United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4844
ALVIN TERRY JOHNSON, a/k/a Al,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-97-15-MJG)
Submitted: January 26, 1999
Decided: March 23, 1999
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
Harvey Greenberg, LAW OFFICES OF HARVEY GREENBERG,
Towson, Maryland, for Appellant. Lynne A. Battaglia, United States
Attorney, Jamie M. Bennett, Assistant United States Attorney, Balti-
more, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Alvin Terry Johnson appeals the 216-month sentence he received
after his guilty plea to cocaine conspiracy, 18 U.S.C. § 846 (1994),
arguing that the district court erred in making it consecutive to the
state sentence he was then serving. We affirm in part and dismiss in
part.
On September 27, 1996, Johnson was sentenced in Maryland state
court for manslaughter and a heroin offense. He was given a delayed
reporting date and, when he was released, resumed his part in the con-
spiracy. This resulted in his arrest on October 10, 1996, and his even-
tual guilty plea to the instant offense. Johnson admitted participating
in the conspiracy between June 1995 and his arrest in October 1996.
At sentencing, the government argued for a sentence consecutive
to the state sentence, citing U.S. Sentencing Guidelines Manual
§ 5G1.3(a) (1995), which requires a consecutive sentence when the
instant offense was committed after the defendant was sentenced but
before he began service of a sentence which remains undischarged.
Johnson asked that the district court depart by imposing a sentence
concurrent with the state sentence. Johnson relied on United States v.
Rogers, 897 F.2d 134 (4th Cir. 1990), in which this court considered
the conflict between the district court's authority under 18 U.S.C.
§ 3584 to impose a concurrent sentence on a defendant who is already
serving a sentence and § 5G1.3, which directs the court to impose a
consecutive sentence in certain circumstances. In Rogers, we held that
the sentencing court has authority to impose a concurrent sentence but
must do so only after following the procedures for departure, that is,
by determining that a factor is present which is relevant to the sen-
tence and has not been adequately considered by the Sentencing Com-
mission in formulating the guidelines. See Rogers, 897 F.2d at 137.
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On appeal, Johnson argues that Rogers was wrong in holding that
the district court must depart in order to impose a concurrent sen-
tence. He first contends that the sentencing discretion afforded by
§ 3584 is in no way restricted by § 5G1.3. In his view, it is significant
that § 3584(b) directs the district court to consider the factors set forth
in 18 U.S.C.A. § 3553(a) (West 1985 & Supp. 1998) (which directs
the court to consider certain factors including the guidelines), but not
the factors in 18 U.S.C. § 3553(b) (which requires the court to impose
a sentence within the guidelines or depart from them). He also main-
tains that, if the district court is required to impose a sentence in
accord with § 3553(a) or depart, then § 5G1.3 is not a guideline of the
kind described in § 3553(a)(4), i.e., one which establishes a kind or
range of sentence. Therefore, in his view, the sentencing court may
disregard § 5G1.3 without going through the procedures necessary for
a departure.
Even were we inclined to do so, we could not as a panel overrule
Rogers, and we conclude that the district court properly applied it.
Moreover, the decision not to depart by imposing a concurrent sen-
tence is not reviewable. See United States v. Bayerle, 898 F.2d 28, 31
(4th Cir. 1990).
We therefore affirm the district court's decision to follow Rogers
and dismiss that portion of the appeal which challenges the district
court's decision not to depart to impose a concurrent sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART
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