                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-6-1997

United States v. Oser
Precedential or Non-Precedential:

Docket 95-1107,95-1108




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                     Nos. 95-1107 & 95-1108



                    UNITED STATES OF AMERICA

                                v.

                     NEIL OSER, a/k/a "Lou"


                           Neil Oser,
                                    Appellant




         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      (D.C. No. 92-cr-00424)


             Argued on Rehearing September 20, 1996

     Before a reconstituted panel of SLOVITER, Chief Judge,
                ROTH and ROSENN, Circuit Judges*



                     (Filed March 6, 1997)

Joshua Markowitz
Howard A. Teichman (Argued)
Markowitz & Zindler
3131 Princeton Pike, Bldg. 3D
Lawrenceville, NJ 08648

          Attorneys for Appellant




*
   The appeal was originally submitted pursuant to Third Circuit
LAR 34.1(a) on May 21, 1996 before a panel consisting of Chief
Judge Sloviter, Judges Sarokin and Rosenn. A judgment order was
entered on July 8, 1996. Appellant filed a petition for
rehearing which was granted by the panel and the panel was
reconstituted after the retirement of Judge Sarokin.



                                1
Seth Weber (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

          Attorney for Appellee




                         OPINION OF THE COURT

SLOVITER, Chief Judge.

          Appellant Neil Oser was sentenced in the United States

District Court for the Eastern District of Pennsylvania for his

role in two drug conspiracies to which he pled guilty.     He argues

that the district court erred in ordering that the sentences

imposed should run consecutively rather than concurrently and/or

co-terminously with the term of imprisonment which he is serving

for a currency reporting violation to which he pled guilty in the

federal court in New York.    He also argues that the district

court erred in setting his criminal history level.
                                  I.

          On June 19, 1991, United States Customs Agents at JFK

Airport arrested Neil Oser before he boarded a flight bound for

Lagos, Nigeria for understating on customs forms the amount of

United States currency he was transporting.     He had reported that

he was carrying $65,000 in cash, when in fact he carried a total

of $790,000.   Oser pled guilty in the United States District

Court for the Eastern District of New York to a charge of failing

to accurately report the transport of cash abroad in violation of

31 U.S.C. § 5316.   That plea, a waiver of indictment, and a plea

agreement were entered on November 26, 1991.    Oser was released


                                  2
pending sentencing on condition and with notice that he would be

subject to an additional sentence should he commit another

offense while on pretrial release.   On July 23, 1993, the

district court in New York rejected Oser’s various requests for a

downward departure and sentenced him to 28 months in prison.

           In the interim, Oser was indicted on July 29, 1992, in

the Eastern District of Pennsylvania and charged with conspiracy

to import heroin into the United States in violation of 21 U.S.C.

§ 963 and money laundering of $7,200 in postal money orders that

were drug payments to his brother in violation of 18 U.S.C. §

1956(a).   The Pennsylvania indictment included as an overt act

Oser's June 19, 1991 "attempt[] to smuggle" approximately

$800,000 cash out of the United States from New York, although

that paragraph made no reference to drugs or the subsequent

heroin conspiracy described in the indictment.   The substance of

the Pennsylvania indictment and all of the remaining overt acts

refer to transactions pertinent to a conspiracy to import heroin

through March 1992.

           On September 3, 1993, Oser was again indicted in the

District of New Jersey and charged with conspiracy to import

heroin into the United States in violation of 21 U.S.C. § 963 and

possession of heroin with intent to distribute in violation of 21

U.S.C. § 841(a)(1).   The New Jersey indictment alleged that the

criminal activity charged took place from July 1992 through

February 1993, a period that included activity after Oser pled

guilty to the false currency charge in New York.   The government

contends that although both the Pennsylvania and New Jersey


                                3
indictments involve international heroin smuggling activities,

they involved different participants and different time periods,

a contention supported by the facts set forth in the pre-sentence

report.1

           Oser pled guilty to the Pennsylvania conspiracy and

money laundering charges on December 3, 1992.   The New Jersey

case was transferred to the Eastern District of Pennsylvania in

May 1994 in order to consolidate for disposition.   On June 13,

1994, Oser also pled guilty to the New Jersey conspiracy charge.

           On January 26, 1995, the district court sentenced Oser

to a nine year term of imprisonment on the New Jersey charge,

with an additional one year enhancement pursuant to 18 U.S.C. §

3147 and U.S.S.G. § 2J1.7 because Oser committed the New Jersey

offense while on pre-sentence release from the New York

conviction.   The district court imposed an identical sentence on

the Pennsylvania conspiracy charge to run concurrently with the

New Jersey sentence.   On the Pennsylvania money laundering

charge, the court sentenced Oser to five years, plus an

additional one-year sentence for commission of the crime while on

release, also to run concurrently with the other sentences.

1
   According to the pre-sentence report, the Pennsylvania
conspiracy involved only Neil Oser and his brother, Marty Oser,
in an agreement made in Philadelphia with several confidential
informants to import two separate 1 kilogram shipments of heroin
into the United States. The New Jersey conspiracy, by contrast,
involved a much larger and more sophisticated network of couriers
as well as co-conspirators, responsible for importing multi-
kilogram shipments of heroine. The drug network, which may have
been organized by Neil Oser, also allegedly engaged co-
conspirators in distributing the imported heroin to connections
in Chicago.



                                4
However, the district court ordered the New Jersey and

Pennsylvania sentences to run consecutively to the 10 months

remaining on Oser’s New York sentence.

          Oser originally argued in his appellate brief that he

was not put on adequate notice that committing a crime while on

pre-sentence release could result in an increased sentence

pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7.    He withdrew

that argument following a showing by the government      that

before Oser was released on the New York charges, he signed an

Appearance Bond which stipulated the conditions of his release

and expressly stated that “DEFENDANT ADVISED BY MAGISTRATE OF

APPLICABLE PROVISIONS OF 18 U.S.C. § 3156/3147 IN WRITING.”

Gov't App. at 1.   That advice appeared on a separate page under

the heading, “Advice of Penalties and Sanctions” that was also

signed by Oser and that clearly warned Oser of the enhanced

penalty he faced for committing a crime while on bond.   Id. at 4.

 On oral argument, Oser conceded that he did, in fact, receive

sufficient notice that any offense committed while on bond would

result in an enhanced sentence, and he no longer challenges the

one year enhancement imposed by the district court.

          Instead, Oser's argument now is limited to his

contention that under U.S.S.G. § 5G1.3(b) and § 5G1.3(c) the

district court here was required to impose the conspiracy

sentences to be served concurrent to the New York currency

charges, and that the district court erred in fixing his criminal

history level.




                                5
          We have jurisdiction over the appeal of this sentence

pursuant to 28 U.S.C. § 1291.    Our review of the construction of

the Sentencing Guidelines is plenary.   United States v.

Holifield, 53 F.2d 11, 13 (3d Cir. 1995).
                                II.

          Section 5G1.3 of the Sentencing Guidelines is the

provision designed to guide the district courts in determining

whether a sentence on a defendant subject to an undischarged term

of imprisonment is to run consecutively or concurrently.   At the

time of sentencing, that section, which has since been amended,

provided:
§5G1.3Imposition of a Sentence on a Defendant Subject to an
                    Undischarged Term of Imprisonment

          (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 shall be imposed to run
               consecutively to the prior undischarged term of
               imprisonment to the extent necessary to achieve a
               reasonable incremental punishment for the instant
               offense.


U.S.S.G. § 561.3 (1994).




                                6
             Both parties agree that § 5G1.3(a) is inapplicable

here.     The second offense (subject of the Pennsylvania

indictment) was committed before Oser was sentenced on the first

offense, the New York money reporting charge.      The dispute

instead turns first on the applicability of § 5G1.3(b).

             U.S.S.G. § 5G1.3(b) requires a judge to impose a

sentence to run concurrently to an undischarged term of

imprisonment when the conduct that gave rise to the prior

conviction has “been fully taken into account in the

determination of the offense level for the instant offense.”

U.S.S.G. § 5G1.3(b) (emphasis added).      Earlier conduct has been

“fully taken into account” where it has been used as a "§ 1B1.3

(Relevant Conduct) factor in determining the offense level for

the instant offense."      U.S.S.G. § 5G1.3, comment. (n.2).   Such a

consideration may occur when the separate offenses are part of

the “same criminal conduct,” or “part of the same course of

conduct.”    Id.

             The district court determined that Oser’s base offense

level was 34, which it calculated solely because the total

quantity of heroin involved in the two conspiracies to import

heroin from Nigeria was more than 3 but lower than 10 kilograms.

    App. at 61.    It then imposed a three level enhancement pursuant

to § 2J1.7 because the offense was committed while Oser was on

pre-sentence release from the New York offense.2      Id.   It is
2
     U.S.S.G. § 2J1.7 provides:

If an enhancement under 18 U.S.C. § 3147 applies,
               add 3 levels to the offense level
               for the offense committed while on


                                    7
important to note that this enhancement applies irrespective of

any relationship vel non between the New York offense and the

Pennsylvania or New Jersey conspiracies.   Thus Oser would have

been subject to this enhancement even if the New York offense for

which he was released had been a sex crime rather than a currency

offense.   Nothing in the district court's imposition of sentence

suggests that the fact that Oser had been discovered

underreporting the amount of currency he was carrying as he left

the country was viewed by the district court in Pennsylvania as

relevant conduct in determining Oser's offense level.

           The district court acted on the basis of the pre-

sentence report and its rulings on objections thereto by the

parties.   That report carefully listed all the "related cases,"

and included the charges against Martin Oser (in the Pennsylvania

(..continued)
                release as if this section were a
                specific offense characteristic
                contained in the offense guideline
                for the offense committed on
                release.

18 U.S.C. § 3147 states:

[A] person convicted of an offense committed while
               released under this chapter shall
               be sentenced, in addition to the
               sentence prescribed for the offense
               to --
          (1) a term of imprisonment of not more
               than ten years if the offense is a
               felony; or
          (2) a term of imprisonment of not more
               than one year if the offense is a
               misdemeanor.

A term of imprisonment imposed under this section
               shall be consecutive to any other
               sentence of imprisonment.



                                8
case), and those against Robert Gist and Femi Ojo (in the New

Jersey case).    Similarly, the "offense conduct" detailed in the

pre-sentence report covers only the conspiracies in the

Pennsylvania and New Jersey cases.    The references to the New

York criminal charge are limited to the fact of its filing and

the fact that Oser was on release when he committed the offenses

covered in the New Jersey indictment.    We see no basis to

conclude that Oser's conduct that was the basis of his New York

currency crime, i.e. underreporting of the amount of funds being

carried out of the country, played any part in the determination

of the offense level for his conspiracy sentence.

            Oser claims that § 5G1.3(b) applies to him because the

government named his New York underreporting conviction as an

overt act in the Pennsylvania conspiracy indictment, thereby

establishing that the two crimes were “part of the same course of

conduct.”    While that contention seems plausible on its face, it

does not withstand close scrutiny.

            The Commentary to the guideline gives as an

illustration of the applicability of § 5G1.3(b) the situation

where a defendant has been convicted in federal court for sale of

30 grams of cocaine following an earlier state court conviction

for cocaine sales of 15 grams.   The two offenses are to be

treated as part of the same course of conduct if that defendant

would be deemed responsible for the sale of a total of 45 grams

of cocaine as relevant conduct resulting in an offense level of

14.   The Commentary states that because the offense level in the

federal case was calculated based on the quantity of drugs in


                                 9
both charges, under § 5G1.3(b) the court should impose the

federal sentence to run concurrently with the state sentence.    It

explains: "Because the defendant has already served six months on

the related state charge, a sentence of seven months, imposed to

run concurrently with the remainder of the defendant's state

sentence, achieves this result."    U.S.S.G. § 5G1.3(b), comment.

(n.2).

          The district court in Oser's case calculated the amount

of heroin from both the Pennsylvania and New Jersey conspiracies

in setting the relevant conduct as involving from 3 to 10

kilograms.  At sentencing the court stated that
          we will confine ourselves to what was
               agreed as the basis for the plea of
               guilty in New Jersey, which would
               be a quantity between 3 and 10, and
               to which one would add the .446 of
               a kilogram from Philadelphia . . .
               . that is the figure which I will
               use as the drug quantity in
               calculating the offense level. We
               are proceeding, of course, with
               these charges grouped and that
               explains the linking of the New
               Jersey and Pennsylvania charges.


Transcript of Sentencing, January 26, 1995 at 17.    Applying the

illustration from the Commentary, this means the court had fully

taken into account the New Jersey conduct in setting the offense

level for the Pennsylvania offense.

          Oser relies on the fact that the government included as

an overt act in the Pennsylvania indictment the following

reference to the New York conduct:
          On or about June 19, 1991, defendant
               NEIL OSER attempted to smuggle
               approximately $800,000 cash out of
               the United States at John F.


                               10
                 Kennedy International Airport in
                 New York with a final destination
                 of Lagos, Nigeria.


Except for this single sentence, there is no subsequent reference

or tie-up to Oser's New York conduct occurring in June 1991.

Instead, the Pennsylvania indictment is confined to two

transactions involving importation of heroin from Nigeria, which

began with a telephone conversation between a confidential

informant and Neil Oser's brother Marty in October 1991 (almost

four months after the New York arrest) to set up a meeting to

discuss arrangements for importation of heroin from Nigeria, via

pick up at the airport in Amsterdam, effected early November

1991, and arrangements for a second shipment again through

Amsterdam.    The indictment alleged participation by two

confidential informants, one or more Drug Enforcement

Administration agents, and Neil Oser, who in the course of the

conspiracy cashed $7,200 of postal money orders given to his

brother as part payment for one of the deliveries.    The last

overt act alleged was a meeting between Neil Oser, his brother

and DEA agents on March 31, 1992 to discuss additional

importation of heroin.   The mere reference to the New York

conduct as an overt act, nowhere else explained, cannot be used

to evidence that the underreporting of currency in New York was

part of the same course of conduct charged in the Pennsylvania

indictment.

          Nor is there any suggestion that the underreporting was

part of the conduct alleged in New Jersey, which alleged a

conspiracy between Neil Oser and Robert Gist to import


                                 11
multikilograms of heroin from Nigeria from about July 1992 until

February 1993 and which, as further detailed in the pre-sentence

report, involved smuggling heroin into the United States through

the lining of suit jackets, via a sophisticated network of

couriers.

            The charge filed in New York is independent of that in

either indictment.   The New York waiver of indictment merely

provided that Neil Oser "is accused of knowingly and willfully

failing to file a report as defined in Title 31, United States

Code, Section 5316(b) when knowingly transporting and being about

to transport monetary instruments of more than $10,000 at one

time, to wit, approximately $790,000 in United States currency,

from a place in the United States to a place outside the United

States."

            Although Oser's counsel argued before us that the New

York conduct is part of the same course of conduct as alleged in

the other indictments, there is nothing in the New York charges

that refers to drugs or any drug conspiracy.   Oser offers nothing

on the record to show a connection.   Indeed, if Oser had not

already pled guilty to underreporting the currency carried in New

York, the government would have been free to prosecute him for it

after it secured a conviction on the Pennsylvania drug

conspiracy, regardless of its inclusion as an overt act.     See

Garrett v. United States, 471 U.S. 773, 787 (1985) (separate

offenses may be prosecuted separately without offending double

jeopardy, even if one is a predicate act for another); United
States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir. 1990), cert.



                                 12
denied, 500 U.S. 915 (1991).   Therefore, mere inclusion of a

prior offense as an overt act in a conspiracy is not sufficient

to constitute relevant conduct under § 1B1.1, and it was not

taken into account by the district court in setting Oser's

offense level.

          Oser chose to pursue two courses of criminal conduct

separately recognized by Congress: failure to file a truthful

currency report in violation of 31 U.S.C. §§ 5316 and

conspiracies to import heroin into the United States in violation

of 21 U.S.C. § 963.    A concurrent sentence is not compelled by §

5G1.3(b) in this situation.

          In light of the dissent's criticism of the government's

actions, we note that the government could not have filed all the

charges together in one proceeding.    By the time the government

had a basis to indict Oser for the conspiracy to import heroin

that was the subject of the Pennsylvania indictment, which was

returned on July 29, 1992, Oser had already waived indictment and

entered into a guilty plea on his June 19, 1991 conduct leading

to the currency charge in New York.    On that charge, he waived

indictment, pled guilty and entered into a plea agreement on

November 26, 1991.    There is nothing in the record to compare

this case with United States v. McCormick, 58 F.3d 874, 878 (2d

Cir. 1995), where it appeared that the government deliberately

seized upon a "perverse incentive" to try related crimes in

separate jurisdictions.

          Furthermore, the consolidation of the Pennsylvania

charges and the New Jersey charges do not support the dissent's


                                 13
suggestion that the underlying charges in all three cases were

part of the same course of conduct.    The consolidation was

directed for disposition only after Oser pled guilty in

Pennsylvania.   The government has consistently argued that the

New Jersey and Pennsylvania conspiracies were separate.

Nonetheless, once Oser also pled guilty in the New Jersey case,

the district court did give Oser the benefit of concurrent

sentences for the Pennsylvania and New Jersey crimes.

          Inasmuch as we conclude that subsection (b) does not

apply to Oser's case, it follows that subsection (c) is the

relevant guideline provision for determining whether his sentence

should be imposed concurrently or consecutively to the remainder

of his 28 month New York sentence.    Under subsection (c),

characterized as a "policy statement," the sentence for the

offenses at issue, here the Pennsylvania and New Jersey

conspiracies to import heroin, was to be imposed to run

consecutively "to the prior undischarged term of imprisonment to

the extent necessary to achieve a reasonable incremental

punishment for the instant offense."    U.S.S.G. § 5G1.3(c) (1994).

 Application Note 3 sets out a methodology "to assist the court

in determining the appropriate sentence."    U.S.S.G. § 3G1.3,

comment. (n.3).   At the time of Oser's sentencing that Note

provided, in part,
To the extent practicable, the court should consider a
          reasonable incremental penalty to be a
          sentence for the instant offense that results
          in a combined sentence of imprisonment that
          approximates the total punishment that would
          have been imposed under § 5G1.2 (Sentencing
          on Multiple Counts of Conviction) had all of
          the offenses been federal offenses for which


                                14
           sentences were being imposed at the same
           time. Id. 3


           According to Oser, the district judge did not apply the

appropriate methodology in sentencing him consecutively, and

failed to state any reasons for avoiding the methodology as is

required by United States v. Holifield, 53 F.3d 11, 17 (3d Cir.

1995).   We disagree.

           The methodology outlined by the Application Note merely

suggests that a judge first approximate the “total sentence” for

a defendant as if the defendant were being sentenced for all his

offenses at the same time; this “total sentence” then provides

the judge with the maximum and minimum range for sentencing the

defendant on the instant offense.    See U.S.S.G. § 5G1.3, comment.

(n.3); United States v. Spiers, 82 F.3d 1274, 1278 (3d Cir.

1996).   As long as a consecutively imposed sentence falls within

this maximum and minimum range, a judge has imposed a “reasonable

incremental punishment” as described by the § 5G1.3(c).   U.S.S.G.

§ 561.3, comment. (n.3).   Beyond that limitation, the court


3
     U.S.S.G. § 5G1.3(c) was amended effective November 1, 1995,
and now provides the district court with even more discretion to
fashion a sentence for a defendant subject to an undischarged
term of imprisonment. It states:

(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.

U.S.S.G. § 5G1.3(c) (1995). The application note to this section
was changed to correspond to the amendment. See U.S.S.G. §
5G1.3(b), comment. (n.3) (1995).




                                15
retains broad discretion to choose the length and sequence of

punishment.

          The Commentary continues: “Generally, the court may

achieve an appropriate sentence through its determination of an

appropriate point within the applicable guideline range for the

instant federal offense, combined with its determination of

whether that sentence will run concurrently or consecutively to

the undischarged term of imprisonment.”   Id.

          The district court manifestly considered the guideline

methodology in sentencing Oser for his part in the heroin

importation conspiracies.   The court determined on the record

that a base offense level of 34 based on the quantity of heroin,

with Oser's criminal history category II,    produced an applicable

guideline range of 168-210 months for the New Jersey offense,

which the court deemed to be the appropriate total sentence for

both the conspiracy offenses.   The district judge stated that he

was departing from the guideline range in Oser’s case because of

the government’s submission of a § 5K1.1 letter.    Transcript of

Sentencing, January 26, 1995 at 62.    The district court

ultimately sentenced Oser to 9 years imprisonment to run

consecutively to the ten month undischarged term of imprisonment

remaining for his New York offense, for a total of 118 months, a

term well below the guideline range.    The court then imposed an

additional one year term of imprisonment pursuant to U.S.S.G. §

2J1.7, making Oser’s total sentence 130 months.

          Though the district court did not expressly announce to

Oser that its calculations were made following the guideline


                                16
methodology, the guidelines nowhere require such formality.     We

have said that a court is free to abandon the penalty prescribed

by the guideline's methodology as long as the court “indicates

its reasons for imposing the penalty in such a way as to allow us

to see that it has considered the methodology.”     Spiers, 82 F.3d

at 1275.

           The court clearly explained why it was not imposing the

conspiracy sentences to run concurrently with the 10 months

remaining on the New York sentence. It first stated:
          I do not think we are in the double
               jeopardy area as a constitutional
               matter, nor do I think I have
               authority to conclude, while it's
               just not good policy and,
               therefore, I won't do it, I think
               that Congress has been directive.
               It says there shall be an
               enhancement when you commit a crime
               when you're on release and I don't
               think I can avoid the impact of
               that unless I'm to conclude that
               the statute as applied here would
               be unconstitutional; it would be
               imposing a double punishment. And
               I don't think it is.


Transcript of Sentencing, January 26, 1995 at 20.

           Later, in sentencing, the district court stated as

follows:
I have concluded . . . in constructing the sentence that I
               will not follow the recommendation of the
               defense that I make this sentence concurrent
               with the sentence which Mr. Oser is now
               serving in New York.
          . . . I think it would not be harmonious
               with the proposition that an
               enhancement is to be made of the
               sentence to be imposed today for
               the reason that Mr. Oser went out
               while on release from the New York
               charges and engaged in independent
               criminal activity


                                17
           . . . to then make today’s sentence
                concurrent with the New York
                sentence. [It] would not be
                harmonious with that enhancement.


Id. at 62-63.   The district court's explanation that a concurrent

sentence would run against the policy of Congress and the

Sentencing Guidelines in requiring that the sentence be enhanced

if the crime was committed while on release elsewhere was a

satisfactory basis for the use of a methodology different from

that suggested by the Application Note.   We therefore reject

Oser's claim of error in sentencing him to a term of imprisonment

consecutive to that which he was serving in the New York charge.
                                III.

           Oser's final claim is that the district court erred in

placing him in Criminal History Category II.   Under U.S.S.G. §

4A1.1, the district court is to "[a]dd 3 points for each prior

sentence of imprisonment exceeding one year and one month"

(emphasis added).   Oser contends that the error was counting his

New York conviction as a “prior sentence.”   Repeating his earlier

analysis, Oser argues that criminal history points should not

have been assigned for the New York crime since that offense

should be regarded as “part of the instant offense” under

U.S.S.G. § 4A1.2(a)(1), and part of a “common scheme or plan”

under United States v. Hallman, 23 F.3d 821, 825 (3d Cir.), cert.
denied, 115 S.Ct. 216 (1994).

           Oser did not raise this objection at his sentencing

hearing, and agreed to a Criminal History Category II at that

time.   Thus we review the court’s determination only for plain



                                18
error.   See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S.

725, 735-37, 113 S.Ct. 1770, 1778-78 (1993) (“plain error” must

be particularly egregious and seriously affect the fairness,

integrity or public reputation of judicial proceedings).

          Under Application Note 1 to § 4A1.2(a), “prior

sentence” means a sentence “imposed prior to sentencing on the

instant offense, other than a sentence for conduct that is part

of the instant offense.”    “Conduct that is part of the instant

offense,” in turn means, “conduct that is relevant conduct to the

instant offense under the provisions of § 1B1.3 (Relevant

Conduct).”   U.S.S.G. § 4A1.2(a)(2), comment. (n.1) (1994).     As

explained above, Oser’s currency underreporting offense played no

part in the determination of his base offense level for the

sentence on the heroin conspiracies offense; thus, the conduct

for which he was previously sentenced was not the type of

“Relevant Conduct” that would preclude a separate computation of

criminal history points under § 4A1.2(a)(2).

          Contrary to Oser’s suggestion, our decision in Hallman,

23 F.3d at 825, does not require a contrary holding.     In Hallman,

where the defendant was indicted in federal court for the offense

of stealing mail in the form of blank checks, we concluded that

the conduct underlying the defendant's state conviction for

forgery was part of the same scheme and conduct as the federal

offense and therefore could not count as a "prior sentence" under

U.S.S.G. § 4A1.2(a)(1).    See id. at 826.   In that case, the two

crimes were necessarily related; one would not attempt to steal

blank checks without intending ultimately to commit forgery.


                                 19
          Here, there is nothing to show a relationship between

the offense of underreporting the currency carried and the drug

conspiracy offenses.   Indeed, the New Jersey indictment to which

Oser pled guilty alleged an agreement and acts that began after

Oser’s arrest for underreporting the currency charges.

Therefore, the district judge did not plainly err in assessing

Oser criminal history points for his New York offense pursuant to

§ 4A1.1(a).
                               IV.

          For the reasons set forth above, we will affirm the

district court's judgment of conviction and sentence.




                                20
United States v. Neil Oser
No. 95-1107/1108




ROSENN, J., dissenting.

           I believe that the appellant's indictment and

conviction in the United States District Court for the Eastern

District of New York on the charge of failing to report the

transportation of cash abroad was part and parcel of the larger

conspiracy for which he was indicted and sentenced in the Eastern

District of Pennsylvania (for importing heroin into the United

States and money laundering), as well as the conspiracy for which

he was indicted in the District of New Jersey.   Thus, the

sentences for the Pennsylvania and New Jersey offenses should

have been imposed under U.S.S.G. § 5G1.3(b) concurrently to the

undischarged term of imprisonment that he was then serving under

the New York indictment and sentence.   I, therefore, respectfully

dissent.



                                I.




                                21
            The two conspiracies in Pennsylvania and New Jersey

involved the alleged importation of heroin from Nigeria.     (Maj.

op. at 6)   The arrest in New York at the JFK Airport on June 19,

1991 was for failure to report $790,000 in cash that he was

carrying as he was about to board a flight for Lagos, Nigeria.

Oser pled guilty to the charges in New York on November 26, 1991,

and the court released him on bail pending the sentence which it

imposed on July 16, 1993.    The district court imposed sentence on

Oser for the Pennsylvania and New Jersey offenses while he was

serving time for the New York offense for failure to report the

currency he was carrying.    At the time of the Pennsylvania

sentences, Oser had served 18 months of his 28 month New York

sentence.    The district court determined that his ten-year

sentence on the Pennsylvania and New Jersey offenses should run

consecutively to this sentence.    Thus, Oser's time on this

sentence would not even begin to run until he had served ten more

months in prison.    Oser argues now, as he did at sentencing, that

this determination fails to consider the applicable U.S.S.G.

guideline provision, § 5G1.3(b).

            This Guideline provision assists the courts in

sentencing a defendant who is subject to an undischarged term of

imprisonment.    There are three subparts which limit the court's

discretion.    Part (a) is applicable only when the instant offense

was committed either while the defendant was serving a sentence,

or after sentencing but before imprisonment, and mandates a

consecutive sentence.    The parties agree that this subpart is

inapplicable, as Oser's subsequent offenses occurred between the


                                  22
time of his guilty plea and his sentencing.    Part (b) applies

only if the undischarged term of imprisonment resulted from

offenses that were fully taken into account in the determination

of the offense level for the present offense, and mandates that

the prison terms run concurrently.    It provides that if

subsection (a) does not apply and "the undischarged term of

imprisonment resulting from offenses that have been fully taken

into account in the determination of the offense level for the

instant offenses the sentence for the instant offenses shall be

imposed to run concurrently to the undischarged term of

imprisonment."   Part (c), called the policy statement, applies in

all other cases, and permits the court to impose a consecutive,

partially consecutive, or concurrent sentence as desired in order

to achieve a reasonable incremental punishment for the instant

offense.

           I believe that the record establishes that Oser's New

York conduct was taken into account.    Under a reading of

Application note 2 to § 5G1.3, subsection (b) could include

federal charges in other jurisdictions for the same criminal

conduct, or for different criminal charges that were part of the

same course of conduct.   Here, the charges   in all three states

stem from one ongoing course of criminal conduct concerning a

large-scale conspiracy to import heroin.

           The Government argues that the Pennsylvania and New

Jersey indictments, although they involve a continuation of

Oser's drug smuggling activities, cover different time periods

and different co-conspirators.   Therefore, the Government claims,


                                 23
they are different courses of conduct.   This, it seems, is

contradicted by their consolidation and by the concurrent

sentences imposed for the Pennsylvania and New Jersey charges.

          More importantly, the conduct for which Oser was

sentenced in New York, failure to file a currency report, is

cited as an overt act of the conspiracy charged in Pennsylvania.

 The Government has thus acknowledged that the act is part of the

same course of conduct.   Because it has used this act to charge

Oser with conspiracy, it is estopped from arguing on appeal that

the act is wholly irrelevant to the conspiracies charges to which

he pled guilty.   The Government has, in effect, recognized that

the New York offense is part of the same course of conduct as the

present crime, by including it as an overt act of the conspiracy

described in the present indictment.   This is supported by the

response of Seth Weber, Assistant United States Attorney, who at

sentencing of Oser in New York City made this statement:
"And when you talk about these criminal charges
               being an aberration for Mr. Oser we
               may be missing the boat here
               because we're dealing with criminal
               conduct that spanned two years,
               from 1991 through 1993, that we
               know of. 1991 when he attempted to
               take $800,000 in cash out of the
               country without reporting it
               knowing that it was a result of
               drug proceeds. That's what started
               this ball rolling for Mr. Oser."



Therefore, subsection (b) of § 5G1.3 applies.

          The point I make is not only of importance to Oser but

to the federal criminal justice system generally.   It is not

unusual for some prosecutors to split up a single conspiracy and


                                24
attempt to charge several discrete conspiracies, with indictments

in different jurisdictions, and thereby obtain multiple

sentences.   In United States v. McCormick, 58 F.3d 874 (2d Cir.

1995), the defendant was sentenced in two district courts in the

Second Circuit for separate frauds against two separate banks,

each part of an ongoing fraud conspiracy.   The court considering

the second indictment dismissed 31 of the 41 counts, in

recognition of possible double jeopardy issues, but permitted

prosecution of the other ten counts.   It then sentenced the

defendant to serve his sentence consecutive to the preceding

sentence.4   Although the Second Circuit affirmed this decision,

it noted:
[T]his result unfairly punishes McCormick for
               events to a real extent outside his
               control, namely, his prosecution in
               two separate fora for a single
               pattern of fraudulent activity. It
               is acknowledged by the Government
               that if McCormick had been subject
               to a single prosecution for his
               crimes, he would have received, at
               most, a single 46-month term of
               imprisonment. That he is now
               subject to an additional,
               consecutive 35-month term creates a
               perverse incentive for prosecutors.
                In order to maximize the sentences
               received by defendants, prosecutors
               can, where possible, try defendants
               in multiple jurisdictions for
               different but related crimes. As
               mentioned above, we are bound by
               the Guidelines and the law of this
               circuit to reach the result in this
               case. In our view, however, this
               problem deserves a renewed, close

4
 The district court in that case specifically noted the existence
of U.S.S.G. § 5G1.3, and determined that this was a suitable
incremental punishment.



                                25
               examination by the Sentencing
               Commission.



McCormick, at 878.

The effect of the prosecutions in the three jurisdictions in the

instant case is to maximize Oser's sentence for what is, in

effect, the same course of conduct.   This is impermissible under

the Guidelines, and unreasonable.

          Prosecutors have a great deal of discretion in the way

they choose to frame charges against a defendant.   In this case,

rather than limit themselves to Oser's substantive offenses, the

prosecutors set out to charge him with conspiracy, and cited his

substantive offenses as overt acts in furtherance of that

conspiracy.   This is well within prosecutorial discretion.

However, having chosen to frame their charges in such a fashion,

they are also bound by its limitations.   Oser's failure to file a

currency report is either a substantive offense in New York, or

an overt act in furtherance of the Pennsylvania conspiracy.

However, it borders on double jeopardy to permit prosecutors to

have it both ways, and for the court to sentence Oser twice for

conduct essentially part of the conspiracy for which he is being

separately sentenced.   The gravamen of Oser's concern is not that

he was indicted in three jurisdictions, but having been indicted

in New York for conduct that was in furtherance of the overall

conspiracy, the ultimate sentence imposed in Pennsylvania should

have been concurrent to the sentence remaining to be served under

the New York indictment, and not consecutive.




                                26
            Therefore, when a defendant is convicted of conspiracy

in one jurisdiction and the evidence includes criminal conduct

for which he has been previously prosecuted and convicted in

another federal jurisdiction, or he has been previously

prosecuted and convicted for different criminal charges that were

part of the same conspiratorial course of conduct, the sentence

imposed in the later conviction must be concurrent with the first

sentence.

            The district court in Pennsylvania, therefore, should

have applied U.S.S.G. § 5G1.3(b) in sentencing Oser and have the

sentence it imposed run concurrently with the portion of the New

York sentence which had not yet been served.

            Accordingly, I respectfully dissent.




                                 27
