U.S. v. Swan

• Decision Date: 02 January 2002
• Docket Number: No. 01-1598,01-1598
• Citation: 275 F.3d 272
• Parties: (3rd Cir. 2002) UNITED STATES OF AMERICA v. ERIC L. SWAN, APPELLANT
• Court: U.S. Court of Appeals — Third Circuit

Page 272

275 F.3d 272 (3rd Cir. 2002)

UNITED STATES OF AMERICA v. ERIC L. SWAN, APPELLANT

No. 01-1598

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 6, 2001

January 2, 2002

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 00-cr-00111) District Judge: Honorable William L. Standish

[Copyrighted Material Omitted] Karen S. Gerlach [argued] Office of Federal Public Defender 960 Penn Avenue 415 Convention Tower Pittsburgh, PA 15222 Counsel for Appellant Eric L. Swan.

Bonnie R. Schlueter James H. Love [argued] Office of United States Attorney 633 United States Post Office & Courthouse Pittsburgh, PA 15219 Counsel for Appellee United States of America.

Before: Scirica, Rendell, and Aldisert, Circuit Judges.

OPINION OF THE COURT

Rendell, Circuit Judge.

Defendant, Eric Lish Swan, appeals his sentence for an offense committed while on supervised release. The District Court believed that the Sentencing Guidelines mandated that it be served consecutively to the previously imposed sentence for violation of supervised release. The main issue on appeal is whether S 5G1.3(c) of the Sentencing Guidelines and the accompanying Application Note 6 required the District Court to impose a consecutive sentence in these circumstances. This issue is the subject of a split in the courts of appeals and is one of first impression in our court. For the reasons described below, we agree with the apparent minority of courts holding that the language of Application Note 6 is not mandatory and, accordingly, will vacate the judgment of sentence and remand for resentencing.

I.

In April 2000, the Pittsburgh Housing Authority Police responded to a call reporting a suspicious gathering. When they arrived, they saw Swan walk quickly toward a car, holding onto his pocket. After Swan jumped into the car, one of the officers saw him pull a holster containing a gun from his waistband and place it under the seat of the car. The police stopped the car and arrested Swan. App. at 76-78.

It was soon discovered that Swan had been convicted in 1992 of carrying a firearm during a drug trafficking crime and of two drug counts. He was on supervised release from this 1992 conviction at the time he was arrested.

The United States District Court for the Western District of Pennsylvania held a hearing in May 2000 to consider the supervised release violation, and revoked Swan's supervised release because he had violated the conditions that he participate in residential drug treatment and that he not commit a crime or possess a firearm. Swan was sentenced to a term of 21 months. App. at 50.

While serving this term, Swan was indicted and eventually pled guilty to the charge of being a felon in possession of a firearm in violation of 18 U.S.C.S 922(g)(1), also in the Western District of Pennsylvania before the same judge. App. at 64, 65-81. Prior to sentencing, Swan's counsel filed a motion urging that Swan's sentence for the felon in possession offense should run concurrently or partially concurrently with the sentence Swan was already serving. App. at 85. At issue was the meaning of Application Note 6 to S 5G1.3(c) of the Sentencing Guidelines ("U.S.S.G." or "guidelines"), which provides:

If the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release 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. S 5G1.3(c), Application Note 6 (2000).

After ordering briefing on this issue, the District Court concluded that "[i]n the absence of binding precedent, . . . Application Note 6 [of S 5G1.3] requires the court to impose a consecutive sentence in this case." App. at 14. The Court then imposed a sentence of 65 months to run consecutively to the defendant's 21-month sentence. App. at 171. Swan filed a timely appeal from the sentencing order.

II.

We have jurisdiction pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742(a)(1)-(2). Although decisions to impose a particular concurrent or consecutive sentence are reviewed for abuse of discretion, because this appeal concerns the construction of Sentencing Guidelines, our review is plenary. See, e.g., United States v. Spiers, 82 F.3d 1274, 1277 (3d Cir. 1996).

Section 5G1.3 addresses the sentencing of a defendant subject to an undischarged term of imprisonment. It provides:

(a) If the instant offense was 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, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.

(b) If 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.

(c) (Policy Statement) In 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.¹

The parties agree that (a) is inapplicable, but Swan argues that (b) applies, mandating a concurrent sentence, or, in the alternative, that (c) applies and gives the district court discretion to impose a concurrent or partially concurrent sentence.

A. Section 5G1.3(b)

In order to discuss the import, and impact, of S 5G1.3(b), it is helpful to review Swan's offenses once more. His initial conviction, as noted above, was for carrying a firearm in connection with drug trafficking, and two drug counts. We could term this a "gun-drug" crime. While on supervised release resulting from this crime, he failed to seek drug treatment and committed a crime or possessed a gun, and his supervised release was revoked. This conduct we can classify as "failure of drug treatment/crime or gun possession" conduct. Then, the instant sentencing was for the crime of being a felon in possession of a firearm -- his "felon in possession" charge.

The question under S 5G1.3(b) is whether the undischarged term of imprisonment (namely, the 21 months imposed because of his revocation of supervised release) "resulted from offenses" that have been "fully taken into account in the determination of the offense level for the instant offense." U.S.S.G. S 5G1.3(b).

Looking at the last element first, we ask what was"taken into account" in the determination of Swan's offense level for his sentencing as a felon in possession of a firearm. The District Court determined that the base offense level was 20, pursuant to the guideline for defendants sentenced for being a felon in possession of a firearm. See U.S.S.G. S 2K2.1(a)(4). A 2-point enhancement for a stolen gun and a 3-point decrease for acceptance of responsibility resulted in an offense level of 19. Can we say that Swan's 21-month sentence resulted from an offense that was fully taken into account in the determination of that offense level of 19?

We note that there is a difference of opinion as to whether the concept of "resulted from the offense" is intended to look back to the initial offense (here, the gun/drug crime but for which there would have been no supervised release or revocation thereof), or whether the "offense" referred to is the conduct that had the immediate impact of his release revocation and therefore the imposition of the term of imprisonment (in this case, the failure of drug treatment/crime or gun possession conduct).²

We need not decide which is the proper reading, however, because we conclude that neither of these offenses was "fully taken into account" in the court's determination of the offense level of 19. While the Guidelines do not define this phrase, the drafters' inclusion of the word"fully" and the provision's purpose of avoiding double-counting indicate that more than just some effect on the offense level is required. See, e.g., Witte v. United States, 515 U.S. 389, 404-06 (1995) (S 5G1.3's purpose is to avoid double counting); United States v. Dorsey, 166 F.3d 558, 562 (3d Cir. 1999) (same). Section 5G1.3(b) appears to be aimed at the situation in which, unless the sentences were concurrent, the defendant would be serving two sentences for essentially the identical offense.

While there is arguably some overlap, clearly, the offense level of 19 for the felon in possession charge did not "fully" take into account either the original offense conduct or the supervised release violation. Here, criminal conduct and prohibited conduct that occurred in connection with the initial offense and the supervised release revocation is not being considered at all in connection with the felon in possession charge. The scheme of S 5G1.3 seems to contemplate (b) as the "double-counting" section and subsection (c) as the section more appropriate if there is no precise double-counting, but perhaps some overlap, as is the case here.

B. Section 5G1.3(c) and Application Note 6

As neither (a) nor (b) applies, Swan's situation is addressed by S 5G1.3(c) and by the accompanying Application Note 6. The application note provides that, for a defendant like Swan who was on supervised release at the time of the instant offense and whose supervised release was 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...