U.S. v. Yahne, 94-3605

• Decision Date: 31 August 1995
• Docket Number: No. 94-3605,94-3605
• Citation: 64 F.3d 1091
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard YAHNE, also known as Richard Stone, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1091

64 F.3d 1091

UNITED STATES of America, Plaintiff-Appellee, v. Richard YAHNE, also known as Richard Stone, Defendant-Appellant.

No. 94-3605.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 1995.

Decided Aug. 31, 1995.

Barry Rand Elden, Asst. U.S. Atty., Frances Lipuma, argued, Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

John M. Beal, argued, Chicago, IL, for Richard Yahne.

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

After Richard Yahne had served a sentence for conspiracy relating to theft of goods in interstate commerce, imposed by a federal court sitting in Indiana, he was convicted and sentenced in this proceeding for later acts involving a conspiracy to steal an interstate shipment in Illinois. The district court sentenced Mr. Yahne to 18 1/2 months of imprisonment, an additional period of supervised release, a fine and restitution. Mr. Yahne now appeals his sentence. For the reasons set forth in the following opinion, we affirm in part and reverse and remand in part.

I

On August 6, 1988, Mr. Yahne and three others stole a tractor-trailer carrying about 915 cases of cigarettes valued at approximately $500,000 from the Turner Trucking Company in Indianapolis, Indiana. On December 18, 1989, Mr. Yahne, again with several others, stole a trailer containing Panasonic electronic equipment worth over $580,000 from the Chicago & North Western Transportation Company in Chicago, Illinois.

On April 19, 1990, Mr. Yahne was indicted in federal court in Indiana on charges relating to the Indiana theft of cigarettes. He eventually entered into a plea agreement regarding those charges. The district court in Indiana accepted Mr. Yahne's guilty plea and granted the United States Attorney's motion for a downward departure. Accepting the United States Attorney's recommendation, on July 3, 1991, the court sentenced Mr. Yahne to 434 days of incarceration. ¹

On November 4, 1993, Mr. Yahne and seven co-defendants were indicted in federal court in Illinois on charges relating to the Illinois theft of Panasonic merchandise. Again Mr. Yahne entered into a plea agreement with the United States Attorney. On June 14, 1994 he pleaded guilty to count one of the indictment, conspiracy to steal an interstate Before sentencing, Mr. Yahne argued to the district court that the sentence to be imposed in Illinois should be grouped with the July 3, 1991 sentence previously imposed in the Indiana case. At the sentencing hearing on October 25, 1994, the district court accepted Mr. Yahne's plea agreement and entered a judgment of guilty against Mr. Yahne on count one. The court rejected, however, Mr. Yahne's grouping request. It accepted the guideline range tentatively mentioned in the plea agreement and then granted the government's Sentencing Guideline Sec. 5K1.1 motion for a downward departure of one-half the low end of that applicable sentencing guideline range. ² Accordingly, the court sentenced Mr. Yahne to a term of 18 1/2 months of incarceration and three years of supervised release. It also ordered a fine of $4,000 and restitution in the amount of $580,000 to be paid in installments as determined by the probation department. Mr. Yahne now appeals the district court's determination with respect to the sentence.

                shipment.  The agreement provided that Mr. Yahne would plead guilty to the single count of the indictment which alleged a conspiracy to commit an offense against the United States relating to the theft of an interstate shipment of property.  The agreement recited that the parties agreed on the appropriate base level, on the value of the shipment, and on the appropriate criminal history points.  The criminal history factor took into account the earlier conviction in the federal court sitting in Indiana.  The parties to the plea agreement stipulated that, subject to any additional evidence that may alter the evaluation, the defendant was eligible for a reduction for acceptance of responsibility.  They also agreed that a further reduction was appropriate because the defendant had acknowledged his responsibility in a timely manner.  The agreement further stated that these calculations were preliminary in nature and that either party might submit a revised calculation to the district court.  Finally, the agreement recited that it was governed by Federal Rule of Criminal Procedure 11(e)(1)(C) and that the parties agreed that the sentence imposed ought to include a term of imprisonment of "one-half the low end of the applicable Guideline range."   If the court determined that another term of imprisonment was more appropriate, the agreement stated that the defendant had the right to withdraw the plea
                

II DISCUSSION

A.

Mr. Yahne submits that the district court erred in refusing to group or to consolidate the Indiana and Illinois cases for sentencing purposes. By refusing to group the offenses for purposes of sentencing, he contends, the district court arrived at the wrong guidelines range and therefore calculated the downward departure from the wrong starting point.

In submitting that grouping is appropriate, the defendant stresses the similarity of the crimes: Both were interstate conspiracies for theft; both extended into 1989, and thus were within a year of one another; at least four of the same conspirators were involved in both cases; and both were orchestrated by the same co-conspirator. Therefore, he submits, there is a sufficient nexus between the two cases to consolidate them under Guideline Sec. 4A1.2 for sentencing purposes. According to Mr. Yahne, if the two cases were consolidated, a single sentence would be imposed for both cases, and the court would subtract the time served in Indiana. ³

B.

We must first consider whether we have jurisdiction to hear the contention presented to us. Our authority to review a district court's sentencing determination is circumscribed by statute. Under the current statute, our review of a sentence is limited to cases in which the sentence was (1) "imposed in violation of law," (2) "imposed as a result of an incorrect application of the sentencing guidelines," (3) "outside the applicable guideline range," or (4) "unreasonable." 18 U.S.C. Sec. 3742(e), (f). Consequently, we lack jurisdiction to review a district court's discretionary rejection of a downward departure from a sentence within the applicable guideline range. ⁴ We likewise have no jurisdiction to review the extent of the downward departure. ⁵ However, if the district court's denial of a downward departure is based on the conclusion that it lacked authority to depart, that decision is a legal conclusion over which we have appellate jurisdiction. United States v. Canoy, 38 F.3d 893, 903 (7th Cir.1994); United States v. Wright, 37 F.3d 358, 361 (7th Cir.1994).

Mr. Yahne bases his appeal on 18 U.S.C. Secs. 3742(a)(1) and (a)(2):

(a) Appeal by a defendant.--A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines.

We turn, therefore, to Mr. Yahne's submission that the sentence imposed on him violated the law or was an incorrect application of the sentencing guidelines.

In United States v. Blackwell, 49 F.3d 1232 (7th Cir.1995), this court was faced with a situation that sheds significant light on our assessment of the jurisdictional issue before us today. In that case, as part of a plea agreement, the parties had agreed that the defendant should receive credit on his sentence for the twelve months of incarceration that he had served pursuant to a judgment of conviction entered in another district and for two months served in the custody of state authorities. Id. at 1240-41. The conduct punished by those earlier convictions was part of the conspiracy charged in the case for which the defendant was currently being sentenced; the conspiracy had been taken into account in determining the base offense level. Therefore, the parties agreed that a fourteen-month downward departure was in order. In making this request to the district court, the parties relied upon Guideline Sec. 5G1.3. ⁶ That section provides that a term of imprisonment should be imposed to run concurrently when a defendant is serving an undischarged term of imprisonment for an offense that has been taken fully into account when determining the offense level of the present offense. The purpose of this provision is to ensure that a defendant is not penalized twice for the same conduct. Also, the second application note provides, to accomplish the same end, that the court ought to adjust the term of imprisonment for that portion of an earlier term of imprisonment that already has been served. ⁷

Despite the joint request of the government and the defendant in Blackwell, the district court declined to give the requested credit. 49 F.3d at 1241. Upon examination of the record, the district court determined that a misrepresentation of the defendant had resulted in a lower sentence, twelve months, than he should have received with respect to the earlier crime. At the beginning of its analysis, the district court in Blackwell determined that Sec. 5G1.3 on its face did not apply to the defendant because the defendant had completed his sentence for the related conduct. Therefore, there was no "undischarged term of imprisonment" against which the sentence could be adjusted. Although the rationale of Sec. 5G1.3--to avoid double punishment--appeared to apply equally to time that had been served and for which the defendant had been discharged completely, the district court concluded that the terms of the section were not so encompassing.

In reviewing the decision of the district court not to give the defendant credit for the time served on the now-discharged but related sentence, we first...