                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-1995

United States v Robert Holifield
Precedential or Non-Precedential:

Docket 94-3424




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                 ________________

               Nos. 94-3424 & 94-3426
                  ________________


              UNITED STATES OF AMERICA

                         v.

        ROBERT HOLIFIELD, a/k/a Jim Davis,
      a/k/a Philip Sharp, a/k/a David Jones

                                  Robert Holifield,
                                               Appellant

                    ___________

                    No. 94-3425
                    ___________


              UNITED STATES OF AMERICA

                         v.

                ROBERT A. HOLIFIELD

                                  Robert Holifield,
                                               Appellant


 _______________________________________________

 On Appeal from the United States District Court
    for the Western District of Pennsylvania
        (D.C. Criminal Nos. 94-cr-00003J,
          94-cr-00011J & 94-cr-00012J)
               ___________________


              Argued January 30, 1995

Before:   SCIRICA, ROTH and SAROKIN, Circuit Judges

               (Filed April 19, 1995)
                     KAREN S. GERLACH, ESQUIRE (Argued)
                     Office of the Federal Public Defender
                     960 Penn Avenue
                     415 Convention Tower
                     Pittsburgh, Pennsylvania 15222

                       Attorney for Appellant


                     BONNIE R. SCHLUETER, ESQUIRE (Argued)
                     Office of the United States Attorney
                     633 United States Post Office & Courthouse
                     Pittsburgh, Pennsylvania 15219

                       Attorney for Appellee


                          __________________

                       OPINION OF THE COURT
                        __________________


SCIRICA, Circuit Judge.



           Defendant Robert Holifield pled guilty in 1994 to five

counts of wire fraud in violation of 18 U.S.C. § 1343 (Supp. V

1993).   The sole issue on appeal is whether the district court

acted within its discretion in its application of the United

States Sentencing Guidelines.    We will affirm.

                                  I.

           From March 13, 1992, to June 12, 1992, Holifield

engaged in a wire fraud scheme in the Middle and Western

Districts of Pennsylvania.    Holifield telephoned various persons,

falsely representing himself to be a corporate officer of Diamond

Marketing Company, V.I.P. Promotions, and other companies.    After

advising them they had won prizes through a sweepstakes drawing,

Holifield told them that it was necessary to pay an advance fee
to cover expenses and taxes on the prize.    He then instructed

them to wire the money to Western Union offices in Pennsylvania

and Georgia to persons that he claimed were company associates.

The scheme caused losses to five individuals totaling more than

$25,000.

           Two years earlier, from December 1, 1989, through

November 1, 1990, Holifield engaged in a similar scheme in the

Northern District of Georgia, this time purportedly as a salesman

for International Marketers, Incorporated.     Holifield also

trained others to be salespersons for IMI.     Three victims in this

scheme lost a total of $2,700.   The cases from the Northern

District of Georgia and the Middle District of Pennsylvania were

transferred to the Western District of Pennsylvania under Federal

Rule of Criminal Procedure 20 and were consolidated for purposes

of disposition ("the Pennsylvania charges").

           At the time the Pennsylvania charges were filed,

Holifield was serving a 21-month sentence for another wire fraud

scheme in which he posed as an Internal Revenue Service agent

during February 1993.   That charge was filed in the District of

Colorado, and Holifield pled guilty in August 1993.

           As we have noted, Holifield later pled guilty to five

counts of wire fraud in the Western District of Pennsylvania.

The guideline range for each count was 15-21 months imprisonment.

He was sentenced to 15 months on each count, each to run

concurrently and also concurrently with the remaining time on the

Colorado sentence, which was four months.
          The district court had jurisdiction pursuant to 18

U.S.C. § 3231 (1988).    We have jurisdiction under 28 U.S.C. §

1291 (1988).   Our review of the construction of the Sentencing

Guidelines is plenary.     United States v. Nottingham, 898 F.2d

390, 392 (3d Cir. 1990).

                                  II.

          Under 18 U.S.C. § 3584 (1988), a sentencing court is

permitted to order a defendant's sentence to run either

concurrently or consecutively to another sentence imposed at the

same time or to an earlier, undischarged term of imprisonment.

That discretion is subject to § 5G1.3 of the United States

Sentencing Guidelines, which was promulgated in response to the

statutory duty imposed upon the Sentencing Commission to include

in the guidelines "a determination whether multiple sentences to

terms of imprisonment should be ordered to run concurrently or

consecutively."   28 U.S.C. § 994(a)(1)(D) (1988).

          The government and Holifield apparently agree that §

5G1.3(c) governs this dispute.1    Subsection (c) provides that

"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

1
 . Subsection (a) of § 5G1.3 requires consecutive sentences when
the sentence is for a crime committed while the defendant was
serving a term of imprisonment, or after sentencing for, but
before commencing service of, such term of imprisonment.
Subsection (b) applies when subsection (a) does not apply, and
calls for concurrent sentences when the undischarged term of
imprisonment resulted from an offense that has been fully taken
into account in the determination of the offense level for the
instant offense.
punishment for the instant offense."   U.S.S.G. § 5G1.3(c) (Policy

Statement) (emphasis added).2   The Commentary's Application Note

to subsection (c) states that a consecutive sentence is not

required when reasonable incremental punishment can be achieved

through the use of a concurrent sentence.   The note then explains

what is meant by "reasonable incremental punishment":
          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 sentences were
          being imposed at the same time.


Id. § 5G1.3 (Commentary).3




2
 . The policy statements and commentary contained in the
guidelines are binding on the federal courts. See, e.g., Stinson
v. United States, 113 S. Ct. 1913, 1919 (1993) (commentary "must
be given 'controlling weight unless . . . plainly erroneous or
inconsistent'" with the guidelines); Williams v. United States,
503 U.S. 193, 201 (1992) (policy statement serves as "an
authoritative guide to the meaning of the applicable Guideline").
3
 . The Commission has provided illustrations of how § 5G1.3 is
to work. In one illustration a guideline range for the instant
federal offense is 24-30 months. The court determines that a
total punishment of 36 months would appropriately reflect the
instant federal offense and the offense resulting in the
undischarged term of imprisonment. The undischarged sentence is
an indeterminate term of imprisonment with a 60-month maximum, of
which 10 months have been served by the defendant. In that case,
according to the illustration, a sentence of 26 months
imprisonment, to be served concurrently with the undischarged
sentence, "would (1) be within the guideline range for the
instant federal offense, and (2) achieve an appropriate total
punishment (36 months)." U.S.S.G. § 5G1.3 (Illustration A).
                                 III.

             Holifield argued, and the district court apparently

agreed, that had the sentences on the Pennsylvania and Colorado

charges been imposed at the same time, the maximum sentence he

could have received would have been 24 months.     At the time

Holifield was sentenced on the Pennsylvania charges, he had

served 17 of the 21 months on the Colorado offense.     Thus he

argued that § 5G1.3 required that his sentence on the

Pennsylvania charges run no more than seven months and

concurrently with his undischarged sentence, or three months and

consecutively to the remaining four months of his undischarged

sentence.    In either case, Holifield contended that § 5G1.3

required that he serve no more total time than he would have

served had he been sentenced on all the offenses at the same time

(24 months).    In addition, Holifield argued that any sentence

resulting in a greater total punishment was an upward departure

from the guidelines and required prior notice in accordance with

Burns v. United States, 501 U.S. 129, 138-39 (1991).    As we have

noted, the district court disagreed and Holifield raises the same

issues on appeal.

             The government responds that Congress intended to vest

district court judges with discretion to run sentences

concurrently or consecutively.     Although the government concedes

§ 5G1.3 must be considered by the district court, it claims that

a strict application of that section's methodology is not

necessary.

                                  A.
          Section 5G1.3 provides guidance in determining whether

to run a sentence concurrently or consecutively.    While it

appears to permit a downward departure from the applicable

guideline range to meet its objectives, it does not create a

sentencing scheme in itself nor does it require a downward

departure.  The Commentary to § 5G1.3 states:
               Additionally, this methodology does not,
          itself, require the court to depart from the
          guideline range established for the instant
          federal offense. Rather, this methodology is
          meant to assist the court in determining the
          appropriate sentence (e.g., the appropriate
          point within the applicable guideline range,
          whether to order the sentence to run
          concurrently or consecutively to the
          undischarged term of imprisonment, or whether
          a departure is warranted).


U.S.S.G. § 5G1.3 (Commentary) (emphasis added).

          As the final clause in this part of the Commentary

suggests, sentencing Holifield to less than 15 months to meet the

general objectives of § 5G1.3 would have been a departure from

the guideline range.    And although § 5G1.3 would permit a

departure, the Commentary clearly states that the methodology
"does not, itself, require the court to depart."4

             This is also evident in one of the illustrations

provided by the Sentencing Commission.    In fact, although the



4
 . Holifield's sentence was within the applicable guideline
range for the instant offense. The fact that the sentence
resulted in a period of incarceration longer than the "total
punishment" calculated under § 5G1.3 does not make it an upward
departure. Thus, Holifield's argument that there was a departure
requiring notice and cause is without merit.
figures are different, the illustration discusses a sentencing

situation similar to the one the district court faced here:
          The applicable guideline range for the
          instant federal offense is 24-30 months. The
          court determines that a total punishment of
          36 months' imprisonment would appropriately
          reflect the instant federal offense and the
          offense resulting in the undischarged term of
          imprisonment. The undischarged term of
          imprisonment is an indeterminate sentence
          with a 60-month maximum. At the time of
          sentencing on the instant federal offense,
          the defendant has served 22 months on the
          undischarged term of imprisonment. In this
          case, a sentence of 24 months to be served
          concurrently with the remainder of the
          undischarged term of imprisonment would be
          the lowest sentence imposable without
          departure for the instant federal offense.


Id. § 5G1.3 (Illustration D).

          With no departure from the guidelines, the defendant in

the illustration would serve a total of 46 months, even though a

total of 36 months would appropriately reflect the two offenses.

While departure may be justified in such a circumstance, we

believe that if departure was required, the Sentencing Commission

clearly would have said so.5

5
 . In fact, this position was taken by John Steer, General
Counsel to the United States Sentencing Commission, in a letter
cited in Holifield's brief. Asked about downward departures in
this circumstance under § 5G1.3, Steer wrote:

          Occasionally, a downward departure may be
          necessary to make this provision work
          properly. For example, where the defendant
          has been in state custody for a long time, a
          downward departure may be the only feasible
          way to achieve an appropriate total
          punishment, assuming the court wishes to
          employ a departure to achieve the desired
          objective.
             The Court of Appeals for the Fourth Circuit reached the

same conclusion in a remarkably similar case.     In United States

v. Wiley-Dunaway, 40 F.3d 67 (4th Cir. 1994), the defendant

embezzled $54,883 in West Virginia before her actions were

discovered.     She fled to the Virgin Islands, where under an

assumed name she embezzled another $52,279.     She pled guilty in

the Virgin Islands district court and received a 21-month

sentence.6

             After she was sentenced, the defendant was indicted for

her West Virginia crimes.     She pled guilty in federal court in

West Virginia and received a 15-month sentence to run consecutive

to the Virgin Islands federal sentence, which had less than three

months remaining.     The district court, in sentencing, did not

address § 5G1.3.

             On appeal, the Fourth Circuit followed the methodology

of § 5G1.3(c).     The court noted that the sentencing range for the

instant offense was 12 to 18 months, and the defendant argued the

maximum she could have received for the combined offenses was 24

months.   Subtracting the 21-month sentence she had received for

(..continued)

Letter from John Steer, General Counsel, United States Sentencing
Commission, to Tony Garoppolo, Deputy Chief U.S. Probation
Officer 8 (January 6, 1994) (emphasis added).
6
 . The defendant also pled guilty to a Virgin Islands
territorial offense for which she received a 60-month sentence to
run concurrently with the federal sentence. At the time of
sentencing for the West Virginia offenses, she had only four
months remaining until she became eligible for parole for this
territorial offense. United States v. Wiley-Dunaway, 40 F.3d 67,
69 (4th Cir. 1994).
the Virgin Islands federal offense, the defendant contended she

could only receive a 3-month "reasonable incremental punishment"

for the instant offense.    The Fourth Circuit rejected the claim,

holding that:

          [T]he minimum range for the instant West

          Virginia offense is 12 months.    Accordingly,

          the minimum sentence to which Wiley-Dunaway

          could have been sentenced under these

          assumptions, without a downward departure, is

          a 12-month sentence to run concurrently with

          the remainder of the term imposed by the

          District of the Virgin Islands, and

          consecutively thereafter.

Id. at 71.    The court remanded the case to the district court,

but only because it had not considered § 5G1.3 at the time of

sentencing.     Id. at 71-72.

          It is important to note the methodology of § 5G1.3

vests discretion in the trial judge.    It does not require a

departure from the guideline range for the instant offense.

Thus, when a defendant has been in custody for a substantial

amount of time and the sentencing judge chooses not to depart,

his total time served may be greater than it would have been had

he been sentenced for all his crimes at once.    In a letter, John

Steer, General Counsel to the United States Sentencing

Commission, indicated that a downward departure may be desirable

when the increase is simply because of a delay in the defendant's

trial or sentencing.    See Letter from John Steer, General
Counsel, United States Sentencing Commission, to Tony Garoppolo,

Deputy Chief U.S. Probation Officer 8-9 (January 6, 1994).         Yet,

as the Fourth Circuit noted, "While that position has merit, it

does not dictate the result or require a downward departure

. . . ."    Wiley-Dunaway, 40 F.3d at 71.

            In this case, the sentencing court adhered to the

methodology prescribed by § 5G1.3.       Discussion of the application

of § 5G1.3 spans fifty pages of the transcript of the sentencing

hearing, as the court and prosecution and defense counsel

proceeded step-by-step through the requirements of the guideline.

See App. at 95-145.       The court determined that § 5G1.3(c) applied

to this case, not § 5G1.3(b), as defense counsel claimed.         Id. at

112, 114.    The court also accepted the government's position that

the instant offenses required a sentence range of 15 to 21

months.     Id. at 95.    The government and defense then agreed the

defendant had only four months remaining on his sentence for the

Colorado offense.        Id. at 97-99, 113-114.   The parties noted it

was uncertain whether, by combining the instant offenses with the

Colorado offense, the total sentence would have been a maximum of

21 or 24 months.     Id. at 107, 115, 124, 142.
            After those calculations, the court sentenced the

defendant to 15 months on each count, to be served concurrently

with each other and concurrently with the undischarged sentence

on the Colorado charge.        Although the court did not resolve the

issue of whether 21 or 24 months was the proper combined maximum

sentence, such a precise determination was unnecessary, given

that the minimum sentence of 15 months on the instant offenses,
coupled with the 17-month sentence already served, would surpass

either the 21- or 24-month combined sentence.   The court noted

its 15-month concurrent sentence was "the lowest possible

sentence [the defendant] could have received under subsection C

[of § 5G1.3].   The Court could have gone no lower except had I

departed and, in fact, I see no circumstances that would have

warranted departure nor have any been set forth."   Id. at 150-51.

            We are satisfied that the district court fully followed

the procedures suggested by § 5G1.3(c).    Although the defendant

did not receive a "combined sentence of imprisonment that

approximates the total punishment that would have been imposed

under § 5G1.2," such a sentence could not have been imposed here

without a departure from the guidelines.   As we have noted, such

a departure is not required under § 5G1.3.    See discussion part

III.A; § 5G1.3 (Commentary).

            Furthermore, the government points out that this case

demonstrates the wisdom of leaving discretion in the hands of the

district court.   When Holifield pled guilty to the Colorado

charge in August 1993, he chose not to disclose his illegal

conduct from 1989 to 1992.   Had Holifield come forward with that

information in Colorado, he could have had all the offenses

combined.   Thus in this case, the increased total punishment is

directly a result of a delay in the discovery of the offenses, a

factor entirely in the control of the defendant.

                                 B.

            Although we find the district court followed the §

5G1.3(c) methodology, we would reach the same result here even if
the district court had considered but rejected application of

that methodology.     As we have stated, the commentary to § 5G1.3

provides:    "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 . . . ."    (emphasis added).

            The Court of Appeals for the Ninth Circuit has noted

the "should consider" language of the commentary "falls somewhere

between the 'may consider' language in the 1989 amendment and the

'shall impose' mandate of the 1991 version."    United States v.

Redman, 35 F.3d 437, 440-41 (9th Cir. 1994), cert. denied, 115 S.

Ct. 922 (1995).    The Ninth Circuit concluded this language means

that a district court "may decline to impose the sentence

suggested by the commentary's methodology, if it has a good

reason for doing so." Id. at 441.
          [T]he court must attempt to calculate the
          reasonable incremental punishment that would
          be imposed under the commentary methodology.
          If that calculation is not possible or if the
          court finds that there is a reason not to
          impose the suggested penalty, it may use
          another method to determine what sentence it
          will impose. The court must, however, state
          its reasons for abandoning the commentary
          methodology in such a way as to allow us to
          see that it has considered the methodology.


Id.   We agree with this analysis and join the majority of

circuits that have addressed this question in concluding that

although the district court must calculate the "reasonable

incremental punishment" according to the methodology, it need not
impose that penalty.7   Instead, the court may employ a different

method in determining the sentence as long as it indicates its

reasons for not employing the commentary methodology.

          In this case, the district court went through the

methodology step-by-step with government and defense counsel

before imposing its sentence.    Furthermore, the court listed

several factors that warranted a more severe sentence.    The court

noted the defendant's prior offense "had not been fully taken

into account" in determining the offense level for the instant

convictions.   App. at 151-52.   Furthermore, the court stated most


7
 . See United States v. Wiley-Dunaway, 40 F.3d 67, 71-72 (4th
Cir. 1994) (citations omitted) (§ 5G1.3 "only requires that the
district court 'consider' such a sentence 'to the extent
practicable' to fashion a 'reasonable incremental
punishment.' . . . [T]he district court retains the right to
depart from this suggestion in accordance with the Sentencing
Guidelines."); United States v. Torrez, 40 F.3d 84, 87 (5th Cir.
1994) ("[E]ven if the district court had considered this
provision, it would have been free to decline to follow the
suggested methodology."); United States v. Coleman, 15 F.3d 610,
613 (6th Cir. 1994) ("[B]ecause the methodology 'is meant to
assist the court in determining the appropriate sentence,' it
will not always be necessary to follow the precise methodology
called for under § 5G1.3 . . . since there may be circumstances
which will warrant the court in resorting to a simpler method of
achieving a result which is the practical equivalent of the more
complex computations."); United States v. Redman, 35 F.3d 437,
441 (9th Cir. 1994) ("[I]f the court finds that there is a reason
not to impose the suggested penalty, it may use another method to
determine what sentence it will impose."), cert. denied, 115 S.
Ct. 922 (1995); United States v. Johnson, 40 F.3d 1079, 1084
(10th Cir. 1994) (citation omitted) ("[C]ourts have recognized
that 'it will not always be necessary to follow the precise
methodology called for under § 5G1.3 . . . .'"). But see United
States v. Duranseau, 26 F.3d 804, 810-11 (8th Cir.) (noting if
methodology other than that in § 5G1.3 is used, the district
court must employ a departure analysis), cert denied, 115 S. Ct.
341 (1994).
of the victims were elderly and the financial hardship the

defendant caused was probably "irremediable."   Id. at 152-53.

Finally, the court noted the defendant's conduct was "parasitic

and outrageous" and he had not shown any remorse for his actions.

Id.   Thus, although the district court properly followed the §

5G1.3 methodology, we believe it also listed more than sufficient

reasons for departing from that methodology if it had chosen to

do so.

                               IV.

          We hold that the sentencing court properly applied the

methodology of § 5G1.3, and was within its discretion when it

chose not to depart from the guideline range of sentencing.

Furthermore, we conclude that the sentencing court is not bound

to follow that methodology as long as it indicates the rationale

for its decision.   For the foregoing reasons, we will affirm the

judgment of conviction and sentence of the district court.
