U.S. v. Fermin, DEFENDANT-APPELLANT

• Decision Date: 01 August 2000
• Docket Number: DEFENDANT-APPELLANT,Docket No. 00-1417
• Citation: 252 F.3d 102
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. WILSON SILVERO GIL FERMIN,
• Court: U.S. Court of Appeals — Second Circuit

Page 102

252 F.3d 102 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. WILSON SILVERO GIL FERMIN, DEFENDANT-APPELLANT.

Docket No. 00-1417

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Submitted: November 27, 2000

Decieded May 29, 2001

Appeal from a sentence imposed by the United States District Court for the Southern District of New York (Richard M. Berman, Judge) following defendant's conviction for illegally re-entering the United States.

Affirmed.

[Copyrighted Material Omitted] Jeffrey A. Udell, Assistant United States Attorney, for Mary Jo White, United States Attorney for the Southern District of New York, N.Y. (Andrea L. Labov, Assistant United States Attorney), for Appellee.

Cecillia D. Wang, The Legal Aid Society Federal Defender Division Appeals Bureau, New York, N.Y., for Defendant-Appellant.

Before: McLAUGHLIN, Pooler, Circuit Judges, and Droney, District Judge.^*

Droney, District Judge

Wilson Silvero Gil Fermin ("Fermin") appeals from a judgment of conviction entered on June 5, 2000, by the United States District Court for the Southern District of New York (Berman, J.). Fermin pled guilty under 8 U.S.C. § 1326(a) and (b)(2) to re-entering the United States illegally after deportation. He was sentenced to a term of imprisonment of 57 months to be served concurrently with the remaining portion of a state sentence arising from a parole violation.¹ At sentencing, the district court declined to reduce Fermin's sentence by the amount of time he had already served on the state parole violation sentence.

The principal issue in this appeal is whether the district court had authority under § 5G1.3(c) of the United States Sentencing Guidelines to "credit" Fermin for the time he had served on the state parole violation sentence. Fermin also argues that the district court improperly decided not to depart downward to achieve the same result.

We affirm and hold that the district court correctly concluded that it lacked the authority to adjust Fermin's sentence under § 5G1.3(c), and that the district court did not misapprehend its authority to depart downward.

I. BACKGROUND

In 1994, after illegally immigrating to the United States from the Dominican Republic, Fermin was convicted of first-degree robbery in New York state court. He subsequently was deported on July 31, 1996, but illegally returned to the United States. In March 1999, Fermin was arrested in New York and detained on state drug possession charges. On May 27, 1999, he pled guilty to possession of a controlled substance and was sentenced to time served.

Fermin's drug arrest occurred while he was still on parole for his robbery conviction. On May 24, 1999, he appeared before a state parole board and was found in violation of his parole conditions because of his unlawful re-entry into the United States. The parole board revoked his parole and ordered that Fermin be incarcerated until August 9, 2000.

On November 2, 1999, while he was serving his sentence for the state parole violation, Fermin was indicted for illegally returning to the United States under 8 U.S.C. §§ 1326(a) and (b)(2).² The indictment charged him with illegally re-entering the United States after having been deported subsequent to a conviction of an aggravated felony, namely, his 1994 state conviction for robbery. On January 13, 2000, he pled guilty to the indictment, and was sentenced on June 2, 2000.

A. The Sentencing Hearing

The presentence report for Fermin calculated a Guidelines range for his violation of 8 U.S.C. § 1326(a) and (b)(2) at 57 to 71 months based on a criminal history category of IV and an adjusted offense level of 21.³ At sentencing, Fermin argued for a concurrent sentence both as to the remaining portion of his state sentence for the parole violation and for the time he had already served on that sentence.⁴ As to the latter, he asked that he be "credited" for this time in two ways.⁵ He argued that under U.S.S.G. § 5G1.3(c) and Application Note 2 to § 5G1.3, the court should subtract from his federal sentence the time already served for his parole violation, or that the court should depart downward.

The court sentenced Fermin to a term of imprisonment of 57 months, to run concurrently with the remaining portion of the state parole violation sentence. It rejected Fermin's argument that he was due a "credit" under Application Note 2 for the time already served. The court also declined to grant Fermin's application for downward departure so as to reduce the sentence by the time Fermin had served.⁶ As to the request for a downward departure,⁷ the district court stated:

I do not feel here either that there are aggravating or mitigating circumstances of a kind or to a degree that are not adequately already taken into consideration by the Sentencing Commission in formulating the guidelines.... The rationale is that the underlying offense here which gave rise to parole was the underlying conviction of robbery in the first degree, not the offense of illegal re-entry.... I am also aware of my discretion to downwardly depart for a combination of circumstances.... I do not feel that this is a situation where a downward departure is warranted based on a combination of factors or circumstances as opposed to any one individual branch put forward.

II. DISCUSSION

On appeal, Fermin makes two arguments. First, he contends that the court erred in holding that it lacked the authority under § 5G1.3(c) of the Guidelines to apply the methodology provided in Application Note 2 of § 5G1.3 of the Guidelines. Second, Fermin argues that the district court was wrong in concluding that a downward departure was not specifically permitted under § 5G1.3(c). In other words, Fermin maintains that § 5G1.3(c) permits a downward departure simply "to achieve the desired degree of concurrency," and a court need not conduct the usual departure analysis under § 5K2.0 of "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."

A. U.S.S.G. § 5G1.3(c) and Application Note 2

1. The Framework of U.S.S.G. § 5G1.3

The Sentencing Reform Act of 1984 provides that "if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively." 18 U.S.C. § 3584(a). Section 5G1.3 of the Guidelines also applies when a court is sentencing a defendant who has been "convicted of committing an offense while subject to an undischarged term of imprisonment for a previous conviction." United States v. Maria, 186 F.3d 65, 68-69 (2d Cir. 1999). Subsection (a) of § 5G1.3 applies when the new offense was committed while the defendant was serving a term of imprisonment, and requires that any new period of imprisonment be consecutive to the pre-existing one. Subsection (b) applies when "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." In that situation, subsection (b) requires that the new sentence run concurrently with the remaining portion of the pre-existing sentence of incarceration. Although subsection (b) does not address time already served on the pre-existing sentence, Application Note 2 provides that the defendant be credited for that time. It states, "When a sentence is imposed pursuant to subsection (b), the 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 if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons." U.S.S.G. § 5G1.3, cmt. n.2; see also United States v. Gonzalez, 192 F.3d 350, 354 (2d Cir. 1999) (describing the approach of subsection (b) and Application Note 2).⁸

Subsection (c) of § 5G1.3 "is a catch-all provision, [which] generally vests broad discretion in the sentencing court in those situations not governed by subsections (a) and (b)." Maria, 186 F.3d at 71.⁹ It provides that in cases not covered by subsections (a) or (b), "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." Several application notes offer additional direction for applying subsection (c). Note 3 provides factors that a district court should consider in determining whether to sentence a defendant to a concurrent, partially concurrent, or a consecutive sentence. Note 4 sets forth the methodology to employ when fashioning a partially concurrent sentence in a subsection (c) case. Note 5 directs courts in complex situations to exercise their discretion under subsection (c) to fashion a "reasonable punishment for the instant offense." Finally, Note 6 provides that if the defendant was on parole, probation, or supervised release at the time of the instant offense, and it is revoked, the sentence for the instant offense should run consecutively to the revocation sentence.

2. Application of the Guidelines

There is no dispute that this case falls under subsection (c). Subsection (a) does not apply because the offense of illegal re-entry was not committed while Fermin was serving a term of imprisonment. Subsection (b) does not apply because "when a criminal defendant is imprisoned as a result of his violation of the terms of his parole, the `offense' that `results' in his imprisonment is, for the purposes of § 5G1.3(b), the underlying prior offense of conviction, not the conduct violative of his parole conditions." United States v. Garcia-Hernandez, 237 F.3d 105, 110 (2d Cir. 2000). Here, the underlying offense thus is Fermin's 1994 state robbery conviction, not his parole violation. Because the robbery...