United States v. Williams

JOHN M. WALKER, JR., Chief Judge:

Defendant Randy Hutchinson appeals from a June 21, 1999 judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, Senior District Judge) convicting him after a guilty plea of conspiracy to possess cocaine with intent to distribute and sentencing him to twenty years’ imprisonment.¹ On appeal, Hutchinson argues that section 5G1.3(b) of the United States Sentencing Guidelines mandates that his sentence should have been imposed to run concurrently with his existing undischarged state sentence, with credit for time served on that state sentence. We disagree and therefore affirm Hutchinson’s sentence.

BACKGROUND

This prosecution arose from a joint investigation by the Federal Bureau of Investigation and New York Police Department into a large and violent drug distribution gang, the CIC/Cavemen, beginning in mid-1997. In the early 1990s, a street gang known as “Criminals in' Charge” or “CIC” operated from the Cypress Hills Housing Projects in Brooklyn, New York. Headed by Michael King, the CIC enlisted numerous residents of the Cypress Hills Projects to sell drugs. The “CIC/Cavemen” gang came into being when the CIC combined with Timothy Rucker’s Cavemen gang, from the neighboring Louis H. Pink Housing Projects. The combined gangs shared drugs, guns, workers, and a desire to eliminate rival drug dealers. Hutchinson ran a drug distribution operation in Utica, New York that was supplied by the CIC/Cavemen organization in Brooklyn.

In 1995, Hutchinson was arrested and charged in New York state court with attempted possession of 30 grams of cocaine base. He pled guilty and was sentenced in March 1997 to one to four years in state prison. While in prison, Hutchinson and nine other CIC/Cavemen associates were named in the twenty-two count federal indictment at issue here. It charged Hutchinson’s involvement in (1) a drug conspiracy, (2) a continuing criminal enterprise, (3) a racketeering conspiracy, (4) a murder conspiracy, and (5) the use or carrying of a firearm during drug trafficking activity. With roughly eleven months of his state sentence behind him, Hutchinson was transferred to federal custody in January 1998.

Following jury selection, some of the defendants entered global, oral plea agreements with the government. All of the pleas involved sentence bargains under Fed. R. Crim. P. 11(e)(1)(C) (1999) and provided the pleading defendants with substantial benefits. In Hutchinson’s case, in return for avoiding a lengthy and costly trial, the government permitted Hutchinson to plead guilty solely to the drug conspiracy charge. Had Hutchinson gone to trial and been convicted of all of the charged offenses, a life sentence would have been mandatory.² Under the plea agreement’s stipulated sentence, however, Hutchinson faced a certain and significant, but much lighter, twenty-year prison term. The plea agreement made no mention of whether the stipulated federal sentence of twenty year's would be served consecutive to, or concurrent with, the sentence Hutchinson was then serving in state prison.' In the plea agreement, Hutchinson waived his right to appeal the length of his sentence.

There was some dispute in the district court about how the Sentencing Guidelines would apply to Hutchinson’s sentence. At Hutchinson’s January 28, 1999 plea allocution, the district court stated that

I would normally explain what the guidelines are all about and what the estimated guidelines in this case might be. That is superfluous because each of you has entered in an agreement with the government that the government has accepted the plea agreement pursuant to a particular section of the Criminal Procedure law, [whereby the] sentence ... is agreed upon.

After the district court had accepted the plea, Hutchinson argued that the district court should apply U.S.S.G. § 5G1.3(b) to make the federal sentence run concurrently with his existing state sentence and to credit Hutchinson for the time already served on his state sentence. The district court rejected the argument:

With respect to the 5G1.3, I have no doubt that the part[i]es agreed upon a sentence of twenty years, not a sentence of twenty years minus two, three, or whatever time it was that Mr. Hutchinson was doing with respect to the Utica offense. And I just don’t think [] 5G1.3 has any application to that situation....

The district court also denied Hutchinson’s requests for (1) a hearing pursuant to United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979); (2) a downward departure based on family circumstances; and (3) appointment of new counsel. The district court then imposed a twenty-year sentence.

Hutchinson now appeals his sentence.

DISCUSSION

On appeal, Hutchinson’s principal claim of error is that the district court failed to credit him for time served on his state conviction in contravention of section 5G1.3(b) of the United States Sentencing Guidelines. Section 5G1.3(b) states that if there is an undischarged term of imprisonment for an offense that has 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.” Application Note 2 to section 5G1.3 further states that, if a sentence is imposed concurrently under section 5G1.3(b), the district court “should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense.” U.S.S.G. § 5G1.3 cmt. n. 2.

We first hold that we have appellate jurisdiction over this appeal under 18 U.S.C. § 3742(a) and that Hutchinson has not waived his right to appeal the question presented. On the merits, we hold that the district court was required to apply section 5G1.3(b) to Hutchinson’s stipulated sentence, in light of the plea agreement’s failure to address the question. Because the basis of the district court’s refusal to impose a concurrent sentence was unclear, however, we proceed to consider whether Hutchinson would have benefitted from section 5G1.3(b) if the district court had applied it to the Rule 11(e)(1)(C) sentence bargain. We hold that it would have made no difference to his sentence and accordingly affirm the sentence imposed by the district court.

I. Appellate Jurisdiction

The government contends that we lack jurisdiction to review the district court’s failure to apply U.S.S.G. § 5G1.3(b). We disagree.

Our jurisdiction to review sentences in criminal cases is governed by 18 U.S.C. § 3742. Section 3742(a) states in part that “[a] defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence — (1) was imposed in violation of the law; [or] (2) was imposed as a result of an incorrect application of the sentencing guidelines.” 18 U.S.C. § 3742(a). We construe Hutchinson’s appeal to assert either that the district court committed legal error in entirely refusing to apply section 5G1.3(b) or that the district court misapplied it. In any event, we have jurisdiction to hear the appeal under § 3742(a)(1) or (a)(2).

The transcript is ambiguous as to whether the district court viewed section 5G1.3(b) as simply inapplicable to a Rule 11(e)(1)(C) plea agreement or whether it thought that, on the specific facts of this case, section 5G1.3(b) was inapplicable because Hutchinson’s prior offense had not been “fully taken into account” within the meaning of section 5G1.3(b). As we have noted, the district court stated generally that the Guidelines were inapplicable to a Rule 11(e)(1)(C) bargain and at one point stated specifically that “I just don’t think ... 5G1.3 has any application” to such a plea agreement. Elsewhere in the record, however, the district court implied that section 5G1.3 could mandate a concurrent sentence only if the state and federal offenses were the same, ie., comprised the same elements, but that Hutchinson’s offenses were not: “[I]t’s quite clear that what Mr. Hutchinson pleaded to was not the substantive offense of distributing cocaine in Utica, he was pleading to conspiracy to possess with intent to distribute cocaine, which is a separate and distinct offense.”

If the district court erred in its belief that section 5G1.3(b) is always irrelevant to a Rule 11(e)(1)(C) plea, then its failure to apply the Guideline would be an error of law cognizable by this court under 18 U.S.C. § 3742(a)(1). Hutchinson’s brief on appeal argues that the district court made such an error. That contention is analogous to the more familiar complaint that a district court failed to depart downward because it believed it lacked legal authority to do so, a claim that we have held will support our jurisdiction under § 3742(a)(1). See United States v. Adeniyi, 912 F.2d 615, 619 (2d Cir.1990) (“A decision not to depart downward would be ‘in violation of law’ under § 3742(a)(1) if it was based upon constitutionally impermissible considerations or an erroneous interpretation of law, such as a sentencing court’s mistaken conclusion that it lacked the statutory authority to depart.”); United States v. Colon, 884 F.2d 1550, 1552-53 (2d Cir.1989). If, on the other hand, the district court in fact did reach the merits of Hutchinson’s section 5G1.3(b) claim, but erroneously found that the section did not mandate a concurrent sentence in this particular case, then our jurisdiction would be plain under § 3742(a)(2) because the claim would be that the district court had misapplied the Guideline. Our jurisdiction does not depend in any respect on our view of the merits of either question.

As a final preliminary matter, although Hutchinson waived his right to appeal the length of the stipulated sentence, he did not waive a claim on appeal that the sentence should have been imposed concurrently with his state sentence. Indeed, the government concedes that Hutchinson has not waived his right to appeal this issue. See United States v. Brown, 232 F.3d 44, 48 (2d Cir.2000) (per curiam), cert. denied, — U.S. -, 121 S.Ct. 1245, 149 L.Ed.2d 152 (2001); United States v. Velasquez, 136 F.3d 921, 923 n. 1 (2d Cir.1998) (per curiam). Although the government does not expressly concede that Hutchinson also has not waived his claim that he should be given credit .for time served on his state sentence, we find that claim to be subsumed within the broader question whether his sentence should be served concurrently with his state sentence. Cf. United States v. Dorsey, 166 F.3d 558, 563 (3d Cir.1999) (“[T]he court must be able to award [the time-served] credit to make the sentences truly concurrent.”).

Therefore, we conclude that Hutchinson’s allegation of error in the u district court’s refusal to apply, or improper application of, U.S.S.G. § 5G1.3(b) was not waived and is sufficient to invoke our appellate jurisdiction under 18 U.S.C. § 3742(a).

II. Applicability of Section 5G1.3

We face a matter of first impression in this Circuit in considering whether (1) a district court is prohibited from applying section 5G1.3(b) to a sentence stipulated in a Fed. R. Crim. P. 11(e)(1)(C) plea bargain, (2) it is obligated to apply it to such a sentence, or (3) the section is neither obligatory nor prohibited but discretionary. We now hold that a district court is obligated to apply section 5G1.3(b) to Rule 11(e)(1)(C) plea bargains that are mute about how the sentence is to interact with an existing undischarged sentence.

As an initial matter, we are not persuaded by the government and concurrence’s argument that the district court was not empowered to consider section 5G1.3(b) in the present circumstances, on the theory that application of the section would im-permissibly modify the bargain. To be sure, we have held that a district court may accept or reject a Rule 11(e)(1)(C) sentence bargain, but may in no event modify it. See United States v. Cunavelis, 969 F.2d 1419, 1422-23 (2d Cir.1992); United States v. Braimah, 3 F.3d 609, 611 (2d Cir.1993); see also United States v. Kaye, 65 F.3d 240, 244 n. 3 (2d Cir.1995) (dictum), vacated on other grounds, 140 F.3d 86 (2d Cir.1998). The language of Rule 11(e)(1)(C) at the time Cunavelis was decided — and when Hutchinson entered his plea and was sentenced — allowed the parties to stipulate that “a specific sentence is the appropriate disposition of the case.” Fed. R. Crim. P. 11(e)(1)(C) (1999). Rule 11(e)(3) stated, then as now, that “[i]f the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for. in the plea agreement.” Fed. R. Crim. P. 11(e)(3) (1999). Relying in large part on the latter language, Cunavelis rejected the argument that a defendant may enter a Rule 11(e)(1)(C) sentence bargain and then seek a downward departure from the stipulated sentence. The Cunavelis court concluded that such plea agreements are “binding on the district court” and that the court “may accept or reject [the] plea, but it may not modify it.”³ 969 F.2d at 1422.

Nevertheless, we find Cunavelis to be inapplicable to a defendant’s request that a district court apply section 5G1.3(b) to a plea agreement that says nothing about whether the stipulated sentence should run consecutively to or concurrently with an existing undischarged sentence. In applying section 5G1.3(b) under those circumstances, a district court does not “modify” the stipulated sentence, but rather decides how the stipulated sentence is to be implemented vis-a-vis an existing sentence. Because the bargain is silent about whether the parties intended the sentences to run concurrently or consecutively, a district court’s application of section 5G1.3(b) would not “modify” the stipulated sentence at all.⁴ Such a situation is different from that in which the plea agreement expressly states whether the sentence is to run concurrent with or consecutive to an existing sentence. The question in that case must be answered without reference to the Guidelines. The bargained-for sentence controls, and a contrary conclusion based on section 5G1.3(b) would contradict the plea bargain and violate our holding in Cunavelis.

In the absence of a concurrent/consecutive sentence provision in the plea agreement, the Guidelines must continue to control the district court’s sentencing decision.⁵ With respect to the determination whether the sentences are to be served concurrently or consecutively, a district court is in substantially the same position in sentencing as it would be without any agreement. In such case, the court does not return to a pre-Guidelines world, but rather should expect to have its discretion limited as it would be absent an agreement. Section 5G1.3(b) accordingly structures the district court’s discretion in sentencing where the plea agreement provides no guidance about how the sentences should be implemented.

Moreover, a rule requiring application of the Guideline in those circumstances allows the defendant and the government to know ex ante how coexisting sentences will be implemented if they fail to specify a particular treatment in the plea agreement. Conversely, in the event they fail to consider the question at all — as apparently was the case here — they cannot be surprised by the district court’s reliance on the longstanding rules adopted by the Sentencing Commission.

III. Application of Section 5G1.3

Because the district court here appeared uncertain about its authority to apply section 5G1.3, we look further to see whether the Guideline would have helped Hutchinson had the district court thought itself authorized to apply it. We conclude that it would not have done so, because, in setting Hutchinson’s offense level for the present offense, the district court in fact did not take Hutchinson’s prior offense into consideration.

Hutchinson argues in effect that his prior state conviction was considered as “relevant conduct” in setting his offense level. See U.S.S.G. § 1B1.3 (defining “relevant conduct”). Treatment of prior offense conduct as relevant conduct can justify imposition of a concurrent sentence under section 5G1.3(b). See United States v. Garcia-Hernandez, 237 F.3d 105, 109 (2d Cir.2000); Brown, 232 F.3d at 48-49; United States v. Livorsi, 180 F.3d 76, 82-83 (2d Cir.1999).

Those cases belie the district court’s suggestion that section 5G1.3(b) applies only where the past and present offenses are identical, possessing the same elements. Indeed, in Brown, a case decided after the district court rendered judgment, we assumed without discussion that section 5G1.3(b) can be applied to distinct offenses, based on facts very much like the present: a state conviction for attempted criminal sale of a controlled substance and a federal conviction for conspiracy to distribute and possess with intent to distribute heroin. See Brown, 232 F.3d at 45-46, 48-49. Moreover, the use of the word “conduct” in Application Note 2 also indicates that the focus should not be on the legal definitions of the offenses, but rather on whether the conduct underlying the first offense was also the basis for prosecution of the second. See U.S.S.G. § 5G1.3(b) cmt. n. 2 (referring to “conduct taken into account”). Courts in other circuits have also focused on offense conduct, although without explicit discussion of the question. See, e.g., United States v. Bell, 46 F.3d 442, 445-46 (5th Cir.1995); United

States v. Bell, 28 F.3d 615, 618-19 (7th Cir.1994).

Although prior offense conduct might technically qualify as “relevant conduct” in a federal prosecution, a defendant cannot enjoy the benefits of section 5G1.3(b) unless the district court in fact incorporated his prior offense as relevant conduct in the instant prosecution. Section 5G1.3(b)’s reference to “offense(s) that have been fully taken into account in the determination of the- offense level for the instant offense” means that the prior offense must have been actually accounted for by the district court in calculating the defendant’s offense level. The Guideline’s language is not hypothetical or abstract; it does not refer to offenses that, in theory, could be fully taken into account. It suggests that the other offense must have been considered in fact in the defendant’s sentencing.⁶ But cf. United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir.1997) (holding that “the ‘fully taken into account’ requirement of section 5G1.3(b) is satisfied when the undischarged term resulted from an offense that section 1B1.3 requires to be included as relevant conduct, regardless of whether the sentencing court actually took that conduct into account”). The approach we describe is also consistent with our holding in Garcia-Hernandez that the purpose of the Guideline is to prevent “double counting” of the same conduct in two sentences. 237 F.3d at 109. Where the prior offense has not been “counted” in setting the offense level for the present offense, there has been no “double counting,” and the purpose of the Guideline is not implicated.

If, in sentencing Hutchinson, the district court actually considered as “relevant conduct” the conduct underlying Hutchinson’s state conviction, then it was “fully taken into account” for purposes of section 5G1.3(b). Based on our review of the record from Hutchinson’s sentencing, however, we do not believe that the district court actually considered the state offense conduct in imposing Hutchinson’s final federal sentence. Consequently, section 5G1.3(b) does not mandate a concurrent sentence or credit for time served.

To be sure, in describing Hutchinson’s state conviction, the presentence report (“PSR”) states that

[i]n relation to the instant offense, the defendant was arrested by local police in Utica, New York, on March 14, 1995. He possessed 30 grams of crack cocaine, an unspecified amount of marijuana, and a revolver and ammunition at the time of the arrest.... The conduct with respect to this conviction was fully taken into account in determining the offense level for the instant offense.

(Emphasis added). Although this language initially bolsters Hutchinson’s position, it is by no means dispositive. In fact, the PSR calculation of Hutchinson’s offense level was not the basis for his eventual twenty-year sentence; indeed, the PSR concluded that the Guidelines dictated a mandatory life sentence. Unless the district court actually adopts the PSR’s conclusions, the considerations underlying the PSR’s calculations do not ipso facto become those of the district court, and one cannot conclude that something “fully taken into account” in the PSR was also necessarily “fully taken into account” by the district court in passing sentence.⁷ Where a. Rule 11(e)(1)(C) sentence bargain is involved, we will look to whether the district court actually took the prior offense conduct into account in deciding to accept the plea, or substantially adopted a PSR that did so.

In the instant case, although the U.S. Probation Office apparently took the state conviction into account in estimating Hutchinson’s offense level, we do not believe that the state offense played any meaningful role in the sentence actually imposed by the district court. The district court’s statements at the sentencing hearing indicate that the district court was not focused on the drug quantity attributable to Hutchinson or the conduct underlying the attempted possession charge in its decision to accept the plea bargain. In reviewing the sufficiency of the evidence against Hutchinson, the district court stated that it was “skipping” the evidence “dealing with the Utica arrest and the search, and the search warrant and the affidavit of the police.” Instead, the court relied on a variety of Hutchinson’s co-conspirators’ statements describing Hutchinson’s drug dealing operation in Utica and connecting him to the CIC/Cavemen operation in Brooklyn. We therefore find that the state offense conduct was not “fully taken into account” by the district court in sentencing Hutchinson to twenty years’ incarceration.

CONCLUSION

We conclude that the district court was obligated to apply U.S.S.G. § 5G1.3(b), but that, because the state offense was not “fully taken into account” in Hutchinson’s federal sentence, the Guideline does not mandate that his sentence run concurrently with his state sentence. We have considered Hutchinson’s other claims of error and find them to lack merit. The judgment of the district court is therefore affirmed.

1 . Appeals filed by two of Hutchinson's co-defendants, Michael King and Timothy Ruck-er, are dealt with in a separate summary order filed simultaneously with this opinion.

2 . The presentence report calculated an offense level of 47 with a criminal history category of IV, producing a mandatory life sentence. See U.S.S.G. § 5A (sentencing table).

3 . The current version. of Rule 11(e)(1)(C) states that the government and defendant may "agree that a specific sentence or sentencing range is the appropriate disposition of the case.... Such a plea agreement is binding on the court once it is accepted by the court.” Given the last sentence, we see no reason that Cunavelis's holding should not continue to apply under the current version of the Rule.

4 . In essence, the concurrence would adopt a default rule holding that plea bargains that are silent on whether the sentences are to be served concurrently or consecutively must be read to require consecutive sentences. While in some cases this may comport with the intent of the parties, it will not always do so, and by definition will not do so where, as here, the parties concede to having had no intent whatsoever on the issue. That the parties did not decide the question, however, does not absolve the district court of the responsibility for doing so.

5 . We are not faced, of course, with the intermediate case, in which the agreement contains a reference to concurrent or consecutive sentences but that reference is ambiguous.

6 . That does not mean, however, that the prior offense must have been a but-for cause of an increase in the defendant's offense level. The example provided in Application Note 2 to section 5G1.3 suggests as much. There the prior offense is in fact considered as relevant conduct: the quantity of drugs attributable to the defendant is increased to account for the quantity involved in a prior state prosecution. Nevertheless, with or without consideration of the prior drug offense, the defendant's offense level would be the same (14), because the drug quantity table applies that level to a range of drug quantities, which includes the quantities with and without inclusion of the prior offense quantity. See U.S.S.G. § 5G1.3 cmt. n. 2; U.S.S.G. § 2Dl.l(c)(13).

7 . Admittedly, in most cases, a district court will rely very heavily on the PSR in imposing sentence. See Steven A. Fennell & William N. Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presen-tence Reports in Federal Courts, 93 Harv. L. Rev. 1615, 1617 (1980). In such cases, having a PSR that relies on prior offense conduct will also mean that the sentence imposed also actually takes into account that prior offense conduct.