U.S. v. Maria, Docket No. 98-1699

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-1699
• Citation: 186 F.3d 65
• Parties: (2nd Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. ARIS MARIA, aka Luis A. Rivera, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 65

186 F.3d 65 (2nd Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. ARIS MARIA, aka Luis A. Rivera, Defendant-Appellant.

Docket No. 98-1699

August Term, 1998

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued June 1, 1999

Decided: August 05, 1999

Appeal from a final judgment of conviction rendered in the United States District Court for the Southern District of New York (Cedarbaum, J.) imposing a sentence of 70 months imprisonment to run consecutively to a 48-month state prison term based on a parole violation involving the same conduct.

The judgment of the district court is vacated and the case remanded for reconsideration of appellant's sentence.

DAVID A. LEWIS, The Legal Aid Society Federal Defender Division Appeals Bureau, New York, NY, for Appellant.

DAVID GREENWALD, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, Lewis J. Liman, Assistant United States Attorney, on the brief), for Appellee.

Before: MESKILL and WALKER, Circuit Judges, and TRAGER, District Judge^*

TRAGER, District Judge:

Defendant appeals from a judgment of conviction entered on December 30, 1998 in the United States District Court for the Southern District of New York (Cedarbaum, J.). Defendant was charged on September 26, 1996, in a one-count indictment, with illegally reentering the United States without the permission of the Attorney General, in violation of 8 U.S.C. §1326. On July 31, 1997, defendant entered a plea of guilty to the indictment. On December 7, 1998, the district court sentenced defendant to 70 months' imprisonment, to be followed by two years' supervised release, and a $100 special assessment. The district court ordered that the federal sentence run consecutively to a 48-month State prison term for a violation of parole involving the same illegal re-entry, as well as other misconduct, because of its view that "a concurrent sentence was not permissible under the[] circumstances."

Background

On June 7, 1995, defendant, a native of the Dominican Republic, was deported from the United States for the second time. The deportation followed defendant's New York State convictions in 1994, on separate indictments, for criminal sale of a controlled substance in the second degree in violation of N.Y. Penal Law §220.41, and criminal possession of a controlled substance in the second degree in violation of N.Y. Penal Law §220.18, for which he was sentenced to four years to life in prison and subsequently placed on parole. Defendant had previously been deported some eleven years earlier, but had illegally reentered the country at some point thereafter.

Shortly after his second deportation in June 1995, defendant illegally returned to the United States. On November 13, 1995, defendant was arrested in Manhattan after having punched a person in the stomach. The assault resulted in the State's citing defendant for violating the conditions of his parole. Defendant was also charged by the State with violating his parole for having illegally reentered the United States. Defendant was released pending the adjudication of his parole violation.

One month after his November 1995 arrest, defendant was again arrested, this time for entering his wife's apartment without her permission and destroying her property. Defendant's wife had separated from him one month earlier and obtained an order of protection against him because he was often "physically abusive." Defendant was arrested for a third time in January 1996 after defendant again returned to his wife's apartment. When the police arrived in response to defendant's wife's call for help, defendant attempted to evade arrest by hiding on the ledge of a sixth floor window. While doing so, defendant lost his balance and fell six stories, breaking his spine, both hips, his right foot and left arm. Although defendant was not paralyzed by the fall, he suffered serious and debilitating injuries; he now walks with a limp, takes pain medication regularly, and is completely incontinent.

On August 28, 1996, defendant's State parole was revoked, and he was sentenced to four years of imprisonment. New York State authorities also directed that defendant be referred immediately to the Immigration and Naturalization Service ("INS"). After beginning service of a four-year sentence for his violation of parole, defendant was indicted on September 26, 1996 by a federal grand jury in the Southern District of New York for illegal reentry into the United States. Pursuant to a writ of habeas corpus ad prosequendum, defendant was transferred to federal custody to face this charge. On April 24, 1997, defendant was arraigned and, on July 31, 1997, defendant entered a plea of guilty.

After defendant entered his guilty plea, the United States Probation Office prepared a Presentence Investigation Report ("PSR") which calculated defendant's Sentencing Guidelines range as 70 to 87 months. Prior to the sentencing proceedings, defendant moved for a downward departure on account of his medical condition arguing that that condition made imprisonment more onerous to him - specifically, that his incontinence rendered him subject to "embarrassment and humiliation among the prison population." Defendant also argued that, due to his condition, it would cost far more to incarcerate him than it would the ordinary inmate. After determining that defendant had made no showing that he would receive better care in State custody, in administrative detention pending deportation, at liberty in the Dominican Republic, or under house arrest in the United States than he would in federal prison, the district court denied the application for a downward departure on this ground.¹

At sentencing, defendant also argued that under United States Sentencing Guidelines ("U.S.S.G.") §5G1.3(b), the district court was required to impose a concurrent sentence, or, in the alternative, that Application Note 6 to §5G1.3 did not require the court to impose a consecutive sentence, i.e., that the court retained the discretion to impose a concurrent sentence. The district court rejected both arguments and concluded that Note 6 required it to impose a sentence to run fully consecutively to defendant's four-year state sentence.

Discussion

Defendant no longer contends that a concurrent sentence is mandated by U.S.S.G. §5G1.3(b), but still maintains that the district court erred when it concluded that it did not have the discretion to sentence him to a concurrent sentence under Application Note 6 to §5G1.3(c).² The government argues that the district court correctly determined that Application Note 6 to the Guidelines forecloses the possibility of a concurrent sentence in this case.

(1)

Section 5G1.3 of the Sentencing Guidelines governs the imposition of a sentence on defendants who have been convicted of committing a crime while subject to an undischarged term of imprisonment for a previous conviction. Subsections (a) and (b) both state mandatory requirements, while subsection (c) is permissive. Subsection (a) provides that the sentence for an offense "committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment . . . shall be imposed to run consecutively to the undischarged term of imprisonment." U.S.S.G. §5G1.3(a) (emphasis added). Under subsection (b), "[i]f subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have 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." Id. at §5G1.3(b) (emphasis added).

If neither of subsections (a) or (b) apply, then subsection (c), labeled a policy statement, governs. That subsection provides that "[i]n any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." Id. at §5G1.3(c). This provision clearly vests broad discretionary authority in the sentencing court.

Despite the broad language of §5G1.3(c), the government contends that Application Note 6 to §5G1.3 controls the resolution of this case and that Note 6 requires a consecutive sentence. Note 6 states that where a defendant commits a federal offense while on federal or state probation, parole, or supervised release, and such probation, parole, or supervised release has been revoked, "the sentence for the instant offense should be imposed to run consecutively to the term imposed for the violation of probation, parole, or supervised release in order to provide an incremental penalty for the violation of probation, parole, or supervised release." U.S.S.G. §5G1.3, Application Note 6 (emphasis added). The government argues that where the conditions of Note 6 are met, Note 6 requires that the sentencing court impose a consecutive sentence.

The parties agree that §5G1.3(c) applies to this case.³ It is also undisputed that this case presents a factual background squarely within the scenario envisioned by the Sentencing Commission when it drafted Application Note 6. The issue remains whether, in light of the wide discretion granted by subsection (c), Application Note 6 requires the sentencing court to impose a consecutive sentence, or whether the district court retains the discretion to impose a concurrent or partially concurrent sentence.⁴

(2)

As §5G1.3(c) contemplates a grant of discretion to the sentencing court, the district court's conclusion that imposition of a consecutive sentence was required by Application Note 6 can only be affirmed if Note 6 is, in fact, mandatory. As this involves a purely legal question concerning the proper...