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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-2339 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                        MIGUEL CARABALLO, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br>       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Stahl, Circuit Judge, <br>             John R. Gibson,* Senior Circuit Judge, <br>                   and Lynch, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Jonathan R. Saxe, with whom Twomey & Sisti Law Offices was on <br>brief, for appellant. <br>     Jean B. Weld, Assistant United States Attorney, with whom Paul <br>M. Gagnon, United States Attorney, was on brief, for appellee. <br> <br> <br> <br> <br> <br>December 29, 1999 <br> <br> <br> <br>                                 <br>                                 <br>_____________________ <br>*of the Eighth Circuit, sitting by designation.

  STAHL, Circuit Judge.  Defendant-appellant Miguel <br>Caraballo appeals the sentence imposed following his conviction for <br>conspiracy to commit interstate transportation of stolen property <br>in violation of 18 U.S.C.  371.  The issue on appeal is the <br>district court's conclusion that a portion of Caraballo's sentence <br>should run consecutively to a state sentence he was already serving <br>for conduct related to the federal offense.  Caraballo argues that <br>the relationship between the conduct underlying the two offenses <br>requires wholly concurrent sentencing under section 5G1.3 of the <br>United States Sentencing Guidelines.  We disagree, and therefore <br>affirm. <br>                               I. <br>A.  Legal Context <br>  The Sentencing Guidelines (the "Guidelines") prescribe <br>a range of months appropriate for each federal offender's sentence.  <br>The recommended range takes into account the "offense level" for <br>the violation being punished (the "instant offense") and the <br>defendant's "criminal history category."  U.S.S.G.  5A.  The <br>"offense level" consists of a "base offense level" corresponding to <br>the crime for which the defendant has been convicted, as modified <br>by mandatory "adjustments" which take account of certain <br>aggravating or mitigating factors.  In determining the applicable <br>offense level, district courts must consider (and must only <br>consider) conduct that is "relevant" pursuant to U.S.S.G.  1B1.3.  <br>  Section 5G1.3 of the Guidelines addresses cases in which <br>the defendant, at sentencing, is already serving a term of <br>imprisonment.  Subsection 5G1.3(b) requires that when the <br>undischarged term "resulted from offense(s) that have been fully <br>taken into account in the determination of the offense level for <br>the instant offense," the new sentence must run concurrently with, <br>rather than consecutively to, the undischarged term.  U.S.S.G. <br> 5G1.3(b).  Where the prior offenses have not been "fully taken <br>into account in the determination of the offense level for the <br>instant offense," however,  5G1.3(c) allows the sentence for the <br>instant offense to "be imposed to run concurrently, partially <br>concurrently, or consecutively to the prior undischarged term . . . <br>to achieve a reasonable punishment for the instant offense."  Id. <br> 5G1.3(c). <br>  At issue is whether conduct that is "relevant" under <br> 1B1.3 must necessarily be deemed to have been "fully taken into <br>account in the determination of the offense level for the instant <br>offense," irrespective of whether or not that conduct in fact <br>altered the sentencing range for the offense.  We find that it need <br>not, and that here, where "relevant" conduct has not resulted in <br>any change in the defendant's offense level -- or even in his <br>criminal history category -- the district court appropriately <br>eschewed  5G1.3(b) in favor of  5G1.3(c)'s discretionary <br>approach. <br>B.  Factual Background <br>  Between 1993 and 1996, Caraballo and several confederates <br>committed numerous burglaries throughout New England.  Though not <br>all of the conspirators participated in each burglary, the group's <br>members assisted one another in various ways, engaging in joint <br>research, planning, and execution of the heists.   <br>  On November 8, 1995, Caraballo and two partners, Valdir <br>Alvarenga and Nelson Rivera, attempted to burgle Bernie's Appliance <br>Store in Manchester, Connecticut ("Bernie's").  Connecticut police <br>officers had learned of the plan prior to the attack, however, and <br>were lying in wait inside and outside of Bernie's.  Upon noticing <br>the officers' presence, Rivera fled the store.  During Caraballo's <br>plea colloquy, the district court described the ensuing events, to <br>which Caraballo admitted, thusly: <br>    [T]here was a confrontation between officers <br>  and Alvarenga and Caraballo inside the store.  <br>  Caraballo, [who] was armed with a pair of <br>  long-handled cutting shears, . . . moved <br>  towards one of the officers in . . . an <br>  offensive attack position.  At that point the <br>  police holstered their weapons.   <br>      Alvarenga noticed that the officers <br>  were focused on Caraballo and moved into a <br>  position to attack one of the officers.   <br>      The police then observed Alvarenga, <br>  armed with an ax, approaching and instructed <br>  him to drop the weapon, which he refused to <br>  do. . . . [T]he officer was forced to shoot, <br>  and . . . Alvarenga . . . was mortally <br>  wounded. <br>   <br>Caraballo then fled the premises, entered a vehicle outside and <br>began to drive away.  Before Caraballo could effectuate his escape, <br>a police officer squeezed his torso through the passenger-side <br>window and ordered him to stop.  When Caraballo continued driving, <br>the officer shot him in the leg.  Caraballo accelerated, throwing <br>the officer to the ground, and then attempted to run over another <br>officer.  Shortly thereafter he was involved in an accident, which <br>led to his apprehension and arrest.  No property was taken from <br>Bernie's. <br>  Caraballo was prosecuted in Connecticut's Superior Court <br>on charges stemming from the Bernie's burglary.  Although the <br>record is not entirely clear, it appears that he pleaded guilty to <br>burglary and assault on an officer.  In any event, on June 28, <br>1996, the court sentenced Caraballo to an eight-year prison term <br>for the former and a concurrent prison term for the latter. <br>  Caraballo also faced federal charges in the District of <br>New Hampshire, where he was indicted for conspiracy to commit <br>interstate transportation of stolen property in violation of 18 <br>U.S.C.  371.  Twenty-two burglaries were listed as overt acts in <br>furtherance of the conspiracy.  One of the listed acts was his <br>"unlawful[] ent[ry into] a business operated as Bernie's Store, <br>Manchester, Connecticut."  Caraballo pleaded guilty to the <br>conspiracy charge. <br>  Caraballo's Presentence Report ("PSR") recommended that <br>he be held accountable for four burglaries resulting, collectively, <br>in losses of $265,334.00.  The PSR also recommended that Caraballo <br>be held accountable for five other burglaries, resulting in either <br>indeterminate loss or, as in the attempted Bernie's robbery, no <br>loss at all.  The PSR proposed a base offense level of sixteen (16) <br>under U.S.S.G.  2X1.1 and 2B1.1(b)(1)(K).  This calculation <br>included fourteen (14) levels to reflect the loss of $265,334.00 <br>plus two (2) additional levels because the burglaries involved <br>"more than minimal planning."  U.S.S.G.  2B1.1(b)(4)(A).  The PSR <br>then recommended an additional two (2) levels for reckless <br>endangerment during flight (stemming from Caraballo's escape from <br>Bernie's), see U.S.S.G.  3C1.2, and two levels for obstruction of <br>justice (stemming from an aborted plot to kill potential adverse <br>witnesses), see U.S.S.G.  3C1.1.  The report subtracted three (3) <br>levels for Caraballo's acceptance of responsibility, resulting in <br>an adjusted offense level of seventeen (17).  See U.S.S.G.  3E1.1.  <br>Caraballo's criminal history category, which did not take into <br>account any aspect of the Bernie's incident, was five (5).  <br>Caraballo's adjusted offense level and criminal history category <br>together resulted in a sentencing range of forty-six to fifty-seven <br>months.  See U.S.S.G.  5A.  The PSR concluded that Caraballo's <br>sentence could be imposed to run concurrently with, partially <br>concurrently with, or consecutively to the prior undischarged term <br>of imprisonment relating to his Connecticut conviction. <br>  Caraballo argued for a wholly concurrent sentence <br>pursuant to U.S.S.G.  5G1.3(b).  He contended that because he <br>received a two-level upward adjustment in his total offense level <br>for reckless endangerment relating to his escape from Bernie's, <br>that burglary -- for which he was then serving his Connecticut <br>sentence -- had been "fully taken into account" for the purpose of <br>establishing his offense level.   <br>  The government requested wholly consecutive sentencing <br>pursuant to U.S.S.G.  5G1.3(c).  The prosecution observed that no <br>upward adjustment had been assigned for the Bernie's incident <br>itself.  Indeed, because no merchandise was stolen from the store, <br>no upward adjustment could have been assigned.  Moreover, the <br>Bernie's incident had not been relied upon in setting Caraballo's <br>criminal history category.  For these reasons, the government <br>argued that the crimes for which Caraballo was serving time in <br>Connecticut were not "fully" taken into account, as required in <br>order for  5G1.3(b) to take effect, and that his sentence should <br>run consecutively to the undischarged Connecticut term.   <br>  On November 18, 1998, the district court sentenced <br>Caraballo.  The court ruled that the Bernie's incident had not been <br>"fully taken into account" in the offense level determination.  The <br>court reasoned as follows:  "First of all . . . there were a number <br>of . . . obviously criminal offenses[] that occurred there, all of <br>which were not charged . . . [and for some of which] the defendant <br>does not stand convicted and sentenced."  Moreover, "[t]here was no <br>dollar loss from the Bernie's burglary, and therefore, [there has] <br>been no adjustment to the defendant's overall offense level under <br>[U.S.S.G. ] 2B1.1 . . . .  While reckless endangerment has taken <br>some of these . . . offenses into account, . . . it certainly <br>hasn't taken all of what went on that evening . . . into account <br>fully."  Thus, the court determined that the sentence was governed <br>by U.S.S.G.  5G1.3(c), not  5G1.3(b).  Caraballo received a <br>fifty-seven (57) month sentence, only nine months of which were to <br>run concurrently with his undischarged Connecticut sentence.  <br>  Caraballo now challenges the district court's decision to <br>impose only nine months of the 57-month sentence on a concurrent <br>basis.  He does not challenge the district court's particular <br>division of concurrent and consecutive time under  5G1.3(c), but <br>only the court's decision to apply that subsection rather than <br> 5G1.3(b). <br>                              II. <br>A.  Standard of Review <br>  In reviewing a district court's application of a <br>sentencing guideline, we utilize a bifurcated process.  "First, we <br>review the guideline's legal meaning and scope de novo.  Next, we <br>review the court's factfinding for clear error, giving due <br>deference to the court's application of the guidelines to the <br>facts."  United States v. Thompson, 32 F.3d 1, 4 (1st Cir. 1994) <br>(internal citations omitted); see also United States v. Florence, <br>143 F.3d 11, 12 (1st Cir. 1998). <br>  Unlike many  5G1.3 controversies, this appeal requires <br>a purely legal determination, and thus calls for de novo review.  <br>Disputes involving  5G1.3 have almost invariably turned on whether <br>or not the prior undischarged term rested on a conviction for <br>conduct that was "relevant" to the instant offense.  Typically, as <br>in many of the cases cited by the parties, the central issue has <br>been whether the conduct was "relevant" by virtue of having <br>constituted "part of a common scheme or plan."  That inquiry, <br>governed by U.S.S.G.  1B1.3, requires a factual determination as <br>to whether the two violations were "substantially connected" by <br>common victims, purposes, modus operandi, or accomplices.  See, <br>e.g., United States v. Joost, 133 F.3d 125, 132 (1st Cir. 1998); <br>United States v. Sheahan, 31 F.3d 595, 599 (8th Cir. 1994); United <br>States v. McCaskey, 9 F.3d 368, 375-76 (5th Cir. 1993); United <br>States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991).  Such a <br>factual determination merits review only for clear error. <br>  This appeal, however, is atypical.  Caraballo was <br>convicted and sentenced in Connecticut for the burglary at Bernie's <br>and for his assault upon an officer during his escape from <br>Bernie's.  He does not dispute the district court's factual finding <br>that the burglary and the assault constitute  1B1.3 "relevant <br>conduct" for the purposes of sentencing the instant offense.  <br>Rather, he raises a purely legal question: Amidst undisputed <br>factual findings and conduct that is all admittedly "relevant," how <br>are courts to interpret U.S.S.G.  5G1.3(b)'s term "fully taken <br>into account"?  When interpreting a Guideline, "we cede no <br>deference to the district court's legal conclusion."  United States <br>v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).  Our review, <br>therefore, is de novo. <br>B.  Interpreting  5G1.3 <br>  Caraballo contends that, as "relevant conduct," the <br>offenses underlying his Connecticut sentence were necessarily, as <br>a matter of law, "fully taken into account in the determination of <br>the offense level for the instant offense," irrespective of whether <br>that conduct influenced the offense level.  We disagree. <br>  1.      <br>  Caraballo's argument rests on the contention that <br> 5G1.3's reference to conduct "fully taken into account" denotes <br>all  1B1.3 "relevant conduct."  Because all relevant conduct is <br>necessarily "taken into account in the determination of the offense <br>level for [an] instant offense," Caraballo's construction would <br>require us to treat  5G1.3(b)'s term "fully" as surplusage which <br>does not at all modify the phrase "taken into account."  This we <br>may not do. <br>  Any conduct that is "relevant" to the instant offense <br>under  1B1.3 must be "taken into account in the determination of <br>the offense level for the instant offense."  Section 1B1.3 uses <br>mandatory language:  The instant offense's base offense level, <br>specific offense characteristics, and adjustments all "shall be <br>determined on the basis of" the conduct  1B1.3 defines as <br>relevant.  U.S.S.G.  1B1.3(a) (emphasis added).  Under the <br>Guidelines, then, relevant conduct must be "taken into account" by <br>the sentencing judge.  Moreover, no other conduct -- no irrelevant <br>conduct -- may be considered.  See id.  In a case such as <br>Caraballo's, where the conduct in which the undischarged term is <br>grounded is concededly "relevant" to the instant offense, that <br>conduct, and only that conduct, is necessarily "taken into account" <br>for the purposes of establishing an appropriate sentence.  <br>  If all conduct that is "taken into account" is <br>necessarily "relevant" under  1B1.3, then any interpretation <br>positing that relevance is all that is demanded by  5G1.3(b)'s use <br>of the phrase "fully taken into account" would render meaningless <br>the word "fully."  We are prohibited from adopting any such <br>construction, for it is axiomatic that  <br>    "[a]ll words and provisions of statutes are <br>  intended to have meaning and are to be given <br>  effect, and no construction should be adopted <br>  which would render statutory words or phrases <br>  meaningless, redundant or superfluous."  We <br>  think that this principle is fully applicable <br>  to the sentencing guidelines, which, although <br>  they are not statutes, are to be construed in <br>  much the same fashion. <br>United States v. DeLuca, 17 F.3d 6, 10 (1st Cir. 1994) (quoting <br>Lamore v. Ives, 977 F.2d 713, 716-17 (1st Cir. 1992)) (internal <br>citations omitted); see also South Carolina v. Catawba Indian <br>Tribe, Inc., 476 U.S. 498, 510 n.22 (1985) (emphasizing the <br>"elementary canon of construction that a statute should be <br>interpreted so as not to render one part inoperative"); Colautti v. <br>Franklin, 439 U.S. 379, 392 (1979) (same); Lopez-Soto v. Hawayek, <br>175 F.3d 170, 173 (1st Cir. 1999) (same).  "Fully" cannot, then, be <br>rendered meaningless, and the term "fully taken into account," in <br>turn, cannot be read to be synonymous with the term "relevant <br>conduct" as defined in  1B1.3.  <br>  2. <br>  While the Guidelines' structure requires that <br> 5G1.3(b)'s "fully" must mean something, and that not all <br>"relevant conduct" is necessarily "fully taken into account in the <br>determination of the offense level for the instant offense," <br>precisely what "fully" means -- and precisely which subset of <br>"relevant conduct" is specified by that term -- requires <br>consideration.  As described below,  5G1.3's central aim is to <br>ensure that no defendant is punished twice for the same crime, <br>while preserving the district courts' discretion where only certain <br>elements of the crime punished in one proceeding also impact crimes <br>punished in another.  Where, as here, (1) the $0 loss from the <br>Bernie's burglary resulted in no change in Caraballo's offense <br>level, and could not have so resulted, (2) the Bernie's burglary <br>did not impact Caraballo's criminal history category, and (3) <br>Carballo's federal conspiracy conviction was grounded in eight <br>other burglaries in addition to the Bernie's heist, the district <br>court properly concluded that the state offense was not "fully <br>taken into account in the determination of the offense level for <br>[Caraballo's] instant [federal] offense."  In these circumstances, <br>a partially consecutive sentence will not result in duplicative <br>punishment. <br>  "[S]tatutory construction begins with the actual language <br>of the provision."  United States v. Rivera, 131 F.3d 222, 224 (1st <br>Cir. 1997); see also Landreth Timber Co. v. Landreth, 471 U.S. 681, <br>685 (1985); United States v. Thompson, 32 F.3d 1, 5 (1st Cir. <br>1994).  However, where a provision uses terminology with no clear <br>meaning, courts must interpret such language with reference to the <br>manifest statutory purpose.  "The chief objective of statutory <br>interpretation is to give effect to the legislative will."  <br>Passamaquoddy Tribe v. Maine, 75 F.3d 784, 788 (1st Cir. 1996); see <br>also Negonsott v. Samuels, 507 U.S. 99, 104 (1993) ("'Our task [in <br>interpreting statutes] is to give effect to the will of Congress.'" <br>(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 <br>(1982))); Evans v. Commissioner, 933 F.2d 1, 6 (1st Cir. 1991) <br>(consulting statute's "basic purpose" after finding text <br>susceptible to multiple interpretations). <br>  Subsection 5G1.3(b)'s phrase "fully taken into account" <br>is left undefined.  We thus strive to interpret it in a manner <br>consistent with  1B1.3's definition of "relevant conduct" and the <br>principles outlined above.  Conduct "taken into account" must <br>include all "relevant conduct" under  1B1.3, but neither <br> 5G1.3(b) itself nor the accompanying notes elaborate which <br>particular subset of "relevant conduct" is signified by the word <br>"fully."  Thus, in interpreting  5G1.3, we must attempt to <br>construe the provision in the manner that best effects its intended <br>purpose.  See United States v. DeLuca, 17 F.3d 6, 10 (1st Cir. <br>1994) (noting that the tools of statutory construction apply to the <br>Guidelines). <br>  In Witte v. United States, 515 U.S. 389 (1995), the <br>Supreme Court had occasion to consider the purpose behind  5G1.3.  <br>A majority of the Court found that the section was designed "to <br>mitigate the possibility that the fortuity of two separate <br>prosecutions will grossly increase a defendant's sentence."  Id. at <br>405.  Where a defendant's related crimes "are not prosecuted in the <br>same proceeding . . .  5G1.3 . . . attempts to achieve some <br>coordination of sentences . . . with an eye toward having such <br>punishments approximate the total penalty that would have been <br>imposed had the sentences . . . been imposed at the same time <br>(i.e., had all the offenses been prosecuted in a single <br>proceeding)."  Id. at 404-05.  We have embraced this interpretation <br>of the purpose animating  5G1.3, see United States v. Joost, 133 <br>F.3d 125, 132 (1st Cir. 1998) (stating that section's "core <br>purpose" is "to address the unfairness that would result from <br>receiving a second sentence for activities that were considered as <br>relevant conduct in a prior proceeding" (quoting United States v. <br>Kimble, 107 F.3d 712, 714 (9th Cir. 1997))), as have several other <br>courts of appeals, see, e.g., United States v. Dorsey, 166 F.3d <br>558, 562 (3d Cir. 1999); United States v. Fuentes, 107 F.3d 1515, <br>1523 (11th Cir. 1997); Prewitt v. United States, 83 F.3d 812, 817 <br>(7th Cir. 1996). <br>  It is thus widely acknowledged that  5G1.3 is directed <br>at the prevention of duplicative sentencing for any particular <br>conduct.  Only one interpretation would conform  5G1.3(b)'s "fully <br>taken into account" language to this purpose:  Whereas all  1B1.3 <br>"relevant conduct" must be "taken into account in the determination <br>of the offense level for the instant offense," only relevant <br>conduct that has resulted in -- or that could have resulted in -- <br>a change in the instant offense's "offense level" is "fully taken <br>into account" under  5G1.3(b).  That is, only when the defendant's <br>undischarged term of imprisonment "resulted from offense(s) that" <br>not only were "relevant conduct" vs-a-vs the instant offense, but <br>also impacted (or could have impacted) the defendant's offense <br>level or criminal history category, is the district judge bound to <br>choose concurrent sentencing.  Otherwise, the judge is free to <br>impose a concurrent, partially concurrent, or consecutive sentence <br>under  5G1.3(c).  This framework ensures that offenders will not <br>be sentenced doubly for any given criminal act.  However, it also <br>preserves the district court's authority to impose appropriate <br>punishment when some aspects of the offender's conduct are <br>punishable in one jurisdiction and other aspects are punishable in <br>another.  <br>  3. <br>  Finally, where the defendant's "instant offense" actually <br>incorporates multiple offenses, only some (or one) of which, if <br>sentenced alone, would merit concurrent sentencing under <br> 5G1.3(b), that subsection's purpose is best served by a rule <br>allowing sentencing of the combined "instant offense" pursuant to <br> 5G1.3(c).  We concur with the Court of Appeals for the Ninth <br>Circuit, which has held: <br>    A rule requiring application of  5G1.3(b) <br>  where only some of the offenses for which the <br>  defendant is serving the undischarged prison <br>  term were taken into account would require <br>  concurrent sentences in situations where <br>   5G1.3(b)'s rationale would not fully apply.  <br>  On the other hand, rejection of  5G1.3(b) in <br>  such multiple-offenses situations would leave <br>  the court free fully to consider, under <br>   5G1.3(c), all of the potential permutations <br>  and complexities that arise in a multiple- <br>  offenses context. <br> <br>United States v. Kimble, 107 F.3d 712, 715 (9th Cir. 1997). <br> <br>  For example, we see no reason why a defendant already <br>serving an undischarged term for multiple offenses, only one of <br>which was "fully taken into account" in determining the instant <br>offense's offense level, should merit a wholly concurrent sentence.  <br>Such an outcome would not serve the purpose animating  5G1.3(b) <br>because the instant offense might well involve violations wholly <br>unrelated to the conduct underlying the undischarged term.  In such <br>a case, each prison term would include time for offenses that were <br>not at all accounted for by the other term; mandatory concurrent <br>sentencing would be inappropriate.  See, e.g., United States v. <br>Myers, 66 F.3d 1364, 1376 (4th Cir. 1995) (allowing consecutive <br>sentencing under  5G1.3(c) where defendants were already serving <br>undischarged term for rape and instant offense level included <br>adjustments for assault and physical injury to the victim, because <br>"there are obvious components of rape that [were] not entirely <br>encompassed by findings of assault and physical injury"). <br>  In multiple-offenses cases of this sort, then, district <br>courts are free, under  5G1.3(c), to choose wholly concurrent, <br>partially concurrent, or wholly consecutive sentencing.  The <br>courts' discretion is cabined, though, by that subsection's <br>requirement that the sentence be designed "to achieve a reasonable <br>punishment for the instant offense."  U.S.S.G.  5G1.3(c).  Thus, <br>for example, when some, but not all, of the conduct from which the <br>underlying term resulted is "fully taken into account" in <br>determining the offense level for the instant offense, it would be <br>appropriate for the sentencing judge to run that portion of the <br>sentence corresponding to such conduct concurrently with the <br>underlying term.  That decision, though, would be governed by <br> 5G1.3(c), not  5G1.3(b). <br>    4. <br>  In summary, when a defendant is serving an undischarged <br>term for conduct all of which has influenced the final "offense <br>level" applicable to the instant offense, the entire sentence for <br>that instant offense must run concurrently with the undischarged <br>term, pursuant to  5B1.3(b).  When none of the conduct related to <br>the undischarged term influences the instant offense's offense <br>level, the district court is free to impose a wholly concurrent, <br>partially concurrent, or wholly consecutive sentence, in accordance <br>with  5G1.3(c).  When some of the conduct underlying an <br>undischarged term impacted the offense level, but other aspects of <br>that conduct did not, the sentencing judge again enjoys discretion <br>under  5G1.3(c), but must remain mindful of that subsection's <br>directive that the combined punishment be "reasonable," and of the <br>overarching purpose of  5G1.3 -- namely, the prevention of <br>duplicative punishment. <br>                              III. <br>  In view of the  5G1.3 mechanism, as we here interpret <br>it, Caraballo's sentence must be affirmed.  Though Caraballo's <br>federal sentence and his Connecticut sentence both punished his <br>attack upon the police officer outside Bernie's, each also <br>addressed conduct that was not taken into account by the other <br>sentence.  Specifically, the federal term (and only the federal <br>term) punished the conspiracy with respect to all the burglaries <br>resulting in losses, as well as Caraballo's aborted plot to murder <br>adverse witnesses, while the Connecticut term (and only the <br>Connecticut term) addressed the failed Bernie's heist.  Because the <br>federal term was not at all impacted by the Bernie's heist, as the <br>result either of a changed offense level or an increased criminal <br>history category, and because that term addressed crimes other than <br>those addressed by the Connecticut sentence, we are confident that <br>the Bernie's burglary falls into the category of conduct that was <br>not "fully taken into account" for  5G1.3(b) purposes.  In <br>contrast, because Caraballo's assault upon the Connecticut police <br>officer, for which he was sentenced in Connecticut, also resulted <br>in a two-level upward adjustment to his instant offense level, that <br>conduct likely was "fully taken into account." <br>  In this case, then, the district court properly applied <br> 5G1.3(c), which allows any combination of concurrent and <br>consecutive sentencing.  Connecticut law permitted enhanced <br>punishment for Caraballo's attempt to rob Bernie's; federal law did <br>not.  No duplicative punishment for the burglary was ever <br>threatened.  Caraballo was only forced to bear the full brunt of <br>all conduct deemed illegal by the relevant sovereign.  To permit <br>consecutive sentencing in such circumstances is merely to preserve <br>the district court's discretion to ensure just punishment for all <br>criminal conduct. <br>  The district court appropriately addressed the risk of <br>punishing Caraballo doubly for his attack upon the Connecticut <br>police officer by exercising its discretion under  5G1.3(c) to run <br>part -- specifically, nine months -- of Caraballo's federal <br>sentence concurrently with his Connecticut sentence.  Caraballo <br>does not challenge, and we do not address, the district court's <br>application of its discretion under  5G1.3(c).   <br>  In short, because not all of the conduct from which <br>Caraballo's Connecticut term resulted influenced his ultimate <br>offense level, not all of it was "fully taken into account" under <br> 5G1.3(b).  The court below thus correctly chose to apply <br> 5G1.3(c) instead.   <br>  Affirmed.</pre>

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