United States v. Robert Holifield

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-19-1995
United States v Robert Holifield
Precedential or Non-Precedential:
Docket 94-3424
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 94-3424 & 94-3426
________________
UNITED STATES OF AMERICA
v.
ROBERT HOLIFIELD, a/k/a Jim Davis,
a/k/a Philip Sharp, a/k/a David Jones
Robert Holifield,
Appellant
___________
No. 94-3425
___________
UNITED STATES OF AMERICA
v.
ROBERT A. HOLIFIELD
Robert Holifield,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 94-cr-00003J,
94-cr-00011J & 94-cr-00012J)
___________________
Argued January 30, 1995
Before: SCIRICA, ROTH and SAROKIN, Circuit Judges
(Filed April 19, 1995)
KAREN S. GERLACH, ESQUIRE (Argued)
Office of the Federal Public Defender
960 Penn Avenue
415 Convention Tower
Pittsburgh, Pennsylvania 15222
Attorney for Appellant
BONNIE R. SCHLUETER, ESQUIRE (Argued)
Office of the United States Attorney
633 United States Post Office & Courthouse
Pittsburgh, Pennsylvania 15219
Attorney for Appellee
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
Defendant Robert Holifield pled guilty in 1994 to five
counts of wire fraud in violation of 18 U.S.C. § 1343 (Supp. V
1993). The sole issue on appeal is whether the district court
acted within its discretion in its application of the United
States Sentencing Guidelines. We will affirm.
I.
From March 13, 1992, to June 12, 1992, Holifield
engaged in a wire fraud scheme in the Middle and Western
Districts of Pennsylvania. Holifield telephoned various persons,
falsely representing himself to be a corporate officer of Diamond
Marketing Company, V.I.P. Promotions, and other companies. After
advising them they had won prizes through a sweepstakes drawing,
Holifield told them that it was necessary to pay an advance fee
to cover expenses and taxes on the prize. He then instructed
them to wire the money to Western Union offices in Pennsylvania
and Georgia to persons that he claimed were company associates.
The scheme caused losses to five individuals totaling more than
$25,000.
Two years earlier, from December 1, 1989, through
November 1, 1990, Holifield engaged in a similar scheme in the
Northern District of Georgia, this time purportedly as a salesman
for International Marketers, Incorporated. Holifield also
trained others to be salespersons for IMI. Three victims in this
scheme lost a total of $2,700. The cases from the Northern
District of Georgia and the Middle District of Pennsylvania were
transferred to the Western District of Pennsylvania under Federal
Rule of Criminal Procedure 20 and were consolidated for purposes
of disposition ("the Pennsylvania charges").
At the time the Pennsylvania charges were filed,
Holifield was serving a 21-month sentence for another wire fraud
scheme in which he posed as an Internal Revenue Service agent
during February 1993. That charge was filed in the District of
Colorado, and Holifield pled guilty in August 1993.
As we have noted, Holifield later pled guilty to five
counts of wire fraud in the Western District of Pennsylvania.
The guideline range for each count was 15-21 months imprisonment.
He was sentenced to 15 months on each count, each to run
concurrently and also concurrently with the remaining time on the
Colorado sentence, which was four months.
The district court had jurisdiction pursuant to 18
U.S.C. § 3231 (1988). We have jurisdiction under 28 U.S.C. §
1291 (1988). Our review of the construction of the Sentencing
Guidelines is plenary. United States v. Nottingham, 898 F.2d
390, 392 (3d Cir. 1990).
II.
Under 18 U.S.C. § 3584 (1988), a sentencing court is
permitted to order a defendant's sentence to run either
concurrently or consecutively to another sentence imposed at the
same time or to an earlier, undischarged term of imprisonment.
That discretion is subject to § 5G1.3 of the United States
Sentencing Guidelines, which was promulgated in response to the
statutory duty imposed upon the Sentencing Commission to include
in the guidelines "a determination whether multiple sentences to
terms of imprisonment should be ordered to run concurrently or
consecutively." 28 U.S.C. § 994(a)(1)(D) (1988).
The government and Holifield apparently agree that §
5G1.3(c) governs this dispute.1 Subsection (c) provides that
"the sentence for the instant offense shall be imposed to run
consecutively to the prior undischarged term of imprisonment to
the extent necessary to achieve a reasonable incremental
1
. Subsection (a) of § 5G1.3 requires consecutive sentences when
the sentence is for a crime committed while the defendant was
serving a term of imprisonment, or after sentencing for, but
before commencing service of, such term of imprisonment.
Subsection (b) applies when subsection (a) does not apply, and
calls for concurrent sentences when the undischarged term of
imprisonment resulted from an offense that has been fully taken
into account in the determination of the offense level for the
instant offense.
punishment for the instant offense." U.S.S.G. § 5G1.3(c) (Policy
Statement) (emphasis added).2 The Commentary's Application Note
to subsection (c) states that a consecutive sentence is not
required when reasonable incremental punishment can be achieved
through the use of a concurrent sentence. The note then explains
what is meant by "reasonable incremental punishment":
To the extent practicable, the court should
consider a reasonable incremental penalty to
be a sentence for the instant offense that
results in a combined sentence of
imprisonment that approximates the total
punishment that would have been imposed under
§ 5G1.2 (Sentencing on Multiple Counts of
Conviction) had all of the offenses been
federal offenses for which sentences were
being imposed at the same time.
Id. § 5G1.3 (Commentary).3
2
. The policy statements and commentary contained in the
guidelines are binding on the federal courts. See, e.g., Stinson
v. United States, 113 S. Ct. 1913, 1919 (1993) (commentary "must
be given 'controlling weight unless . . . plainly erroneous or
inconsistent'" with the guidelines); Williams v. United States,
503 U.S. 193, 201 (1992) (policy statement serves as "an
authoritative guide to the meaning of the applicable Guideline").
3
. The Commission has provided illustrations of how § 5G1.3 is
to work. In one illustration a guideline range for the instant
federal offense is 24-30 months. The court determines that a
total punishment of 36 months would appropriately reflect the
instant federal offense and the offense resulting in the
undischarged term of imprisonment. The undischarged sentence is
an indeterminate term of imprisonment with a 60-month maximum, of
which 10 months have been served by the defendant. In that case,
according to the illustration, a sentence of 26 months
imprisonment, to be served concurrently with the undischarged
sentence, "would (1) be within the guideline range for the
instant federal offense, and (2) achieve an appropriate total
punishment (36 months)." U.S.S.G. § 5G1.3 (Illustration A).
III.
Holifield argued, and the district court apparently
agreed, that had the sentences on the Pennsylvania and Colorado
charges been imposed at the same time, the maximum sentence he
could have received would have been 24 months. At the time
Holifield was sentenced on the Pennsylvania charges, he had
served 17 of the 21 months on the Colorado offense. Thus he
argued that § 5G1.3 required that his sentence on the
Pennsylvania charges run no more than seven months and
concurrently with his undischarged sentence, or three months and
consecutively to the remaining four months of his undischarged
sentence. In either case, Holifield contended that § 5G1.3
required that he serve no more total time than he would have
served had he been sentenced on all the offenses at the same time
(24 months). In addition, Holifield argued that any sentence
resulting in a greater total punishment was an upward departure
from the guidelines and required prior notice in accordance with
Burns v. United States, 501 U.S. 129, 138-39 (1991). As we have
noted, the district court disagreed and Holifield raises the same
issues on appeal.
The government responds that Congress intended to vest
district court judges with discretion to run sentences
concurrently or consecutively. Although the government concedes
§ 5G1.3 must be considered by the district court, it claims that
a strict application of that section's methodology is not
necessary.
A.
Section 5G1.3 provides guidance in determining whether
to run a sentence concurrently or consecutively. While it
appears to permit a downward departure from the applicable
guideline range to meet its objectives, it does not create a
sentencing scheme in itself nor does it require a downward
departure. The Commentary to § 5G1.3 states:
Additionally, this methodology does not,
itself, require the court to depart from the
guideline range established for the instant
federal offense. Rather, this methodology is
meant to assist the court in determining the
appropriate sentence (e.g., the appropriate
point within the applicable guideline range,
whether to order the sentence to run
concurrently or consecutively to the
undischarged term of imprisonment, or whether
a departure is warranted).
U.S.S.G. § 5G1.3 (Commentary) (emphasis added).
As the final clause in this part of the Commentary
suggests, sentencing Holifield to less than 15 months to meet the
general objectives of § 5G1.3 would have been a departure from
the guideline range. And although § 5G1.3 would permit a
departure, the Commentary clearly states that the methodology
"does not, itself, require the court to depart."4
This is also evident in one of the illustrations
provided by the Sentencing Commission. In fact, although the
4
. Holifield's sentence was within the applicable guideline
range for the instant offense. The fact that the sentence
resulted in a period of incarceration longer than the "total
punishment" calculated under § 5G1.3 does not make it an upward
departure. Thus, Holifield's argument that there was a departure
requiring notice and cause is without merit.
figures are different, the illustration discusses a sentencing
situation similar to the one the district court faced here:
The applicable guideline range for the
instant federal offense is 24-30 months. The
court determines that a total punishment of
36 months' imprisonment would appropriately
reflect the instant federal offense and the
offense resulting in the undischarged term of
imprisonment. The undischarged term of
imprisonment is an indeterminate sentence
with a 60-month maximum. At the time of
sentencing on the instant federal offense,
the defendant has served 22 months on the
undischarged term of imprisonment. In this
case, a sentence of 24 months to be served
concurrently with the remainder of the
undischarged term of imprisonment would be
the lowest sentence imposable without
departure for the instant federal offense.
Id. § 5G1.3 (Illustration D).
With no departure from the guidelines, the defendant in
the illustration would serve a total of 46 months, even though a
total of 36 months would appropriately reflect the two offenses.
While departure may be justified in such a circumstance, we
believe that if departure was required, the Sentencing Commission
clearly would have said so.5
5
. In fact, this position was taken by John Steer, General
Counsel to the United States Sentencing Commission, in a letter
cited in Holifield's brief. Asked about downward departures in
this circumstance under § 5G1.3, Steer wrote:
Occasionally, a downward departure may be
necessary to make this provision work
properly. For example, where the defendant
has been in state custody for a long time, a
downward departure may be the only feasible
way to achieve an appropriate total
punishment, assuming the court wishes to
employ a departure to achieve the desired
objective.
The Court of Appeals for the Fourth Circuit reached the
same conclusion in a remarkably similar case. In United States
v. Wiley-Dunaway, 40 F.3d 67 (4th Cir. 1994), the defendant
embezzled $54,883 in West Virginia before her actions were
discovered. She fled to the Virgin Islands, where under an
assumed name she embezzled another $52,279. She pled guilty in
the Virgin Islands district court and received a 21-month
sentence.6
After she was sentenced, the defendant was indicted for
her West Virginia crimes. She pled guilty in federal court in
West Virginia and received a 15-month sentence to run consecutive
to the Virgin Islands federal sentence, which had less than three
months remaining. The district court, in sentencing, did not
address § 5G1.3.
On appeal, the Fourth Circuit followed the methodology
of § 5G1.3(c). The court noted that the sentencing range for the
instant offense was 12 to 18 months, and the defendant argued the
maximum she could have received for the combined offenses was 24
months. Subtracting the 21-month sentence she had received for
(..continued)
Letter from John Steer, General Counsel, United States Sentencing
Commission, to Tony Garoppolo, Deputy Chief U.S. Probation
Officer 8 (January 6, 1994) (emphasis added).
6
. The defendant also pled guilty to a Virgin Islands
territorial offense for which she received a 60-month sentence to
run concurrently with the federal sentence. At the time of
sentencing for the West Virginia offenses, she had only four
months remaining until she became eligible for parole for this
territorial offense. United States v. Wiley-Dunaway, 40 F.3d 67,
69 (4th Cir. 1994).
the Virgin Islands federal offense, the defendant contended she
could only receive a 3-month "reasonable incremental punishment"
for the instant offense. The Fourth Circuit rejected the claim,
holding that:
[T]he minimum range for the instant West
Virginia offense is 12 months. Accordingly,
the minimum sentence to which Wiley-Dunaway
could have been sentenced under these
assumptions, without a downward departure, is
a 12-month sentence to run concurrently with
the remainder of the term imposed by the
District of the Virgin Islands, and
consecutively thereafter.
Id. at 71. The court remanded the case to the district court,
but only because it had not considered § 5G1.3 at the time of
sentencing. Id. at 71-72.
It is important to note the methodology of § 5G1.3
vests discretion in the trial judge. It does not require a
departure from the guideline range for the instant offense.
Thus, when a defendant has been in custody for a substantial
amount of time and the sentencing judge chooses not to depart,
his total time served may be greater than it would have been had
he been sentenced for all his crimes at once. In a letter, John
Steer, General Counsel to the United States Sentencing
Commission, indicated that a downward departure may be desirable
when the increase is simply because of a delay in the defendant's
trial or sentencing. See Letter from John Steer, General
Counsel, United States Sentencing Commission, to Tony Garoppolo,
Deputy Chief U.S. Probation Officer 8-9 (January 6, 1994). Yet,
as the Fourth Circuit noted, "While that position has merit, it
does not dictate the result or require a downward departure
. . . ." Wiley-Dunaway, 40 F.3d at 71.
In this case, the sentencing court adhered to the
methodology prescribed by § 5G1.3. Discussion of the application
of § 5G1.3 spans fifty pages of the transcript of the sentencing
hearing, as the court and prosecution and defense counsel
proceeded step-by-step through the requirements of the guideline.
See App. at 95-145. The court determined that § 5G1.3(c) applied
to this case, not § 5G1.3(b), as defense counsel claimed. Id. at
112, 114. The court also accepted the government's position that
the instant offenses required a sentence range of 15 to 21
months. Id. at 95. The government and defense then agreed the
defendant had only four months remaining on his sentence for the
Colorado offense. Id. at 97-99, 113-114. The parties noted it
was uncertain whether, by combining the instant offenses with the
Colorado offense, the total sentence would have been a maximum of
21 or 24 months. Id. at 107, 115, 124, 142.
After those calculations, the court sentenced the
defendant to 15 months on each count, to be served concurrently
with each other and concurrently with the undischarged sentence
on the Colorado charge. Although the court did not resolve the
issue of whether 21 or 24 months was the proper combined maximum
sentence, such a precise determination was unnecessary, given
that the minimum sentence of 15 months on the instant offenses,
coupled with the 17-month sentence already served, would surpass
either the 21- or 24-month combined sentence. The court noted
its 15-month concurrent sentence was "the lowest possible
sentence [the defendant] could have received under subsection C
[of § 5G1.3]. The Court could have gone no lower except had I
departed and, in fact, I see no circumstances that would have
warranted departure nor have any been set forth." Id. at 150-51.
We are satisfied that the district court fully followed
the procedures suggested by § 5G1.3(c). Although the defendant
did not receive a "combined sentence of imprisonment that
approximates the total punishment that would have been imposed
under § 5G1.2," such a sentence could not have been imposed here
without a departure from the guidelines. As we have noted, such
a departure is not required under § 5G1.3. See discussion part
III.A; § 5G1.3 (Commentary).
Furthermore, the government points out that this case
demonstrates the wisdom of leaving discretion in the hands of the
district court. When Holifield pled guilty to the Colorado
charge in August 1993, he chose not to disclose his illegal
conduct from 1989 to 1992. Had Holifield come forward with that
information in Colorado, he could have had all the offenses
combined. Thus in this case, the increased total punishment is
directly a result of a delay in the discovery of the offenses, a
factor entirely in the control of the defendant.
B.
Although we find the district court followed the §
5G1.3(c) methodology, we would reach the same result here even if
the district court had considered but rejected application of
that methodology. As we have stated, the commentary to § 5G1.3
provides: "To the extent practicable, the court should consider
a reasonable incremental penalty to be a sentence for the instant
offense that results in a combined sentence of imprisonment that
approximates the total punishment that would have been imposed
under § 5G1.2 . . . ." (emphasis added).
The Court of Appeals for the Ninth Circuit has noted
the "should consider" language of the commentary "falls somewhere
between the 'may consider' language in the 1989 amendment and the
'shall impose' mandate of the 1991 version." United States v.
Redman, 35 F.3d 437, 440-41 (9th Cir. 1994), cert. denied, 115 S.
Ct. 922 (1995). The Ninth Circuit concluded this language means
that a district court "may decline to impose the sentence
suggested by the commentary's methodology, if it has a good
reason for doing so." Id. at 441.
[T]he court must attempt to calculate the
reasonable incremental punishment that would
be imposed under the commentary methodology.
If that calculation is not possible or if the
court finds that there is a reason not to
impose the suggested penalty, it may use
another method to determine what sentence it
will impose. The court must, however, state
its reasons for abandoning the commentary
methodology in such a way as to allow us to
see that it has considered the methodology.
Id. We agree with this analysis and join the majority of
circuits that have addressed this question in concluding that
although the district court must calculate the "reasonable
incremental punishment" according to the methodology, it need not
impose that penalty.7 Instead, the court may employ a different
method in determining the sentence as long as it indicates its
reasons for not employing the commentary methodology.
In this case, the district court went through the
methodology step-by-step with government and defense counsel
before imposing its sentence. Furthermore, the court listed
several factors that warranted a more severe sentence. The court
noted the defendant's prior offense "had not been fully taken
into account" in determining the offense level for the instant
convictions. App. at 151-52. Furthermore, the court stated most
7
. See United States v. Wiley-Dunaway, 40 F.3d 67, 71-72 (4th
Cir. 1994) (citations omitted) (§ 5G1.3 "only requires that the
district court 'consider' such a sentence 'to the extent
practicable' to fashion a 'reasonable incremental
punishment.' . . . [T]he district court retains the right to
depart from this suggestion in accordance with the Sentencing
Guidelines."); United States v. Torrez, 40 F.3d 84, 87 (5th Cir.
1994) ("[E]ven if the district court had considered this
provision, it would have been free to decline to follow the
suggested methodology."); United States v. Coleman, 15 F.3d 610,
613 (6th Cir. 1994) ("[B]ecause the methodology 'is meant to
assist the court in determining the appropriate sentence,' it
will not always be necessary to follow the precise methodology
called for under § 5G1.3 . . . since there may be circumstances
which will warrant the court in resorting to a simpler method of
achieving a result which is the practical equivalent of the more
complex computations."); United States v. Redman, 35 F.3d 437,
441 (9th Cir. 1994) ("[I]f the court finds that there is a reason
not to impose the suggested penalty, it may use another method to
determine what sentence it will impose."), cert. denied, 115 S.
Ct. 922 (1995); United States v. Johnson, 40 F.3d 1079, 1084
(10th Cir. 1994) (citation omitted) ("[C]ourts have recognized
that 'it will not always be necessary to follow the precise
methodology called for under § 5G1.3 . . . .'"). But see United
States v. Duranseau, 26 F.3d 804, 810-11 (8th Cir.) (noting if
methodology other than that in § 5G1.3 is used, the district
court must employ a departure analysis), cert denied, 115 S. Ct.
341 (1994).
of the victims were elderly and the financial hardship the
defendant caused was probably "irremediable." Id. at 152-53.
Finally, the court noted the defendant's conduct was "parasitic
and outrageous" and he had not shown any remorse for his actions.
Id. Thus, although the district court properly followed the §
5G1.3 methodology, we believe it also listed more than sufficient
reasons for departing from that methodology if it had chosen to
do so.
IV.
We hold that the sentencing court properly applied the
methodology of § 5G1.3, and was within its discretion when it
chose not to depart from the guideline range of sentencing.
Furthermore, we conclude that the sentencing court is not bound
to follow that methodology as long as it indicates the rationale
for its decision. For the foregoing reasons, we will affirm the
judgment of conviction and sentence of the district court.