U.S. v. Warren

• Decision Date: 08 December 1992
• Docket Number: No. 91-30464,91-30464
• Citation: 980 F.2d 1300
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Leferrall WARREN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1300

980 F.2d 1300

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Leferrall WARREN, Defendant-Appellant.

No. 91-30464.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 3, 1992.

Decided Dec. 8, 1992.

Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for defendant-appellant.

Gary Y. Sussman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: TANG, BRUNETTI, and FERNANDEZ, Circuit Judges.

TANG, Circuit Judge:

Gregory Leferrall Warren appeals his sentence imposed under the United States Sentencing Guidelines after he pleaded guilty to one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Warren contends the district court erred by imposing his 30-month federal sentence to run consecutively to an undischarged 30-year state prison sentence. Warren also seeks resentencing on the ground that the U.S. Attorney breached a plea agreement by recommending that Warren's federal sentence run consecutively to his state sentence. We affirm.

I.

In June 1991, Warren pleaded guilty to being a felon in possession of a firearm on or about October 2, 1990. At that time, the district court reviewed with Warren the terms of his plea agreement:

Now, [under] the agreement with the government, you're reserving the right and the court will listen carefully to the request that the sentence in this case run concurrently with the sentence that you received in the Circuit Court for Multnomah County on several conditions. The government's not going to take any position as to whether your federal sentence should run concurrently or consecutive[ly] to the state sentence.

The government reserves the right to fully inform the court and the probation officer of all the facts that it knows about. And you understand that while the court always listens carefully to the recommendations of the government, it's not bound by those recommendations.

Before sentencing, the parties exchanged and filed several letters and memoranda concerning a number of issues, including whether the federal sentence should run concurrently or consecutively to the state sentence. In response to the government's statements relating to the concurrent/consecutive issue, Warren accused the government of breaching its promise not to take a position on the issue.

The date for sentencing was continued several times. During this time, the November 1, 1991 version of the Sentencing Guidelines took effect. The government subsequently filed a memorandum bringing this development to the court's attention. Under the new Guidelines, the government asserted that the base offense level for Warren's federal conviction was raised to 24. Prior to November 1, the base offense level had been 12. Compare U.S.S.G. § 2K2.1(a)(2) (Nov. 1, 1991) with id. App.C. (amendment 374). The government asserted that the new base offense level should apply. Warren argued that applying the new base offense level would violate ex post facto.

Thereafter, the government agreed with Warren's argument and withdrew its request that the higher base offense level apply. In doing so, the U.S. Attorney explained that, because Warren had sought the benefit of some of the November 1, 1991 Guidelines amendments by moving to continue sentencing, the government assumed that the 1991 Guidelines would apply in their entirety. In withdrawing its request that Warren be sentenced under the 1991 version of Guidelines section 2K2.1, the government noted its position that the Guidelines in effect on the date of Warren's crime "should be applied as a whole." The government asserted that "Mr. Warren is not entitled to pick and choose favorable provisions" from the different versions of the Guidelines in effect at the time of the crime and at the time of sentencing.

Government assertions notwithstanding, Warren argued at sentencing that some of the 1991 Guidelines amendments still applied, despite the fact that his base offense level would be determined under the 1989 Guidelines. Specifically, Warren argued that a 1991 amendment to section 5G1.3, the Guidelines provision pertaining to the concurrent/consecutive issue, mandated that his federal sentence run concurrently with the state sentence. Under the version of section 5G1.3 in effect prior to November 1, 1991, however, the court retained discretion to decide whether Warren's federal sentence should run concurrently or consecutively with his separate, undischarged state term of incarceration. The court exercised this discretion, and determined that Warren's federal sentence should run consecutively to his state sentence.

Warren timely appeals his sentence.

II.

We review de novo a district court's application of the Sentencing Guidelines. United States v. Kohl, 972 F.2d 294, 297 (9th Cir.1992).

A.

In challenging the imposition of a consecutive sentence, Warren assumes either that the November 1, 1991 version of Guidelines section 5G1.3 applies or that the previous version applies but is identical in effect to the later version. Under either version, Warren contends he is entitled to a concurrent sentence.

The latter assumption is clearly wrong. The 1989 version and the 1991 version of the guideline differ dramatically. The 1991 version was enacted to "provide[ ] additional structure and guidance for the decision to impose a consecutive or concurrent sentence upon a defendant subject to an undischarged term of imprisonment to reduce the potential for unwarranted disparity in such determinations." U.S.S.G. App.C (amendment 385). Thus, the revised version of section 5G1.3 applies to many more situations and allows for much less discretion than the 1989 version. This rigidity is evident from Warren's assertion, which the government does not dispute, that the 1991 version of section 5G1.3 would mandate that his federal sentence run concurrently with his state sentence.

On the other hand, the 1989 version of section 5G1.3 does not even directly pertain to Warren's situation. The guideline itself is only concerned with federal offenses committed when an individual is already serving a term of imprisonment stemming from other charges. ¹ The 1989 commentary to this guideline indicates that the sentencing court has broad discretion whether to impose a concurrent or consecutive sentence when, as here, the federal offense was not committed while the defendant was serving another sentence. See United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990); United States v. Miller, 903 F.2d 341, 347-48 (5th Cir.1990). Although the 1989 commentary offers a methodology by which a court may determine whether to impose a concurrent or consecutive sentence in such situations, the commentary leaves to the court's discretion whether to apply the suggested methodology.

Given the broad discretion with which the district court is entrusted under the 1989 version of section 5G1.3, Warren's second assumption--stated above--must be rejected. The two versions of section 5G1.3 are substantially different. Under the 1989 version, the district court was well within bounds in choosing to impose a consecutive sentence based on the fact that the state and federal sentences pertained to separate incidents. Therefore, in order for Warren to show that he was entitled to a concurrent sentence, he must first show that the 1991 version of section 5G1.3 applies to his case. Based on the following discussion, we conclude that he cannot make this showing and that the district court therefore properly applied the 1989 version of Guidelines section 5G1.3.

B.

Normally, a district court is to apply the version of the Sentencing Guidelines in effect on the date of sentencing. United States v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 443, 116 L.Ed.2d 461 (1991). Section 3553(a), 18 U.S.C., provides that

The court, in determining the particular sentence to be imposed, shall consider--

....

(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced [.]

18 U.S.C. § 3553(a)(4) (emphasis added); see also id. § 3553(a)(5) (requiring court to consider Guidelines policy statements in effect at sentencing). In most cases, district courts must impose a sentence in accord with section 3553(a)(4), including that statute's requirement as to which version of the Guidelines should be applied. Id. § 3553(b).

We have recognized an exception to this rule in cases where amended versions of the Sentencing Guidelines are ex post facto. See United States v. Castro, 972 F.2d 1107, 1112 (9th Cir.1992) (remanding non-continuing offense convictions for resentencing under Guidelines in effect at the time of offenses so as not to violate Ex Post Facto Clause); United States v. Sweeten, 933 F.2d 765, 772 (9th Cir.1991) (to same effect); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (retrospective application of revised state sentencing guidelines violates Ex Post Facto Clause); United States v. Bolinger, 940 F.2d 478, 483-85 (9th Cir.1991) (D.W. Nelson, J., dissenting) (opining that district court violated Ex Post Facto Clause in sentencing defendant under version of U.S.S.G. § 2K2.1(a) in effect on date of sentencing). In such cases, the defendant is to be sentenced under the relevant provisions of the Guidelines in effect at the time of the offense. Sweeten, 933 F.2d at 772.

There is no question in this case that by virtue of the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, Warren's base offense level was to be determined under the version of Guidelines section 2K2.1(a)(2) in effect on the date he committed his crime. Thus,...