United States v. Esquivel

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2003
Charles R. Fulbruge III
Clerk
No. 02-41590
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROCKY MARCIANO ESQUIVEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-130-1
Before GARWOOD and JONES, Circuit Judges, and ZAINEY,* District
Judge .
PER CURIAM:**
Rocky Marciano Esquivel (“Esquivel”) appeals the sentencing
*
United States District Judge of the Eastern District of
Louisiana, sitting by designation.
**
Pursuant to the 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
following his guilty plea conviction for escape. Esquivel argues
that the district court erred when it concluded that it lacked
authority to order that his sentence run concurrently with a not-
yet-imposed state sentence following revocation of probation.
The district court’s decision not to order a consecutive or
concurrent sentence is reviewed for an abuse of discretion, see
United States v. Richardson, 87 F.3d 706, 710 (5th Cir. 1996), and
whether the district court properly applied the sentencing
guidelines is review de novo. Id. In United States v. Brown, 920
F.2d 1212, 1216 (5th Cir. 1991), we held that: “Whether a sentence
imposed should run consecutively or concurrently is committed to
the sound discretion of the district court, subject to
consideration of the factors set forth in 18 U.S.C. § 3553(a).”
The Government does not dispute that the district court had
the authority to order appellant’s sentence to run concurrently
with the not then imposed state sentence for revocation of
probation. See, e.g., Brown at 1217; United States v. Hernandez,
234 F.3d 252, 256 (5th Cir. 2000); United States v. Butler, No. 98-
30255 (5th Cir. Feb. 4, 1999) (unpublished). The Government
argues, however, that the district court was made aware of its
authority in this respect by appellant’s postsentencing motion and
denied that motion in the proper exercise of its discretion.
Because the district court denied Esquivel’s postsentencing
motion without explanation, its rationale for the denial is
2
impossible to determine.1 In light of the ambiguity, we remand the
case for reconsideration of the sentence. See United States v.
Garcia-Ortiz, 310 F.3d 792, 795-96 (5th Cir. 2002); Butler; United
States v. Stone, No. 02-51221 (5th Cir. Aug. 8, 2002)
(unpublished). The only issue on remand is whether the district
court recognized that it had the discretion to impose the current
sentence, but refused to do so. If the district court was aware of
its discretion but determined that a consecutive sentence was
appropriate, then the original sentence should stand. However, if
the district court believed that it lacked the authority to impose
a concurrent sentence, Esquivel should be resentenced with the
1
At the sentencing hearing, defense counsel requested that the
court make its sentence concurrent with any sentence to be imposed
on the then pending state revocation of probation. The court
responded “I can’t do that. I can’t prospectively do that. I’d
like to because this looks like a mess. And I’d like to give him
lower than eighteen months [the bottom of the guideline range]
actually . . . .” The court then invited defense counsel to file
something “if in the next ten days you can find out what’s going
on” and “[s]ee what’s happening with the State stuff.” Defense
counsel did so, filing a motion requesting that his federal
sentence be made concurrent with his prospective state sentence.
The first part of this motion advised that the state had not yet
revoked his probation. The final part of the motion cited Brown
and Hernandez as authority to make the federal sentence concurrent
to the anticipated state sentence. The motion recites that the
Government opposed it, but does not indicate on what basis(no
opposition was filed). So far as the record reflects, the
Government did not otherwise ever take a position on appellant’s
request, nor did the probation department. We have been informed
by the Government that on or about November 22, 2002, while this
appeal was pending, appellant’s state probation was revoked and he
was sentenced to a period of confinement from which he was released
to federal custody (to begin serving his instant federal sentence)
on or about February 24, 2003.
3
district court’s full awareness of its discretionary authority
(which the Government does not dispute the district court would
have on remand as here ordered). We take no position on what
decision the district court should make in respect to exercising
its said discretionary authority.
REMANDED FOR RECONSIDERATION OF SENTENCE.
4