-24 months, from which range the court chose 18 months. Because
his “total punishment” was only 18 months, according to Quinones, the court could
not have used consecutive sentences to arrive at a total prison term of 36 months.
We reject Quinones’s position and embrace the Eighth Circuit’s. The district
court acted within the confines of
18 U.S.C. § 3583(e)(3); it revoked Quinones’s term
of supervised release. But Quinones had two such terms, and the district court could
therefore revoke both and sentence Quinones to a term of imprisonment for each
violation. Whether these terms were to be consecutive or concurrent was a question
that § 3584(a) entrusts to the court’s discretion.
We decline, furthermore, to invoke an analogy to initial sentencing under
U.S.S.G. § 5G1.2 to restrict the district court’s statutorily provided discretion. Section
5G1.2 does not by its terms apply to imposition of terms of imprisonment upon
revocation of supervised release. See U.S.S.G. § 5G1.2 commentary (“This section
specifies the procedure for determining the specific sentence to be formally imposed
on each count in a multiple-count case.”) And the Guidelines are not silent about
revocation; they address it in policy statements. See U.S.S.G. § 7B1.1-.5. Those
policy statements, however, say nothing about concurrence or consecutiveness. This
silence leaves intact the district court’s statutory discretion.
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Conclusion
For the foregoing reasons, the district court’s judgment is affirmed.
AFFIRMED.
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