
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1229                                    UNITED STATES,                                      Appellee,                                          v.                                KEITH JAMES PARKINSON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                            Cyr and Stahl, Circuit Judges,                                           ______________                             and Zobel,* District Judge.                                         ______________                                _____________________               Christopher W.  Dilworth, by  Appointment of the  Court, for               ________________________          appellant.               Michael M.  DuBose, Assistant  United States Attorney,  with               __________________          whom Jay P.  McCloskey, United States Attorney, Paula  D. Silsby,               _________________                          ________________          Assistant  United States  Attorney,  and  Margaret D.  McGaughey,                                                    ______________________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  December 29, 1994                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    ZOBEL,  District Judge.    Keith  Parkinson once  again                    ZOBEL,  District Judge                            ______________          appeals  his sentence.  After a one-day jury trial, defendant was          convicted of robbing a  bank in Portland, Maine, in  violation of          18 U.S.C.   2113(a) (1991).   He subsequently was sentenced  to a          term of imprisonment of  240 months, to run consecutively  to the          remainder  of   a  ten-to-twenty  year  sentence   imposed  by  a          Massachusetts  state court for the  robbery of a  bank in Boston,          Massachusetts.    On  appeal,  we affirmed  the  conviction,  but          vacated the sentence because the  district court had not followed          the  directive  of   5G1.3(c)  of  the  United States  Sentencing          Guidelines  ("U.S.S.G."  or  "Sentencing  Guidelines")   when  it          imposed an entirely consecutive  federal sentence.  United States                                                              _____________          v. Parkinson, No. 91-2233,  1993 WL 89801, at  *6 (1st Cir.  Mar.             _________          30, 1993).    After remand,  the district  court again  sentenced          defendant to a period  of incarceration of 240 months, now  to be          served concurrently  with the  remainder of his  state sentence.1          At the  time  of the  resentencing  defendant had  served  either          forty-six or forty-eight months of that  Massachusetts sentence.2          He now  argues that the  sentence, by  not taking account  of the          state time  already served,  represents an upward  departure from          the applicable guideline range of 210 to 262 months, which on the                                        ____________________          1  At resentencing, the court, without dissent from either party,          applied the 1993 Sentencing Guidelines.  We do likewise.          2   Defendant had served forty-eight months  from the date of his          arrest  on the state charge and forty-six months from the date of          sentencing on that offense.                                         -2-          facts of this case, he says, was improper.3                    The  parties  disagree  as  to the  issues  on  appeal.          Defendant,  ignoring  the  first  part of  the  district  judge's          exegesis, presumes that the judge departed upwardly, and suggests          that the issue before us is whether such departure was justified.          The government presents a more complete, and in our view correct,          statement  of the issues; namely, is time served in state custody          before the  imposition of  the federal sentence  included in  the          calculus under    5G1.3(c) when deciding whether  the sentence is          outside the applicable guideline  range; and, only if so,  was an          upward departure  in the  instant case  appropriate.   Because we          answer the former inquiry in the negative, we need not reach  the          latter.  Nonetheless, a review of the record shows that an upward          departure would be appropriate.                                  Standard of Review                                  __________________                    We  consider  de novo  the legal  meaning and  scope of                                  __ ____            5G1.3(c) (Imposition of a Sentence on a Defendant Subject to an          Undischarged  Term  of  Imprisonment).    See  United  States  v.                                                    ___  ______________          Thompson, 32  F.3d 1, 4  (1st Cir.  1994).  The  district court's          ________          fact-finding,  however,  we  review  for clear  error,  with  due          deference given its application of   5G1.3(c) to the facts of the          case. SeeUnited Statesv. St. Cyr,977 F.2d698, 701(1st Cir. 1992).                ________________   _______                                        ____________________          3   This  range represents, coincidentally,  both what  the total          punishment  would have  been,  in accordance  with    5G1.2,  had          defendant been  sentenced on the  federal and state  bank robbery          convictions  at the same  time in  federal court  as well  as the          punishment for the single  federal conviction.  Both calculations          are  based upon  a  criminal history  category  of VI  and  total          offense level of 32.  Defendant does not dispute either.                                         -3-                                Was there a departure?                                ______________________                    A perusal of   5G1.3 leads us to conclude that in order          to determine  whether a sentence  imposed pursuant to    5G1.3(c)          represents a departure  from the guidelines,  we do not  consider          time served in  state custody.   To hold  otherwise would  equate          "sentence" with "total punishment"  and leave meaningless much of          the language of   5G1.3, which we are bound to follow.   Like the          policy statements, the commentary to the Sentencing Guidelines is          binding when it "interprets or explains a guideline . .  . unless          it  violates  the  Constitution  or  a  federal  statute,  or  is          inconsistent  with,  or  a  plainly erroneous  reading  of,  that          guideline."   Stinson v. United States,  113 S.  Ct. 1913,  1915,                        _______    _____________          1918  (1993).   Similarly, even  "'[p]ortions of  [the Guidelines          Manual] not labeled as guidelines  or commentary . . . are  to be          construed  as commentary  and  thus  have  the  force  of  policy          statements.'"  Id. at 1918 (quoting U.S.S.G.   1B1.7, comment.).                         ___                    Section  5G1.3  is designed  to achieve  an incremental          punishment for a defendant who, at the time of sentencing for the          instant  offense,   is  subject   to  an  undischarged   term  of          imprisonment.  U.S.S.G.   5G1.3.  Although there is discretion as          to how to accomplish the incremental punishment, in fashioning an          appropriate sentence,  the district  court is constrained  by the          Sentencing  Guidelines.    U.S.S.G.    5G1.3,  comment.  n.3;  28          U.S.C.A.    994(a)  (West  1993).    The  court  should  use  the          following method to  reach the  sentence: (1)  compute the  total          offense level  for the  instant offense and  defendant's criminal                                         -4-          history category; (2) determine the resulting guideline range for          that offense; and (3) choose the point within the guideline range          that  effects  a  reasonable  incremental punishment  and  decide          whether that  sentence  will run  concurrently or  consecutively.          See  United States  v.  Jackson,  30  F.3d  199,  201  (1st  Cir.          ___  _____________      _______          1994)(citing  18 U.S.C.   3553 (a),(b) (1988)); U.S.S.G.   5G1.3,          comment. n.3.                    The commentary  to    5G1.3 instructs that,  to compute          such  an  incremental  punishment,   a  sentencing  judge  should          consider the  guideline grouping rules of    5G1.2 (Sentencing on          Multiple Counts of Conviction) which defines the total punishment          that the defendant would have received had he been simultaneously          sentenced  in federal court for both offenses.  U.S.S.G.   5G1.3;          Parkinson, 1993 WL 89801, at *4.  Under   5G1.2, an offense level          _________          and criminal history category for the combined offenses establish          a guideline range,  from which the  total punishment is  derived.          U.S.S.G.    5G1.2,  comment.   Often,  by  discounting the  total          punishment for time already  served on the undischarged sentence,          the  sentencing  judge  can  attain  an  incremental  punishment.          U.S.S.G.   5G1.3.                    Confusion  in  this  case   arises  from  two   unusual          circumstances.   First, the statutory  maximum for the offense of          conviction  is well below the  upper end of  the guideline range.          Second,  because  of defendant's  extensive  criminal  record (23          criminal history points; 10 above the  maximum, category VI), the            5G1.2 calculation results  in the same guideline range  as that                                         -5-          arrived  at  pursuant to    2B3.1  for  the instant  bank robbery          offense.  In most cases, the latter would be less than the former          and the total punishment would not exceed the  hypothetical range          for   the  combined  offenses.     Nevertheless,  the  Sentencing          Commission carefully  distinguished a "sentence  for the  instant          offense" from the "total  punishment."  See generally U.S.S.G.                                                     _____________          5G1.3.  Therefore, when  determining whether the sentencing judge          departed  from  the guideline  range,  we  look  at the  sentence          imposed  for the instant offense, not the total punishment.  This          is appropriate even  were the total  punishment beyond the  range          calculated  under   5G1.2, because that section is a guide, not a          mandate.    See    5G1.3,  comment.  n.3  (instructing  court  to                      ___          "consider"   5G1.2 "to the extent practicable").                    The trial  court correctly looked to  the guideline for          the  offense of conviction,   2B3.1, and found that Parkinson had          an offense  level of  32 and,  as a  career offender,  a criminal          history   category  of  VI.    See  U.S.S.G.     5G1.3,  comment.                                         ___          n.3(D)(illustrating  that, absent  departure, sentence  must fall          within the guideline  range for the  instant offense).   Although          this combination would ordinarily yield  a guideline range of 210          to 262 months, as noted above,  the statutory cap on the  offense          of conviction here was  240 months.  18 U.S.C.A.    2113(a) (West          1994).    Thus,  the  imposed 240-month  sentence,  to  be served          concurrently with the undischarged portion of Parkinson's ten-to-          twenty  year  state  sentence,  was  not  a  departure  from  the          guideline range for the instant offense.                                         -6-                        Would a departure have been justified?                        ______________________________________                    Although  we  hold that  the  sentence  was within  the          guideline range, a departure  in this case would be  warranted in          any event.  This Court reviews the sentencing court's decision to          depart using  a three-step inquiry: first,  are the circumstances          of  the case  sufficiently unusual  to justify  departure, United                                                                     ______          States v.  Qui ones, 26 F.3d 213, 217 (1st Cir. 1994); second, do          ______     ________          the  relied-upon  factual  circumstances  actually  exist, United                                                                     ______          States v.  Rivera, 994 F.2d 942, 950  (1st Cir. 1993); and third,          ______     ______          is  the  departure reasonable,  Jackson, 30  F.3d  202 n.3.   See                                          _______                       ___          generally United States  v. D az-Villafa e, 874 F.2d  43, 49 (1st          _________ _____________     ______________          Cir.),  cert. denied 493 U.S. 862 (1989).  Because defendant does                  ____________          not  challenge the  reasonableness of  the departure,  we discuss          only the  first  two steps  below.   Our review  of the  district          court's  conclusion that  the  case was  sufficiently unusual  to          warrant  departure is plenary, but we will set aside that court's          determination that  the relied-upon facts actually  exist only if          they are clearly erroneous.  D az-Villafa e, 874 F.2d at 49.                                       ______________                    The  sentencing  judge  in  an  abundance  of   caution          articulated  his reasons  for  departing under  the authority  of            4A1.3.    That  section  permits  an  upward  departure when  a          defendant's   criminal  history  category  "does  not  adequately          reflect the seriousness of  the defendant's past criminal conduct          or  the likelihood  that [he]  will commit  other crimes . . . ."          United States v. Fahm,  13 F.3d 447, 449 (1st  Cir. 1994)(quoting          _____________    ____          U.S.S.G.    4A1.3 (policy statement)).  Thirteen or more criminal                                         -7-          history points place a defendant in criminal history category VI;          according to  the presentence  report, Parkinson  had accumulated          twenty-three.  Given the notable difference between the criterion          for category VI and defendant's score, the upward departure rests          on solid  legal ground.  See United States v. Brown, 899 F.2d 94,                                   ___ _____________    _____          97  (1st  Cir.  1990)  (upward departure  from  criminal  history          category  VI  justified  by defendant's  twenty  criminal history          points).    Further,  strong  evidence  exists  that,  given  the          opportunity,  defendant  will  continue  to  engage  in  criminal          activity.    The two  bank  robberies discussed  in  this opinion          occurred  within one  month of  his release  from a  fifteen-year          sentence.   The extent of defendant's  criminal history, combined          with  his  proclivity   for  repeat  performances,   warrant  the          conclusion  that   the  guidelines  underestimate  his  level  of          criminality.  See Fahm, 13 F.3d at 450; Brown, 899 F.2d at 98.                        ___ ____                  _____                    Finally,  Parkinson  challenges  the  adequacy  of  the          district  court's  documentation of  the  factual  basis for  the                             _____________          departure.  He questions neither the reliability nor the accuracy          of the evidence upon which the district court explicitly  relied.          See Fahm, 13 F.3d at 450.  The district court need not state each          ___ ____          and  every fact  that  supports the  departure.   Rather,  it  is          sufficient that the judge specifically identified his findings as          those set out in the presentence report.                                      Conclusion                                      __________                    For the reasons stated above, the sentence is affirmed.                                                                  ________                                         -8-
