
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1065                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 LANCER SCOTT GONDEK,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                        and Schwarzer,* Senior District Judge,                                        _____________________                                 ____________________            James S. Hewes, by Appointment of the Court, for appellant.            ______________            F. Mark Terison,  Assistant United States Attorney, with whom  Jay            _______________                                                ___        P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.  Chapman,        _____________                                   _____________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  September 6, 1995                                 ____________________        ________________        *Of the District of Northern California, sitting by designation.                 BOUDIN, Circuit  Judge.  In November  1992, Lancer Scott                         ______________            Gondek was convicted  in Maine Superior Court of  robbery and            burglary and sentenced  to   prison.  While  on parole  after            imprisonment,   Gondek  was   arrested  in  March   1994  for            possession of a firearm.  The federal government indicted him            under  the  felon  in  possession  statute.    18  U.S.C.                922(g)(1),  924(a)(2).   In  consequence of  his arrest,  his            failure to attend a drug  treatment program, and his  alcohol            use, the state court  revoked Gondek's parole and imposed  on            him a three-year prison sentence.  Gondek then pled guilty in            federal court to a single count of firearms possession.                   In January  1995, the district court  imposed a 77-month            sentence  on   Gondek  and  concluded  that   the  Sentencing            Guidelines required the federal sentence to run consecutively            to  the state  sentence imposed  after the  parole violation.            Gondek has now  appealed the federal sentence, arguing that a            consecutive sentence  was not  mandatory and should  not have            been  ordered.   His only  substantial argument  involves the            interpretation of U.S.S.G.   5G1.3, a  set of provisions that            are less than a model of clarity.                 Section  5G1.3 governs  the imposition  of sentences  on            defendants who are convicted  of a crime while subject  to an            undischarged term of imprisonment for a  previous conviction.            Under subsection (a), the new sentence must be consecutive if                                                           ___________            a defendant is convicted for a crime committed while "serving                                         -2-                                         -2-            a term of imprisonment  (including work release, furlough, or            escape   status),  or  after   sentencing  for,   but  before            commencing   service   of,   such  term   of   imprisonment."            Subsection (b)  provides for a concurrent  sentence where the                                           __________            undischarged  term  resulted  from offenses  "that  have been            fully  taken  into  account"  (e.g.,  as  an  adjustment)  in                                           ____            determining  the  offense  level  for  the  present  offense.            Finally, under  subsection  (c) in  all other  cases the  new            sentence  is to  be consecutive  "to the extent  necessary to            achieve a  reasonable incremental punishment  for the instant            offense."                   The commentary  for subsection (c) gives  the court some            latitude  in determining  what is  a "reasonable  incremental            punishment,"  although  it  offers  one  generalization  that            covers a good  many cases:   application note 3 says  that to            the extent  practicable, the  court should achieve  the total            punishment that  would  have been  imposed  "had all  of  the            offenses been federal offenses for which sentences were being            imposed at the  same time."   The  commentary concludes  with            application note 4, added in 1993, which reads as follows:                 If the defendant was on federal or state probation,                 parole, or  supervised release  at the time  of the                 instant   offense,  and  has  had  such  probation,                 parole, or supervised release revoked, the sentence                 for  the instant  offense should  be imposed  to be                 served consecutively  to the  term imposed  for the                 violation  of  probation,  parole,   or  supervised                 release in order to  provide an incremental penalty                 for   the  violation   of  probation,   parole,  or                                         -3-                                         -3-                 supervised  release  (in  accord  with  the  policy                 expressed in   7B1.3 and 7B1.4).                 The language  of application note 4  applies directly to            this  case.  Gondek  was on state  parole at the  time of the            present firearms possession  offense, and the district  court            followed the directive that the sentence  for the new offense            "should be  imposed to  be served consecutively  to the  term            imposed for the violation of . . . parole . . . ."   The only            question  is whether  the district  court erred  in believing            that  this result  was  mandated by  the  guidelines; if  the            commentary were  only a  suggestion, then the  district court            would  be obliged to decide whether as a matter of discretion            it wished to make the term consecutive or concurrent.                 There is an argument  for reading application note 4  to            reserve discretion to  the district court.   The note,  after            all,  is  appended to  a  subsection  that  does confer  some            discretion and  is explicitly  labeled a  "policy statement,"            although  commentary policy  is  also binding.   Williams  v.                                                             ________            United  States, 503 U.S. 193, 200-01 (1992).  Some might also            ______________            attach  weight to the note's use of the word "should," rather            than  "shall," see United States v. Whiteley, 54 F.3d 85, 89,                           ___ _____________    ________            91 (2d Cir. 1995), but  these shadings in guideline  language            do not appear to be very reliable guides.                 However,  the greater  weight of  the evidence  suggests            that, departure to one side, application note 4 is mandatory.            First, the simple and straightforward language of application                                         -4-                                         -4-            note 4 says that if the defendant committed the offense while            on parole,  the  sentence should  be  made consecutive.    No            qualification  is  stated  or  suggested.   In  other  words,            application  note 4 represents the Commission's determination            as to  what is a  "reasonable incremental punishment"  in the            narrow situation described in the note.                   Second,  the rationale  for  this  special treatment  is            entirely  understandable.    Unlike  many cases  governed  by            subsection  (c), where  the two  offenses arise  from related            events,  the  parole  case  covered  by  application  note  4            involves  a new  offense normally  unrelated to  the original            offense  that led to the  parole.  Instead,  the situation is            closely akin to the case  of the defendant who commits  a new            offense while  still in prison,  the very situation  in which            subsection  (a) instructs  that  the new  sentence  is to  be            served consecutively.                 Third,  the guidelines  elsewhere  provide that  where a            federal  court  imposes  a  term of  imprisonment  "upon  the            revocation of probation or  supervised release," it is  to be            served  consecutively to  any sentence  of imprisonment  then            being served.  U.S.S.G.   7B1.3(f).  This section does not in            terms  apply to Gondek's case because his revocation was by a            state  court and was prior  to the federal  sentence; but the            policy  of   this  provision,  which   is  explicitly  cross-            referenced  in  application  note  4,  makes  irrelevant  the                                         -5-                                         -5-            sequence  of events.    Reading the  two provisions  together            reenforces our view that application note 4 is mandatory.                 Fourth, one  circuit has agreed that  application note 4            is mandatory, United States v. Bernard, 48 F.3d 427, 432 (9th                          _____________    _______            Cir. 1995); two others reached the same result, for sentences            imposed  prior to  application  note 4,  based  in part  upon            U.S.S.G.   7B1.3(f), United States v. Glasener, 981 F.2d 973,                                 _____________    ________            975 (8th Cir. 1992);  United States v. Flowers, 13  F.3d 395,                                  _____________    _______            397  (11th Cir.  1994); and  apparently no other  circuit has            agreed with Gondek's view.   Although we are obliged  to make            our own judgment, our  confidence in it is reenforced  by the            reaction of other circuits.                 There  are  three  loose   ends  that  deserve  separate            treatment.    On a  technical level,  one  might ask  why the            Commission, in  adding application note  4 in  1993, did  not            simplify the  matter by expanding the  language of subsection            (a) to embrace parole.  It is probably enough to observe that            subsection  (a) is  addressed primarily  to cases in  which a            defendant commits the  new offense while  "serving a term  of            imprisonment"; and  it would have required  some reworking of            subsection  (a) as a whole--not merely the insertion of a few            words--to  allow  it   to  include   parole,  probation   and            supervised release.                 The broader  question is whether  there is  a clash,  in            spirit if  not in  language, between the  apparently generous                                         -6-                                         -6-            grant  of  discretion  conveyed  by subsection  (c)  and  the            specific,  restrictive  directive  of  application   note  4.            Subsection (c)  had to  be generally  phrased because  it was            designed as a  catch-all for all  situations not embraced  by            subsections (a)  and (b), including ones  that the Commission            might not be  able to envision in advance.   It does not seem            to us inconsistent  for the Commission  to identify one  such            situation  and treat  it expressly  in commentary,  a pattern            common throughout the guidelines.                 Indeed,  in subsection  (c)  itself application  note  3            reflects the same technique  and suggests that it is  easy to            overstate the  amount of  discretion conferred by  subsection            (c)  as  a  whole.   As  already  noted,  application note  3            contains  a formula  that governs  a good  many of  the cases            likely to  arise under subsection  (c).  That  formula, which            calls  on the court to  compute the overall  punishment as if            both sentences were imposed  by a federal court in  one case,            involves  a  regime that  is  virtually  mathematical in  its            application.  See  United States  v. Whiting,  28 F.3d  1296,                          ___  _____________     _______            1310-11 (1st Cir. 1994), cert. denied, 115 S. Ct. 378 (1994).                                     ____________                 Something more can made of the fact that, under U.S.S.G.              4A1.1(d),  Gondek is  automatically subject to  a two-point            increase in  criminal history points for  his present offense            because it was committed while on parole for another offense.            To insist that  the new  sentence be consecutive  as well  is                                         -7-                                         -7-            therefore  a  form of  double  counting,  providing a  policy            argument in  favor of a lenient reading.  But forms of double            counting  are  not  unusual  under  the  guidelines  and  are            permissible where intended, United States v. Newman, 982 F.2d                                        _____________    ______            665, 673 (1st Cir. 1992), cert. denied, 114 S. Ct. 59 (1993),                                      ____________            as we think is the case here.                 In an  entirely independent argument, Gondek  says that,            if the guidelines make a consecutive sentence mandatory, then            they  violate   18  U.S.C.      3584(a),  a   provision  that            contemplates  a   choice  by  the   district  court   between            consecutive and  concurrent sentences.    We have  previously            held  that the  court's discretion  under section  3584(a) is            constrained where the Commission  has promulgated a governing            guideline.   United States v.  Flowers, 995 F.2d  315, 316-17                         _____________     _______            (1st  Cir.  1993).    Indeed,  the  statute  authorizing  the            guidelines specifically provides for them to include rules to            be used  in determining "whether multiple  sentences to terms            of  imprisonment should  be  ordered to  run concurrently  or            consecutively . . . ."  28 U.S.C.   994(a)(1)(D).                 Gondek's  final argument  is a  claim that  the district            court  should  have  applied   subsection  (b),  rather  than            subsection  (c), of U.S.S.G.   5G1.3.  The former, as already            noted, provides for concurrent sentences subsection where (a)            does  not apply  and  the undischarged  term of  imprisonment            "resulted  from offense(s)  that have  been fully  taken into                                         -8-                                         -8-            account"  in determining  the offense  level for  the instant            offense.   U.S.S.G.    5G1.3(b).    Gondek argues  that  this            quoted   language  governs,   primarily  because   the  prior            convictions were what made  him a felon subject to  the felon            in possession statute.                 The critical phase--"fully  taken into  account"--refers            to a case in which the prior criminal conduct is also offense                                                                  _______            conduct  in  the present  case;  examples,  indicated by  the            commentary, would  be state and federal  prosecutions for the            same conduct or a federal prosecution  that treated the state            offense  as  relevant  conduct  in  determining  the  federal            offense  level.  U.S.S.G.   5G1.3, comment. (n.2).  The prior            felony conviction  that makes it unlawful to  carry a firearm            is not "taken  into account"  in this manner  in the  federal            sentencing,  and the  rationale  of subsection  (b) does  not            apply.  See Flowers, 13 F.3d at 397.                    ___ _______                 Although  we  think  that  the  stronger  arguments  and            pertinent precedent  favor our interpretation  of application            note 4, these arguments  do not remove every  possible doubt.            Where  literally years of imprisonment may turn on the issue,            even a  shadow of a doubt ought not be allowed to persist.  A            copy of this  opinion will be  transmitted to the  Sentencing            Commission  with the suggestion  that it  consider clarifying            its intention.                 Affirmed.                       ________                                         -9-                                         -9-
