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


10-17-1997

USA v. Higgins
Precedential or Non-Precedential:

Docket
97-5006




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Recommended Citation
"USA v. Higgins" (1997). 1997 Decisions. Paper 244.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/244


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Filed October 17, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5006

UNITED STATES OF AMERICA,

       Appellant.

v.

KENNETH HIGGINS

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Cr. Action No. 95-cr-00206)

Argued on September 25, 1997

Before: COWEN, ROTH and LEWIS, Circuit Judges

(Opinion Filed October 17, 1997)

       Faith S. Hochberg,
       United States Attorney
       Kevin McNulty,
       Assistant United States Attorney
       Allan Tananbaum (Argued)
       Assistant United States Attorney
       970 Broad Street
       Room 502
       Newark, NJ 07102

        Attorneys for Appellant




       John H. Yauch, Esquire (Argued)
       Assistant Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

        Attorney for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

This is an appeal by the government of a criminal
sentencing order. The defendant, Kenneth Higgins, was
sentenced for an offense committed while serving a
previous term of imprisonment. The district court ordered a
portion of the sentence to run concurrently with the
previously imposed sentence. The issue on appeal is
whether the district court properly construed its discretion
to order concurrent sentencing in view of Sentencing
Guideline S 5G1.3. The district court had jurisdiction under
18 U.S.C. S 3231, and we have jurisdiction over the appeal
of the sentence pursuant to 28 U.S.C. S 1291 and 18 U.S.C.
S 3742. Because we find that the district court employed an
erroneous legal standard, we will vacate the judgment of
sentence and remand for resentencing.

I.

On May 5, 1995, a federal grand jury indicted Kenneth
Higgins on a charge of conspiring to mail threatening
communications as prohibited by 18 U.S.C. S 876, in
violation of 18 U.S.C. S 371. While incarcerated in a
Maryland state correctional facility, Higgins caused a letter
to be sent to a corporate executive in New Jersey. The letter
falsely claimed knowledge of a contract to kill the executive.
In the letter, Higgins offered for a $2,500 fee to furnish a
copy of a tape recording which purportedly contained the
name of the person who wanted the executive dead as well
as the actual murder solicitation. The executive contacted
the FBI, which discovered that Higgins had had his
girlfriend send the letter. When questioned, the girlfriend

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admitted typing and mailing the letter at Higgins' direction.
The FBI determined that Higgins was responsible for 10
identical letters which had been sent to executives
throughout the country.

Following his indictment, Higgins pled guilty to
conspiracy to commit mail fraud, a charge carrying a
statutory maximum sentence of 5 years. At the sentencing
hearing on December 11, 1996, Higgins did not dispute the
length of the 5-year term of imprisonment imposed, which
was less than his Guidelines range of 77 to 96 months.1
Higgins did request, however, that the court exercise its
discretion to run all or part of the 5-year sentence
concurrently to his previously imposed state sentence. In
response, the government argued that, because Higgins'
offense was committed while he was serving a term of
imprisonment, Sentencing Guideline S 5G1.3(a) mandated
that the 5-year sentence be imposed consecutive to his
state sentence.

Citing our decision in United States v. Nottingham, 898
F.2d 390 (3d Cir. 1990), the district court held that,
notwithstanding the mandatory language of S 5G1.3(a), a
trial judge had discretion under 18 U.S.C. S 3584(a) to
order a sentence to run concurrently or consecutively.
Believing that a 5-year consecutive sentence would be
excessive punishment in Higgins' case,2 the court ordered
that 48 months of the sentence would run concurrently to
his undischarged state sentence and 12 months would run
consecutively.
_________________________________________________________________

1. The Guideline range was a product of the offense level of the mail
fraud charge and Higgins' long criminal history. Higgins had previously
been convicted of rape, assault with intent to rape and battery, robbery
with a deadly weapon, and assault with intent to maim. He had also
been convicted of a number of offenses committed while in detention.
Since 1987, he had been serving essentially a 35-year sentence in the
so-called "Super Max" Maryland Correctional Adjustment Center.

2. The court found that Higgins, who was already 27 years of age and
had been in prison from age 17, would not be eligible for release from his
state sentence for at least 7 to 10 years. The judge stated that
incarcerating Higgins for an additional 5 years would not be cost
effective, fair, or just, and that Higgins should exercise this
"opportunity
for redemption" while he was still relatively young.

                                3



II.

Our review of a construction of the Sentencing Guidelines
is plenary. United States v. Oser, 107 F.3d 1080, 1083 (3d
Cir. 1997); United States v. Holifield, 53 F.3d 11, 13 (3d Cir.
1995). On appeal, the government argues that the district
court erred in its reliance on Nottingham and that the court
did not have discretion to order any portion of Higgins'
sentence to run concurrently. In particular, the government
contends that, unlike the version of S 5G1.3(a) criticized in
Nottingham, the amended S 5G1.3(a) reposits sufficient
overall discretion with the sentencing court to be
compatible with 18 U.S.C. S 3584(a). Higgins, on the other
hand, maintains that S 5G1.3(a) is invalid to the extent that
it removes any of the trial court's discretion to order
concurrent sentencing and that the court had discretion in
any event to order a downward departure from the
guidelines. We hold that the court below misapplied
Nottingham and that it misconstrued its discretion under
S 5G1.3.

III.
The United States Sentencing Commission is empowered
under 28 U.S.C. S 994(a) to promulgate guidelines for
sentencing courts to use, including "a determination
whether multiple sentences to terms of imprisonment
should be ordered to run concurrently or consecutively."
28 U.S.C. S 994(a)(1)(D) (1994). While not legislative
enactments, the guidelines are binding on courts with the
force of law. See Mistretta v. United States, 488 U.S. 361,
391 (1989) ("[T]he Guidelines bind judges and courts in the
exercise of their uncontested responsibility to pass sentence
in criminal cases."); Nottingham, 898 F.2d at 393. Section
5G1.3 of the guidelines provides:

       S 5G1.3 Imposition 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

                                4



       instant offense shall be imposed to run consecutively
       to the undischarged term of imprisonment.

       (b) If subsection (a) does not apply, and the
       undischarged term of imprisonment resulted from
       offense(s) that have been fully taken into account in
       the determination of the offense level for the instant
       offense, the sentence for the instant offense shall be
       imposed to run concurrently to the undischarged term
       of imprisonment.

       (c) (Policy Statement) In any other case, the sentence
       for the instant offense may be imposed to run
       concurrently, partially concurrently, or consecutively to
       the prior undischarged term of imprisonment to
       achieve a reasonable punishment for the instant
       offense.

U.S.S.G. S 5G1.3 (1995).

Thus, in two instances S 5G1.3 removes a sentencing
court's discretion to impose a concurrent or consecutive
sentence: (1) when the subsequent offense was committed
while serving (or awaiting to serve) a term of imprisonment,
in which case consecutive sentencing is mandatory; and (2)
when the prior offenses have already been taken into
account in determining the offense level, in which case
concurrent sentencing is mandatory. In any other
circumstances, the choice of a concurrent or a consecutive
sentence is at the discretion of the district court.

The district court relied on our decision in United States
v. Nottingham for the proposition that S 5G1.3(a) is invalid
because that section, which mandates a consecutive
sentence, conflicts with 18 U.S.C. S 3584(a), which provides
generally that a district court has discretion to order either
a concurrent or consecutive sentence. In Nottingham, the
defendant had been convicted of a series of offenses
committed while on parole. At that time, S 5G1.3 provided:

       Convictions on Counts Related to Unexpired Sentences

       If at the time of sentencing, the defendant is already
       serving one or more unexpired sentences, then the
       sentences for the instant offense(s) shall run
       consecutively to such unexpired sentences, unless one

                                5



       or more of the instant offense(s) arose out of the same
       transactions or occurrences as the unexpired
       sentences. In the latter case, such instant sentences
       and the unexpired sentences shall run concurrently,
       except to the extent otherwise required by law.

U.S.S.G. S 5G1.3 (1987). Because the Guideline left no
discretion to impose concurrently any part of the sentence
for the new offenses, the district court sentenced the
defendant to 282 months imprisonment consecutive to the
15-year balance of his unexpired term. On appeal, the
defendant argued that the elimination of a trial court's
discretion to impose a sentence concurrently or
consecutively was in direct conflict with 18 U.S.C.
S 3584(a), which provides in relevant part:

       If multiple terms of imprisonment are imposed on a
       defendant at the same time, or if a term of
       imprisonment is imposed on a defendant who is
       already subject to an undischarged term of
       imprisonment, the terms may run concurrently or
       consecutively . . . . Multiple terms of imprisonment
       imposed at different times run consecutively unless the
       court orders that the terms are to run concurrently.

Holding that the Guidelines on the subject of consecutive
and concurrent sentences "must be consistent with 18
U.S.C. 3584(a)," we vacated the sentence for the reason
that S 5G1.3 could not usurp the district court's discretion
to impose a concurrent sentence. Nottingham, 898 F.2d at
394.
The government urges us to distinguish Nottingham on
the grounds that the version of S 5G1.3 in dispute here is
substantially different from the version criticized in that
case. The 1987 version of S 5G1.3 removed all of a trial
court's discretion to order concurrent sentencing in any
case where the defendant was serving an unexpired
sentence. By contrast, under the current S 5G1.3, the
sentencing court retains discretion to impose a concurrent
or consecutive sentence in the class of cases where the
defendant is subject to an undischarged term of
imprisonment, yet has not committed the instant offense
while serving or awaiting to serve a term of imprisonment.

                                6



In fact, by the time we decided Nottingham, the
Sentencing Commission had already amended S 5G1.3. We
noted that the rationale for this amendment was an
attempt to reconcile the scope of the Guideline with the
provisions of 18 U.S.C. S 3584(a). Nottingham, 898 F.2d at
395. In view, therefore, of the Commission's awareness of
the conflict between the statute and the Guideline and in
further view of the subsequent amendments to S 5G1.3,3 we
conclude that our decision in Nottingham is no longer
relevant in assessing the validity of the present S 5G1.3(a).

For this reason, we find that the district court's reliance
on Nottingham in defining its discretion to impose a portion
of Higgins' sentence concurrently was misplaced.

IV.

Having determined that Nottingham does not govern the
outcome here, the question remains whether the revised
S 5G1.3(a) is nevertheless invalid because it deprives a
sentencing court of some of its discretion to impose
concurrent or consecutive sentences under 18 U.S.C.
S 3584(a). Higgins contends that, even if the current version
of S 5G1.3 has returned a measure of discretion to the
sentencing courts, the conflict with the statutory authority
persists. According to Higgins, the court's discretion cannot
be limited by a sentencing guideline in any way, provided
the court complies with the terms of S 3584(b) and
considers the factors in 18 U.S.C. S 3553(a) in its decision
to impose a sentence concurrently or consecutively to an
undischarged term. The government argues, however, that
the guideline is a permissible channeling of a court's
discretion or, in the alternative, that complete discretion is
still available through application of the standard Guideline
departure procedures.
A Guideline cannot trump a statute with which it
conflicts. See United States v. Sabarese, 71 F.3d 94, 96 (3d
Cir. 1995); Nottingham, 898 F.2d at 394. However, where
the text permits, a rule, guideline, or regulation should be
_________________________________________________________________

3. The Commission amended S 5G1.3 in 1989, 1991, 1992, 1993, and to
its present form in 1995.

                                7



interpreted harmoniously with a statute dealing with the
same regulatory matter. Rice v. Martin Marietta Corp., 13
F.3d 1565, 1568 (Fed. Cir. 1993); LaVallee Northside Civic
Ass'n v. Virgin Islands Coastal Zone Management Comm'n,
866 F.2d 616, 623 (3d Cir. 1989) (a court should attempt
to reconcile seemingly discordant statutes and regulations).
A statute and regulation "should be construed so that effect
is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant, and so
that one section will not destroy another unless the
provision is the result of obvious mistake or error."
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d
28, 31 (3d Cir. 1995) (citation omitted). Thus, a
construction of S 3584(a) and S 5G1.3(a) is preferred which
does not require that we find the two provisions to be in
conflict.

That a court is provided broad, general discretionary
powers to impose sentences does not preclude limitation of
that discretion in certain cases by the Sentencing
Commission. Section 3584(a) does not by its express terms
confer limitless discretion on the trial court in all cases.
Instead, it states that "if a term of imprisonment is imposed
on a defendant who is already subject to an undischarged
term of imprisonment, the terms may run concurrently or
consecutively" (emphasis added). "One can . . . read the
statutory words `may run concurrently or consecutively' as
nonetheless permitting the Commission to write guidelines
that say when, and to what extent, terms should be
concurrent or consecutive." United States v. Flowers, 995
F.2d 315, 317 (1st Cir. 1993) (Breyer, C.J.); cf. United
States v. Gondek, 65 F.3d 1 (1st Cir. 1995) (finding no
clash between the broad discretion under S 5G1.3(c) of the
Guidelines and a restrictive directive in the application
notes). We find no inherent conflict between the general
discretion granted under S 3584(a) and the limitation of
that discretion in certain instances by the Guidelines. See
Holifield, 53 F.3d at 13 (discretion employed by a
sentencing court under 18 U.S.C. S 3584(a) to run a
sentence consecutively or concurrently is "subject to
S 5G1.3"); see also Oser, 107 F.3d at 1083 (observing that
S 5G1.3 guides a district court's discretion). Where the
Sentencing Guidelines prescribe circumstances, under

                                8



which the court should impose the sentence either
consecutively or concurrently, a district court is not free to
exercise unfettered discretion.4

Our conclusion is reinforced by the reasoning of the
Supreme Court in United States v. Gonzales, 117 S. Ct.
1032 (1997). At issue in Gonzales was 18 U.S.C. S 924(c),
which mandates that a sentence, for the crime of using or
unlawfully carrying a firearm during and in relation to the
commission of a federal felony, be imposed consecutively to
any other term of imprisonment. The defendant argued that
S 924(c) conflicted with the district court's discretion under
S 3584(a) to run the sentence concurrently. The Court held
that the two statutory provisions were "entirely consistent"
because discretion was limited only in a narrow range of
circumstances. 117 S. Ct. at 1036. Section 924(c) was not
in conflict with the broad language of S 3584(a) because "[i]t
leaves plenty of room for a court to run other sentences --
whether for state or federal offenses -- concurrently with
one another pursuant to S 3584(a) and USSG S 5G1.3." Id.
Similarly, we find that S 5G1.3(a) is not in conflict with
S 3584(a) merely because the Guideline limits sentencing
discretion in the exceptional case of an offense committed
while serving or awaiting a term of imprisonment. In the
vast majority of circumstances contemplated by S 5G1.3,
courts retain discretion to run sentences concurrently or
consecutively.

Here, Higgins had committed his subsequent mail fraud
offense while serving a term of imprisonment. The district
court believed incorrectly that S 5G1.3(a) was invalid
because it conflicted with S 3584(a) and that the court
therefore was not constrained to impose a consecutive
sentence. Higgins' sentence as imposed by the district court
_________________________________________________________________

4. This conclusion is consistent with our opinion in United States v.
Oser, 107 F.3d 1080 (3d Cir. 1997). At issue in Oser was the
applicability of Guideline S 5G1.3(b), which mandates a concurrent
sentence where the undischarged term of imprisonment resulted from
offenses fully taken into account in computation of the new sentence.
Although this provision is as inhibiting upon a sentencing court's
discretion as S 5G1.3(a), the issue was not raised in Oser that S 5G1.3(b)
was in conflict with 18 U.S.C. S 3584(a).

                                9
was based on an erroneous legal standard and must be
vacated.

Finally, we are not persuaded by Higgins' contention that
the reasons discussed by the district court for imposing a
partially concurrent sentence were sufficient tofind that a
proper downward departure from the Sentencing Guidelines
was made. In order to depart from the Guidelines, the court
must find "an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the Guidelines that should result in a sentence different
from that described." 18 U.S.C. S 3553(b); see also Koon v.
United States, 116 S. Ct. 2035, 2044 (1996). In ordering a
downward departure, the sentencing court must adhere to
the requirements of 18 U.S.C. S 3553(c)(2), which requires
that the court state "the specific reason for the imposition
of a sentence different from that described" by the
Guidelines. See Oser, 107 F.3d at 1087 (permitting
departure provided the court "indicates its reason for
imposing the penalty in such a way as to allow us to see
that it has considered the [Guideline] methodology")
(citation omitted). Here, while the district court made
reference to such factors as Higgins' age and the closeness
in time of his prior offenses, it neither indicated that these
factors were present to an exceptional degree nor provided
a cogent rationale for departure. We find such articulation
insufficient to satisfy the requirements of S 3553(c)(2).5 On
_________________________________________________________________

5. We find it unnecessary to address the government's alternative
argument that, while S 5G1.3 may conflict with the language of S 3584(a),
the guideline departure mechanism adequately preserves a court's
discretion. A few circuits have resolved the apparent conflict in this
fashion. See, e.g., United States v. Schaefer, 107 F.3d 1280, 1285 (7th
Cir. 1997), petition for cert. filed, (U.S. Jul. 3, 1997) (No. 97-5125)
(holding that "while S 5G1.3(a) creates a presumption in favor of a
consecutive sentence, sentencing judges are free to depart from the
Guidelines and order a downward departure, so long as they comply
with the procedures required for downward departure in general outlined
in 19 U.S.C. S 3553(c)(2)"); see also Flowers, 995 F.2d at 317, United
States v. Shewmaker, 936 F.2d 1124, 1127-28 (10th Cir. 1991), cert.
denied, 502 U.S. 1037 (1992); United States v. Stewart, 917 F.2d 970,
972-73 (6th Cir. 1990); United States v. Miller , 903 F.2d 341, 349 (5th
Cir. 1990); Fossett, 881 F.2d at 980. We emphasize, however, that the
power of the district courts to depart from the Sentencing Guidelines is
not unfettered.

                                10
resentencing, however, the issue of a downward departure
can be considered by the district court if such an
application is made.

V.

For the foregoing reasons, we will vacate the judgment of
sentence and remand for resentencing in a manner not
inconsistent with this opinion and the Sentencing
Guidelines.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                11
