                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                              No. 91-7364



                     United States of America,

                                                    Plaintiff-Appellee,


                                  VERSUS


                           Ellis Jake Gross,

                                                    Defendant-Appellant.




           Appeals from the United States District Court
                 For the Northern District of Texas
                           (December 9, 1992)


Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

      The defendant pled guilty to bank robbery and making a false

statement to a firearm dealer.       The district court sentenced the

defendant to 84 and 60 months respectively for the bank robbery and

the   false   statement,    and   ordered   those    sentences   to   run

concurrently for a total sentence of 84 months. The USDC, however,

ordered the sentences in the present case to run consecutively to

a prior undischarged 110-month sentence.       Because we hold that the

court committed plain error in running the current sentences

consecutively to the prior sentence, we vacate these sentences and

remand for resentencing.
                     I.   FACTS and PROCEDURAL HISTORY

     Jake Ellis Gross (Gross) committed two crimes in Fort Worth,

Texas.       On February 18, 1988 Gross made a false statement to a

licensed firearm dealer and on October 30, 1989 he robbed the Blue

Bonnet Savings Bank.       A few days later, Gross traveled to Chicago

where he robbed the Century State Bank.         The FBI1 arrested him that

same day.       Gross pled guilty to the Chicago bank robbery in the

United States District Court for the Northern District of Illinois

on July, 30, 1990 and the court gave him a 110-month sentence.

Immediately after that, Gross began serving his sentence at the

United States Penitentiary in Leavenworth, Kansas.

     On August 8, 1991, the government filed a writ of habeas

corpus ad prosequendum requesting that Gross be brought from the

penitentiary in Leavenworth to stand trial in the United States

District Court for the Northern District of Texas (USDC) for the

two crimes that he had committed in Fort Worth.         Gross was brought

to Texas where he pled guilty both to bank robbery in violation of

18 U.S.C. § 2113(a) and to making a false statement to a licensed

firearm dealer in violation of 18 U.S.C. § 922(a)(6).         On November

15, 1991, the USDC gave Gross a sentence of 84 months for the bank

robbery and a concurrent sentence of 60 months for making the false

statement to a firearm dealer for an effective sentence of 84

months.2       The USDC, however, ordered the sentences in the present


     1
             Federal Bureau of Investigation.
         2
              The USDC also sentenced Gross to 3 years of supervised
release.

                                     2
case to run consecutively to the 110-month sentence that Gross was

serving for the Chicago bank robbery.3           Gross appeals the USDC's

decision to run consecutively his sentences in the present case to

his unexpired 110-month sentence.

                              II.   DISCUSSION

1.   Application of § 5G1.3 of the Guidelines

     Gross contends that the USDC erred in applying an outdated

version of the guidelines and consequently ordering his sentences

to run consecutively.        In sentencing Gross, the USDC applied §

5G1.3 of the guidelines; but did not notice that this guideline had

in fact been amended to be effective fifteen days before the USDC

sentenced Gross.       As amended § 5G1.3(b) stated:

               if the prior undischarged term of imprisonment resulted
               from a federal offense and was imposed pursuant to the
               Sentencing Reform Act, the sentence for the instant
               offense shall be imposed to result in a combined sentence
               equal to the total punishment that would have been
               imposed under § 5G1.2 (Sentencing on Multiple Counts of
               Conviction) had all the sentences been imposed at the
               same time.

Guidelines, § 5G1.3(b) (November 1, 1991).

Before its amendment, however, § 5G1.3 did not address whether

defendants in a case, such as the present case, were to have their

sentences run concurrently or consecutively.4         The commentary to §

         3
          This left Gross with an overall total sentence of 194
months (110 months for the Chicago bank robbery + 84 months for the
two Fort Worth crimes).
     4
             Then, § 5G1.3 stated:
               [i]f the instant offense was committed while the
               defendant was serving a term of imprisonment (including
               work release, furlough, or escape status), the sentence
               for the instant offense shall be imposed to run
               consecutively to the unexpired term of imprisonment.

                                      3
5G1.3, however, stated that the USDC had the discretion to order a

defendant's sentences in a case such as the present case to run

concurrently or consecutively.     The commentary to § 5G1.3 stated:

           [w]here the defendant is serving an unexpired
           term of imprisonment, but did not commit the
           instant offense while serving that term of
           imprisonment, the sentence for the instant
           offense may be imposed to run consecutively or
           concurrently with the unexpired term of
           imprisonment.

Commentary to Guidelines, § 5G1.3 (November 1, 1990).

     Gross contends, and rightly so, that this court must apply the

version of the guidelines effective at the time of sentencing.     See

18 U.S.C. § 3553(a)(4)5; United States v. Brown, 920 F.2d 1212,

1216 (5th Cir.), cert. denied,           U.S.    , 111 S.Ct. 2034, 114

L.Ed.2d 119 (1991) ("Baring any ex post facto concerns, a district

court must consider only the guidelines and policy statements that

are in effect on the date the defendant is sentenced, not on the

date the crime was committed.").       Gross was sentenced November 15,

1991 and therefore the USDC should have applied to Gross the



     Guidelines, § 5G1.3 (November 1, 1990).
     5
         18 U.S.C. § 3553(a)(4) states:

           (a) [t]he court, in determining the particular
           sentence to be imposed, shall consider. . .
           (4) the kinds of sentence and the sentencing
           range established for the applicable category
           of offense committed by the applicable
           category of defendant as set forth in the
           guidelines . . . that are in effect on the
           date the defendant is sentenced;
           (5) any pertinent policy statement issued by
           the Sentencing Commission. . . that is in
           effect on the date the defendant is sentenced.


                                   4
version of § 5G1.3 effective November 1, 1991.     As noted, that

version of § 5G1.3 required that the court sentence Gross so that

his sentence would "result in a combined sentence equal to the

total punishment that would have been imposed under § 5G1.2 . . .

had all the sentences been imposed at the same time."6    The USDC

did not sentence Gross in that way, but instead erroneously applied

an outdated version of § 5G1.3 in ordering Gross's sentences to run

consecutively.

     A.   Applicability of 18 U.S.C. § 3584(a)

     The government contends that the USDC sentenced Gross properly

because no matter the requirements of § 5G1.3, 18 U.S.C. § 3584(a)

gave the USDC the discretion to order Gross's sentences to run

consecutively.    18 U.S.C. § 3584(a) states that "[i]f 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 consecutively or concurrently. . . ."     According to the

government, 18 U.S.C. § 3584(a) gave the USDC the discretion to

order Gross's sentences to run consecutively, and the requirements

of § 5G1.3 of the guidelines could not impede that discretion.

     In United States v. Miller, 903 F.2d 341 (5th Cir. 1990), this

court addressed the apparent tension between § 5G1.3 and 18 U.S.C.

     6
        We find and the government concedes that Gross fit within
the criteria of § 5G1.3(b)--(1) he was serving a prior undischarged
term of imprisonment imposed under the guidelines for the federal
offense of bank robbery, and (2) § 5G1.3(a) did not apply because
he committed the present offense (i) before he was sentenced and
(ii) before he began serving his sentence for the Chicago bank
robbery.

                                 5
§ 3584(a), although under a different version of the guidelines.

In Miller, the defendant, who had previously been convicted and was

then serving a sentence for bank robbery in Arizona, pled guilty in

Texas to six additional bank robberies.    At sentencing, the court

ordered the defendant's sentence for the six bank robberies to run

consecutively to his undischarged sentence for the prior Arizona

bank robbery.   On appeal, the defendant contended that the court

erred in ordering his sentences to run consecutively because §

5G1.3's apparent obligation on the court to impose consecutive

sentences could not be valid considering the discretion to impose

consecutive or concurrent sentences vested in the court by 18

U.S.C. § 3584(a).   Then, the effective version of § 5G1.3 stated:

          [i]f 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 or more of the
          instant offense(s) arose out of the same
          transactions or occurrences as the unexpired
          sentences.

This court rejected the defendant's contention, holding that §

5G1.3 was a proper restraint on the discretion in 18 U.S.C. §

3584(a) because under § 5G1.3 the court retained some discretion in

its power to depart from the guidelines.

      This court's holding in Miller applies with equal force to

the present case.   In the present case, just as in Miller, the USDC

had the discretion to depart from the guidelines with the only

distinction being that in Miller the issue was the ability of the

USDC to depart downward, whereas in the present case the issue is

the ability of the USDC to depart upward.    For our purposes that

                                  6
distinction is not meaningful and therefore we hold that the grant

of   discretion   in     18   U.S.C.   §   3584(a),   as   applied   to    the

requirements of the effective version of § 5G1.3, can only be

exercised through the vehicle of departure from the guidelines.

Put another way, § 5G1.3(b)'s requirement that Gross's sentence

"shall be imposed to result in a combined sentence equal to the

total punishment that would have been imposed . . . had all the

sentences been imposed at the same time" was curtailed only by the

discretion of the USDC to depart from the guidelines.                In the

present case, both parties agree and it is evident from the record

that the USDC did not depart upward from the guidelines, and thus

the USDC erred in ordering Gross's sentences to run consecutively.

      B.   Plain Error

      Even if the USDC erred in applying an outdated version of the

guidelines, the government contends that this court should not

vacate the sentence and remand for sentencing because Gross did not

object to the presentence report or the USDC's order at the

sentencing hearing that his sentences run consecutively.7                 If a

defendant fails to object to his sentence, this court will reverse

his sentence only upon a finding of plain error.           United States v.

Ebertowski, 896 F.2d 906 (5th Cir. 1990).             "To constitute plain

error, the error must have been so fundamental as to have resulted

in a miscarriage of justice."          Ebertowski, at 907 (quoting United


       7
         Gross concedes that he did not object to his sentence,
however, he points out that he submitted to the USDC a memorandum
in aid of sentencing that asserted that his sentences should run
concurrently.

                                       7
States v. Yamin, 868 F.2d 130, 132 (5th Cir.), cert. denied, 492

U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). This court cannot

review issues raised for the first time on appeal unless they

involve purely legal questions and our failure to consider them

would result in manifest injustice.       United States v. Garcia-

Pillado, 898 F.2d 36, 39 (5th Cir. 1990).

     As demanding as the burden required of Gross under the plain

error standard is, we are convinced that the USDC's error in

incorrectly applying the guidelines was sufficient to meet that

standard.    In sentencing Gross, the USDC applied an outdated

version of the guidelines that resulted in Gross receiving a

substantially longer sentence than he would have if the USDC had

used the version of the guidelines then applicable.8   Application

of the guidelines by the USDC is a question of law and undoubtedly,

in the present case, the mistake of law committed by the USDC in

applying an outdated version of the guidelines resulted in manifest

injustice.   Therefore, we reject the government's contention that

we should not vacate Gross's sentence and remand for resentencing

because we hold that the USDC committed plain error in ordering

Gross's sentences to run consecutively.




    8
       Gross contends that if the USDC had sentenced him according
to the 1991 version of § 5G1.3(b), and consequently under § 5G1.2
(Sentencing on Multiple Counts of Conviction), he would have had an
offense level of 27 with a criminal history category of V and
received a sentence of 120-150 months. That figure is based on an
offense level of 25 contained in the presentence report prepared
for the Chicago bank robbery plus a two level increase pursuant to
§ 3D1.4.

                                 8
       Additionally, we acknowledge that § 5G1.3 has been again

amended to be effective on November 1, 1992 so that when Gross is

resentenced the 1992 version of § 5G1.3 will be in effect.                In the

1992   version    of    §   5G1.3,    subsection   (b)   has   been   deleted.

Subsection (c), however, has not been changed and states 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 offense."          Subsection (c) of the 1992 version would

control Gross's resentencing on remand; but the application thereof

could result in an increase in Gross's sentence.9              Gross should not

be prejudiced by the USDC's error in incorrectly applying the then

applicable guidelines at sentencing.               Because Gross's sentence

could be increased under the amended version of § 5G1.3, we

instruct the USDC on remand to resentence Gross under the 1991

version of § 5G1.3.




        9
          We realize that the commentary to the 1992 version §
5G1.3(c) states "[t]o 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." It is possible therefore that on
remand Gross would receive the same sentence whether the 1991 or
the 1992 version of § 5G1.3 were applied. However, because there
is also a possibility that Gross could receive an increase in his
sentence as a result of applying the 1992 version, we order the
USDC to resentence Gross in accordance with the 1991 version of §
5G1.3.

                                         9
                          III.   CONCLUSION

        For the reasons stated above, the sentence of the USDC is

VACATED and the case is REMANDED with orders for the USDC to

resentence the defendant according to the 1991 version of § 5G1.3

of the guidelines.




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