                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-2000

United States v. Saintville
Precedential or Non-Precedential:

Docket 00-3113




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Recommended Citation
"United States v. Saintville" (2000). 2000 Decisions. Paper 141.
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Filed July 6, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3113

UNITED STATES OF AMERICA

v.

WILNER SAINTVILLE,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 99-00157)
District Judge: Honorable Yvette Kane

Submitted under Third Circuit LAR 34.1(a)
June 22, 2000

BEFORE: GREENBERG and BARRY, Circuit Judges,
and OBERDORFER,* District Judge

(Filed: July 6, 2000)



_________________________________________________________________
* Honorable Louis F. Oberdorfer, Senior Judge of the United States
District Court for the District of Columbia, sitting by designation.
       David M. Barasch
       United States Attorney
       James T. Clancy
       Assistant United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108

        Attorneys for Appellee

       James V. Wade
       Federal Public Defender for the
       Middle District of Pennsylvania
       Daniel I. Siegel
       Assistant Federal Public Defender
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101

        Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Wilner Saintville appeals from the sentence entered on
February 1, 2000, on his guilty plea to an indictment for
illegal entry into the United States following his deportation
for conviction of an aggravated felony in violation of 8
U.S.C. S 1326(b)(2). The appeal requires us to consider the
application of U.S.S.G. S 5G1.3(c) p.s. ("section 5G1.3") in a
situation in which a court sentences a defendant already
subject to an undischarged term of imprisonment for a
separate offense. We recently dealt with this issue in Rios
v. Wiley, 201 F.3d 257 (3d Cir. 2000), but did so under the
version of section 5G1.3 prior to its amendment, effective
November 1, 1995, to its current form which the parties
agree is applicable in this case.

The germane procedural history is as follows. A grand
jury returned the indictment for the section 1326(b)(2)

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violation on June 23, 1999. Subsequently, on November 10,
1999, Saintville was convicted in the Court of Common
Pleas of York County, Pennsylvania, for possession of
cocaine with intent to distribute and conspiracy to deliver
cocaine. On December 27, 1999, the state court sentenced
Saintville to a custodial term of 12 to 24 years.

On January 31, 2000, Saintville's case came on for
sentencing in the district court. After originally asking for a
downward sentencing departure, Saintville's attorney
changed her request and asked the court to run his
sentence on the federal charge concurrently with his state
sentence. In support of this request she indicated that she
had calculated that the hypothetical combined sentencing
range, treating both the federal and state charges as having
been prosecuted in the federal court, would have been 51
to 63 months of imprisonment, a calculation with which the
government did not take issue then or even now. Thus, in
Saintville's view the state sentence adequately punished
him for both the federal and state offenses. Moreover, in an
attempt to justify her request for concurrent sentences,
Saintville's attorney contended that the case was unusual
because ordinarily sentences are "harsher" in federal than
state courts. Thus, the state sentence imposed a very
substantial punishment even if it encompassed the federal
sentence.

The prosecutor, however, had a different approach. His
position was straightforward and directly to the point. He
said that he "would simply point out that it is within the
Court's discretion to enter this sentence consecutively or
concurrently. If the Court does enter a completely
concurrent sentence, that would have the effect of imposing
no punishment for this offense in the court where it
properly sits." App. at 23.

Ultimately, after hearing extensive colloquy, including a
statement from Saintville, the district court sentenced him
to a 46-month imprisonment term which was at the bottom
of his imprisonment range of 46 to 57 months. The court
reached somewhat of a middle ground on the question of
whether the sentence should be concurrent or consecutive
to the state sentence, as it provided that ten months would
be concurrent and the balance would be consecutive to the

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state sentence. Saintville then filed a timely appeal. We
exercise plenary review of the district court's order to the
extent that it implicitly construed the sentencing
guidelines, see Rios v. Wiley, 201 F.3d at 262, but review
the district court's determination to impose a partially
concurrent and partially consecutive sentence on an abuse
of discretion basis. See United States v. Spiers , 82 F.3d
1274, 1277 (3d Cir. 1996).

II. DISCUSSION

On this appeal, Saintville contends that in imposing the
sentence the district court erred as a matter of law because
it failed to consider the hypothetical combined sentencing
range which would have been applied if the United States
had prosecuted both the unrelated state drug offenses and
the illegal entry offense in the district court. He cites
section 5G1.3(c), which provides that "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." He argues that the
Commentary to the guideline required the court to consider
the hypothetical combined sentencing range which would
have been applicable if both prosecutions had been in the
district court. In his view, consideration of the hypothetical
range would have led the district court to impose a fully
concurrent federal sentence.

In considering Saintville's argument, we recognize, as the
government acknowledges, that section 5G1.3(c) and its
Commentary prior to their 1995 amendment would have
required the court to consider the hypothetical combined
guideline range. See Rios v. Wiley, 201 F.3d at 263-65;
see also section 5G1.3(c) comment. (n.3) (Nov. 1993).
Nevertheless, we will affirm.

First, we point out that there is no doubt but that the
court was aware of the hypothetical combined sentencing
range as Saintville's attorney set forth the range and the
prosecutor did not challenge what she said. But there is a
more fundamental reason why we reach our result. As we
have indicated, section 5G1.3(c) and its Commentary were

                                4
amended in 1995 after the sentencing at issue in Rios v.
Wiley so that the guideline now is in the form we have set
forth above. See U.S.S.G. App. C, amend. 535 (effective
Nov. 1, 1995). At the time of the sentencing at issue in Rios
v. Wiley, section 5G1.3(c) provided 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 punishment
for the instant offenses." (Emphasis added.) Thus, in Rios v.
Wiley, but not here, the guideline in effect at sentencing
made clear to the court that it must consider the
reasonableness of the sentence taking into account its
"incremental" character. Courts repeatedly have held that
in view of the 1995 amendment, as well as the amendment
of the accompanying Commentary, a sentencing court no
longer must make the hypothetical calculation
contemplated in Rios v. Wiley. See United States v. Mosley,
200 F.3d 218, 222-25 (4th Cir. 1999); United States v.
Velasquez, 136 F.3d 921, 923-25 (2d Cir. 1998); United
States v. Luna-Madellaga, 133 F.3d 1293, 1294-96 (9th Cir.
1998). Now, as the Commentary to section 5G1.3 sets forth,
the court, "[t]o achieve a reasonable punishment and avoid
unwarranted disparity, . . . should consider the factors set
forth in 18 U.S.C. S 3584 (referencing 18 U.S.C. S 3553(a))
and be cognizant of" the factors set forth in section
5G1.3(c), comment. (n.3) (1998). See U.S.S.G. S 5G1.3,
comment. (n.3) (Nov. 1998).

We agree with these courts as nothing in the referenced
statutes or Commentary requires the court to make a
hypothetical sentencing calculation. Moreover, deletion of
the requirement in section 5G1.3 that the court run a
sentence consecutively to the extent necessary to achieve a
reasonable "incremental" punishment for the instant
offenses tends to demonstrate that section 5G1.3(c) no
longer ties the newly imposed sentence closely to any
undischarged term of imprisonment.

While it is true that the court was quite succinct at the
sentencing and did not explain why ten months of the
sentence was to be concurrent and the balance consecutive
to the state sentence, still "[n]othing in the language of
[section 5G1.3(c)] or its Commentary requires district

                                5
courts to make specific findings with respect to any or all
of the factors listed in the Commentary or [18 U.S.C.]
S 3553(a)." United States v. Velasquez , 136 F.3d at 924.
Here, in view of the extensive presentence report and the
sentencing colloquy, we are confident that the court
considered the applicable statutory sentencing factors and
was cognizant of the germane information it needed"to
achieve a reasonable punishment" for the offense involved
and made its determination on that basis. See section
5G1.3(c). After all, as the prosecutor pointed out, if the
court had made the sentence completely concurrent to that
state sentence, it effectively would not have been punishing
Saintville at all. In the circumstances, we cannot say that
the court abused its discretion in making the sentence
partially consecutive to the state sentence.

III. CONCLUSION

For the foregoing reasons the judgment of conviction and
sentence entered February 1, 2000, will be affirmed.

A True Copy:
Teste:

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

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