U.S. v. Nottingham

• Citation: 898 F.2d 390
• Decision Date: 19 March 1990
• Docket Number: No. 89-5553,89-5553
• Parties: UNITED STATES of America v. Robert Andrew NOTTINGHAM, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 390

898 F.2d 390

UNITED STATES of America v. Robert Andrew NOTTINGHAM, Appellant.

No. 89-5553.

United States Court of Appeals, Third Circuit.

Argued Nov. 14, 1989.

Decided March 19, 1990.

Richard Coughlin (argued), Asst. Federal Public Defender, Camden, N.J., for appellant.

Marion Percell (argued), Edna Ball Axelrod, Chief, Appeals Div., U.S. Atty's Office, Newark, N.J., for appellee.

Before HIGGINBOTHAM, Chief Judge, ^* SCIRICA, Circuit Judge, and HUTTON, District Judge. ^**

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is an appeal from a criminal sentence imposed under the sentencing guidelines. The issue is whether sentencing guideline 5G1.3 mandated the district court to order that defendant's sentence run consecutively to the unexpired term he was serving for a parole violation. ¹ The underlying issue is whether guideline 5G1.3, by limiting the discretion of the district court in this situation, conflicted with the enabling legislation, 18 U.S.C. Sec. 3584 (1988).

I.

On March 30, 1988, Robert Nottingham was paroled under the mandatory release program from federal prison where he had been incarcerated as a consequence of his third conviction for bank robbery. After his release, he went on a crime spree in several states. Among the criminal acts committed were kidnapping, bank robbery, robbery and auto theft. On July 21, 1988, the defendant was arrested after robbing the Citizens First National Bank in Paramus, New Jersey. Subsequently, the defendant provided a statement outlining the commission of several crimes. He was indicted in the District of New Jersey and charged with kidnapping, auto theft and two bank robberies. He was also charged with bank robberies in the Eastern District of Pennsylvania and the Eastern District of Virginia. The charges in Virginia and Pennsylvania were transferred to the District of New Jersey for disposition in accordance with Rule 20 of the Federal Rules of Criminal Procedure.

Nottingham was under mandatory release supervision when he committed these offenses. In December 1988, before he was sentenced for the current offenses, his mandatory release status was revoked and he was returned to prison to serve the balance of the fifteen-year term originally imposed by the United States District Court for the District of Maryland on February 21, 1975.

On March 30, 1989, pursuant to a negotiated plea agreement, defendant pled guilty to two counts of bank robbery in New Jersey as well as to the bank robbery charges in Virginia and Pennsylvania. 18 U.S.C. Sec. 2113(a)-(b) (1988).

In the pre-sentence report, Nottingham was identified as a career offender by virtue of his three prior bank robbery convictions a categorization he does not deny. Although the guidelines now permit a two-level reduction in the guideline range for acceptance of responsibility by a career offender (guideline 4B1.1 (November 1, 1989)), at the time of sentencing Nottingham was not entitled to such reduction, United States v. Huff, 873 F.2d 709, 713-14 (3d Cir.1989). Based upon his offense level of 34 and his criminal history category of VI, both derived in part from his career offender status, the guideline imprisonment range for all counts was 262 to 327 months.

At sentencing on June 9, 1989, Nottingham argued that his sentences for these offenses should be concurrent to the term he was serving as a parole violator. Defendant maintained that the sentencing statute vested the district court with discretion to impose either consecutive or concurrent sentences and that guideline 5G1.3 conflicted with the statute. Nottingham also argued that guideline 5G1.3 permitted the imposition of concurrent sentences when the unexpired term resulted from a parole violation involving the same conduct as the new offenses. The district court disagreed, concluding that the sentencing guidelines eliminated its discretion to impose concurrent sentences, and sentenced Nottingham to 282 months imprisonment to be served consecutively to the unexpired term. The judge commented, however, that he was imposing the consecutive sentence because he felt compelled to do so but that he was otherwise "inclined" to order the sentences to run concurrently. Nottingham filed a timely notice of appeal.

When the appeal raises a question of law or requires construction of the guidelines, our standard of review is plenary. See United States v. Ortiz, 878 F.2d 125, 126-27 (3d Cir.1989). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982) and 18 U.S.C. Sec. 3742(a)(1)-(2) (1988). ²

II.

The government relies on guideline 5G1.3, which provided:

Convictions on Counts Related to Unexpired Sentences

If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law.

Commentary

This section reflects the statutory presumption that sentences imposed at different times ordinarily run consecutively. See 18 U.S.C. Sec. 3584(a). This presumption does not apply when the new counts arise out of the same transaction or occurrence as a prior conviction.

Departure would be warranted when independent prosecutions produce anomalous results that circumvent or defeat the intent of the guidelines.

At the time of sentencing, Nottingham was serving an unexpired sentence. Defendant contends that the current offenses arose out of the same "transactions or occurrences" as the unexpired sentence. We believe that they did not.

On February 21, 1975, Nottingham received a sentence of fifteen years imprisonment for a bank robbery conviction in the District of Maryland. After serving almost six years, he was released on parole. As a result of a new bank robbery conviction in Florida state court, Nottingham was returned to federal prison and served over five more years. As we have noted, he was paroled on mandatory release supervision on March 30, 1988. Therefore, he was on parole when the current offenses were committed. As a result of conviction on these offenses, Nottingham's parole was revoked, effective December 7, 1988, and he was returned to prison.

Nottingham contends that the instant offenses arose out of the same "transactions or occurrences" as his unexpired sentence--by reason of his return to prison under the parole violation--and, therefore, that the consecutive sentence mandate of guideline 5G1.3 does not apply. We disagree. The unexpired sentence arose out of a Maryland bank robbery, not the various crimes that underlie the instant convictions. See United States v. Darud, 886 F.2d 1034, 1036 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 747, 107 L.Ed.2d 764 (1990). Therefore, absent other reasons, guideline 5G1.3 would apply in this case.

III.

Nottingham's second contention is that guideline 5G1.3 directly conflicts with the Sentencing Reform Act of 1984. He relies on 18 U.S.C. Sec. 3584 (1988), which provides:

(a) ... If multiple terms of imprisonment are imposed on a defendant at the same time, or 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, except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the attempt. Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.

(b) ... The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).

(c) ... Multiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.

(emphasis added).

The issue is whether the district court has discretion, absent a departure, to impose either concurrent or consecutive sentences to the undischarged term of imprisonment. Because guideline 5G1.3 would not permit a concurrent sentence in this situation, we must examine the explicit language and the statutory scheme of the Sentencing Reform Act of 1984 to determine whether the elimination of discretion is proper.

We begin by noting that the sentencing guidelines are not legislative enactments but have the force of law. 28 U.S.C.A. Secs. 991-998 (West 1985 & Supp.1989); see United States v. Mistretta, 488 U.S. 361, 109 S.Ct. 647, 664, 102 L.Ed.2d 714 (1989) (guidelines analogous to court rules). To the extent that the enabling legislation contains specific direction, the guidelines must comport with that direction. See 28 U.S.C.A. Sec. 994(a) (guidelines and policy statements promulgated by Sentencing Commission must be "consistent with all pertinent provisions of [title 28] and title 18").

In this case, the enabling legislation is quite specific. Section 3584(a) grants discretion to the trial court to impose consecutive or concurrent sentences and Sec. 3584(b) directs that the court's decision be informed by the factors listed in 18 U.S.C. Sec. 3553(a). The factors set forth in Sec. 3553(a) contain no specific direction or presumption that a particular sentence be served consecutively or concurrently to an unexpired term. Therefore, the relevant statutory sections do not mandate the district court to impose a consecutive term in this situation. See United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989) (in decision...