U.S. v. Holifield (Two Cases)

• Decision Date: 19 April 1995
• Docket Number: Nos. 94-3424,94-3426 and 94-3425,s. 94-3424
• Citation: 53 F.3d 11
• Parties: 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. UNITED STATES of America v. Robert A. HOLIFIELD, Robert Holifield, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 11

53 F.3d 11

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.

UNITED STATES of America v. Robert A. HOLIFIELD, Robert Holifield, Appellant.

Nos. 94-3424, 94-3426 and 94-3425.

United States Court of Appeals,

Third Circuit.

Argued Jan. 30, 1995.

Decided April 19, 1995.

Karen S. Gerlach (argued), Office of Fed. Public Defender, Pittsburgh, PA, for appellant.

Bonnie R. Schlueter (argued), Office of U.S. Atty., Pittsburgh, PA, for appellee.

Before: SCIRICA, ROTH and SAROKIN, Circuit Judges.

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. Sec. 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. Sec. 3231 (1988). We have jurisdiction under 28 U.S.C. Sec. 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. Sec. 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 Sec. 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. Sec. 994(a)(1)(D) (1988).

The government and Holifield apparently agree that Sec. 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 punishment for the instant offense." U.S.S.G. Sec. 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 Sec. 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. Sec. 5G1.3 (Commentary). ³

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 Sec. 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 Sec. 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, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (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 Sec. 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 Sec. 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. Sec. 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 Sec. 5G1.3 would have been a departure from the guideline range. And although Sec. 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 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. Sec. 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

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 Sec. 5G1.3.

On appeal, the Fourth Circuit followed the methodology of Sec. 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 the Virgin Islands...