U.S. v. Shewmaker

• Decision Date: 24 June 1991
• Docket Number: Nos. 90-3207,90-3215,s. 90-3207
• Citation: 936 F.2d 1124
• Parties: UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Robert J. SHEWMAKER, Sr., Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1124

936 F.2d 1124

UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Robert J. SHEWMAKER, Sr., Defendant-Appellee and Cross-Appellant.

Nos. 90-3207, 90-3215.

United States Court of Appeals, Tenth Circuit.

June 24, 1991.

Submitted on the briefs: ^*

Kenneth W. Starr, Sol. Gen., Dept. of Justice, Washington, D.C., Lee Thompson, U.S. Atty., Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan., for plaintiff-appellant and cross-appellee.

Michael M. Jackson, Topeka, Kan., for defendant-appellee and cross-appellant.

Before TACHA, BALDOCK and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

In September 1989, the Kansas Bureau of Investigation (KBI) discovered a marijuana field in Allen County, Kansas. Upon further investigation, the government discovered that defendant Robert J. Shewmaker, Sr. was the supervisor of a marijuana farming and processing enterprise with fields in six Kansas counties. Defendant pled guilty to one count of conspiracy to plant, cultivate, grow, harvest and possess marijuana with the intent to distribute, 21 U.S.C. Secs. 846, 802 & 812. The Sentencing Guidelines applied because the offense occurred after November 1, 1987. See 28 U.S.C. Sec. 994(a); United States Sentencing Commission, Guidelines Manual (Nov.1990) [hereinafter U.S.S.G.]. The government appeals defendant's sentence, contending that the court did not comply with Sentencing Guideline Sec. 5G1.3. And defendant cross-appeals, raising several Guideline issues. The government's argument is well-taken, and we remand. On remand, the district court is instructed simultaneously to vacate the sentence and resentence in accordance with this opinion.

I. Standard of Review

In reviewing a district court's application of the Sentencing Guidelines to the facts, we apply a due deference standard, yet we review de novo questions of law. See 18 U.S.C. Sec. 3742(e). See also United States v. Banashefski, 928 F.2d 349, 351 (10th Cir.1991) (citing United States v. Smith, 900 F.2d 1442, 1445 (10th Cir.1990) and United States v. Kirk, 894 F.2d 1162, 1163 (10th Cir.1990)). "We begin, as with statutory interpretation, with the language of the Guidelines, and move to the Commentary, and Supplementary Illustrations in instances of ambiguity." Banashefski, 928 F.2d at 351 (citing Smith, 900 F.2d at 1446-47). Regarding factual determinations made by the district court, we apply a "clearly erroneous" standard of review. See United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 88, 112 L.Ed.2d 60 (1990); United States v. Beaulieu, 893 F.2d 1177, 1181-82 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990).

II. The Government's Appeal, No. 90-3207

On May 5, 1986, in the federal district court in Savannah, Georgia, defendant was convicted on drug charges resulting from his importation of approximately 17,000 pounds of marijuana into the United States. Defendant was sentenced on separate counts to concurrent sentences totaling twenty-five years imprisonment, but was released on bond pending appeal. Defendant absconded and remained a fugitive until April 1989, when he was arrested in Ontario, Canada. In October 1989, he was sentenced to an additional consecutive five-year term for failure to return, 18 U.S.C. Sec. 3146.

In this case, the district court applied the Guidelines and sentenced defendant to thirty years imprisonment to run concurrently with the previous sentences imposed by the federal district court in Georgia. The government appeals, contending that Guideline Sec. 5G1.3 requires defendant's new sentence to run consecutively with the prior sentences because the instant offense occurred while he was serving the prior sentences. Our jurisdiction to entertain this issue arises under 18 U.S.C. Sec. 3742(b). Section 3742(b) allows the government to appeal a final sentence that was "imposed in violation of law [or] as a result of an incorrect application of the sentencing guidelines...." We review de novo the district court's determination to sentence concurrently because it presents a pure question of law. See United States v. Kuntz, 908 F.2d 655, 656-57 (10th Cir.1990) (citing United States v. La Guardia, 902 F.2d 1010, 1012 (1st Cir.1990)).

Section 5G1.3 provides: "If the instant offense was committed while the defendant was serving a term of imprisonment (including ... escape status), the sentence for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment." Because defendant was on escape status from the prior sentence when he committed the instant offense, the Guidelines would appear to require that his sentences run consecutively. The district court, however, sentenced defendant to a concurrent sentence, relying on United States v. Wills, 881 F.2d 823 (9th Cir.1989). The Wills court held that 18 U.S.C. Sec. 3584(a), irrespective of Guideline Sec. 5G1.3, allows the sentencing court "discretion to impose a concurrent or consecutive sentence, as a matter of law...." Id. at 826. See also United States v. Nottingham, 898 F.2d 390 (3d Cir.1990). Section 3584(a) provides: "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...." Although Sec. 3584(a) read alone appears to grant unfettered discretion to a sentencing court, subsection (b) of the statute requires the district court to consider the factors set forth in 18 U.S.C. Sec. 3553(a) before determining whether to sentence consecutively or concurrently with the prior sentence. Section 3553(a)(5), in turn, requires the district court to consider the Guidelines promulgated by the Sentencing Commission pursuant to 28 U.S.C. Sec. 994(a)(1). And Sec. 994(a)(1)(D) delegates to the Sentencing Commission authority to promulgate guidelines governing a district court's "determination of whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively." But Sec. 994 also requires that the Guidelines be consistent with title 18, including 18 U.S.C. Sec. 3584(a). See 28 U.S.C. Sec. 994(b)(1). The Wills court focused on this latter portion of Sec. 994, holding that Guideline Sec. 5G1.3 is ultra vires because it is inconsistent with 18 U.S.C. Sec. 3584(a). Wills, 881 F.2d at 826.

The apparent tension, in sum, is between two provisions of 28 U.S.C. Sec. 994--subsection (a)(1)(D), delegating to the Sentencing Commission authority to promulgate Guidelines regarding concurrent and consecutive sentences, and subsection (b)(1), requiring consistency with 18 U.S.C. Sec. 3584(a). The Eleventh Circuit, in United States v. Fosset, 881 F.2d 976 (11th Cir.1989), implicitly rejected the Wills rationale and reconciled Sec. 3584(a) and Guideline Sec. 5G1.3. Most circuit courts that have addressed this issue have followed Fosset. See United States v. Stewart, 917 F.2d 970 (6th Cir.1990); United States v. Miller, 903 F.2d 341 (5th Cir.1990); United States v. Rogers, 897 F.2d 134 (4th Cir.1990). These courts have held that Guideline Sec. 5G1.3 is reconcilable with 18 U.S.C. Sec. 3584(a) because Sec. 5G1.3 does not preclude a court from departing from the Guidelines and sentencing concurrently. The Guidelines provide generally for two methods of downward departure. First, "the particular guideline at issue may suggest circumstances or factors that, if present, may provide the basis for departure." Rogers, 897 F.2d at 137. Second, the court retains discretion to depart, subject to review, if it determines that factors relevant to the sentencing have not been addressed adequately by the Guidelines. See id.; 18 U.S.C. Secs. 3553(b) and 3742(e)(3); U.S.S.G., Ch. 1, Pt. A, intro. at 4(b), and Sec. 5K2.0. See also United States v. Maldonado-Campos, 920 F.2d 714, 719-20 (10th Cir.1990).

All of the statutes involved in this analysis, 18 U.S.C. Sec. 3553, 18 U.S.C. Sec. 3584, and 28 U.S.C. Sec. 994 were enacted as part of the Sentencing Reform Act of 1984. In resolving the apparent tension among the statutes, we are guided by well-established canons of statutory construction. " 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L.Ed. 1009 (1850). See also Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). And " 'a statute should be interpreted so as not to render one part inoperative.' " Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237, 249, 105 S.Ct. 2587, 2594, 86 L.Ed.2d 168 (1985) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 684, 58 L.Ed.2d 596 (1979)). The Wills approach renders the delegation to the Sentencing Commission, 28 U.S.C. Sec. 994(a)(1)(D), inoperative when 18 U.S.C. Sec. 3584(a) is involved. Moreover, Sec. 3584(a) is a general provision concerning concurrent or consecutive sentences, and Sec. 3584(b) and what it incorporates (28 U.S.C. Sec. 994(a)(1)(D) and Guideline Sec. 5G1.3) are specific provisions. When general and specific statutory provisions apparently contradict, it is well-established that the two may exist together, the specific provision qualifying or limiting the general. See Townsend v. Little, 109 U.S. 504, 512, 3 S.Ct. 357, 362-63, 27 L.Ed. 1012 (1883). In this instance, Guideline Sec. 5G1.3, enacted pursuant to 28 U.S.C. Sec. 994, merely qualifies Sec. 3584(a) by requiring the court to consider Guideline departure before sentencing concurrently. Finally, it is preferable to harmonize apparently conflicting statutes, so as to give effect to both. See United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588 (1877).

We think the better reasoned approach is to harmonize...