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,
_______________
P. McCloskey,
_____________

United

Assistant United States Attorney, with whom

States

Attorney,

and

Jonathan R. Chapm
___________________

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

burglary and sentenced

to

imprisonment,

was

Gondek

possession of a firearm.

under

the

felon

922(g)(1),

in

arrested

While

in

on parole

March

after

1994

for

The federal government indicted him

possession

924(a)(2).

In

failure to attend a drug

use, the state court

prison.

robbery and

statute.

consequence of

18

U.S.C.

his arrest,

treatment program, and his

alcohol

revoked Gondek's parole and imposed

him a three-year prison sentence.

his

on

Gondek then pled guilty in

federal court to a single count of firearms possession.

In January

sentence

on

1995, the district court

Gondek

and

concluded

that

imposed a 77-month

the

Sentencing

Guidelines required the federal sentence to run consecutively

to

the state

Gondek has now

sentence imposed

ordered.

parole violation.

appealed the federal sentence, arguing that a

consecutive sentence

been

after the

was not

His only

mandatory and should

substantial argument

interpretation of U.S.S.G.

5G1.3, a

not have

involves the

set of provisions that

are less than a model of clarity.

Section

5G1.3 governs

defendants who are convicted

the imposition

of sentences

of a crime while subject

undischarged term of imprisonment for a

on

to an

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

escape

status),

commencing

or

service

Subsection (b)

(including work release, furlough, or

after

of,

sentencing

such

term

for,

of

provides for a concurrent

__________

term

resulted

from offenses

fully

into

account"

(e.g.,
____

determining

the

offense

level

for

as

the

before

imprisonment."

sentence where the

undischarged

taken

but

an

"that

have been

adjustment)

present

in

offense.

Finally, under

sentence

achieve a

subsection

is to

(c) in

be consecutive

all other

cases the

"to the extent

reasonable incremental punishment

new

necessary to

for the instant

offense."

The commentary

latitude

in determining

punishment,"

although

covers a good

the extent

for subsection (c) gives

what is

it

offers

the court some

a "reasonable

one

incremental

generalization

many cases:

application note 3 says

practicable, the

court should achieve

punishment that

would

have been

imposed

"had all

that

that to

the total

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
instant

supervised release
offense,

and

has

at the time
had

such

of the

probation,

parole, or supervised release revoked, the sentence

for

the instant

offense should

served consecutively
violation

of

probation,

release in order to
for

the

to the

violation

be imposed

term imposed

parole,

or

to be
for the

supervised

provide an incremental penalty

of

-3-3-

probation,

parole,

or

supervised

release

expressed in

case.

accord

with

of application note 4

Gondek

was on state

present firearms possession

policy

imposed to

applies directly to

parole at the

time of the

offense, and the district

followed the directive that the sentence

"should be

the

7B1.3 and 7B1.4).

The language

this

(in

for the new offense

be served consecutively

to the

imposed for the violation of . . . parole . . . ."

question

that

is whether

this result

commentary were

would

the district

was

mandated by

only a

court erred

the

court

The only

in believing

guidelines; if

suggestion, then the

term

the

district court

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.

all,

is

appended to

discretion and

although

subsection

is explicitly

commentary policy

that

labeled a

is

than

after

does confer

some

"policy statement,"

also binding.

United States, 503 U.S. 193, 200-01 (1992).

______________

attach

The note,

Williams
________

v.

Some might also

weight to the note's use of the word "should," rather

"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

qualification

application

as to

sentence should

is

stated

or

be

made consecutive.

suggested.

In

other

No

words,

note 4 represents the Commission's determination

what is a

"reasonable incremental punishment"

narrow situation described in the note.

in the

Second,

entirely

understandable.

subsection

events,

(c), where

the

involves

offense

the rationale

parole

a new

the two

case

special treatment

many cases

offenses arise

covered

offense normally

by

Instead,

(a) instructs

that

note

the original

the situation is

the very situation

the new

by

from related

of the defendant who commits

still in prison,

is

governed

application

unrelated to

parole.

closely akin to the case

subsection

this

Unlike

that led to the

offense while

for

a new

in which

sentence

is to

be

served consecutively.

Third,

federal

the guidelines

court

imposes

revocation of probation or

served

consecutively to

elsewhere

term of

provide that

imprisonment

where a

"upon

supervised release," it is

any sentence

of imprisonment

the

to be

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

policy

of

referenced

this

in

to the federal

provision,

application

which

note

-5-5-

4,

is

sentence; but the

explicitly

makes

cross-

irrelevant

the

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

U.S.S.G.

prior to

application

based

in part

upon

7B1.3(f), United States v. Glasener, 981 F.2d 973,

_____________
________

975 (8th Cir. 1992);

397

note 4,

(11th Cir.

United States v. Flowers, 13

_____________
_______

1994); and

agreed with Gondek's view.

our own judgment, our

apparently no other

F.3d 395,

circuit has

Although we are obliged

confidence in it is reenforced

reaction of other circuits.

to make

by the

There

are

treatment.

three

On a

Commission, in

simplify the

deserve

separate

one

might ask

why the

matter by expanding the

(a) is

4 in

1993, did

not

language of subsection

It is probably enough to observe that

addressed primarily

imprisonment"; and

words--to

that

adding application note

defendant commits the

subsection

ends

technical level,

(a) to embrace parole.

subsection

loose

to cases in

new offense while

which a

"serving a term

it would have required

of

some reworking of

(a) as a whole--not merely the insertion of a few

allow

it

to

include

parole,

probation

and

supervised release.

The broader

spirit if

not in

question is whether

there is

language, between the

a clash,

in

apparently generous

-6-6-

grant

of

specific,

discretion

restrictive

Subsection (c)

designed as a

subsections (a)

had to

conveyed

directive

by subsection

of

be generally

catch-all for all

(c)

application

phrased because

and

the

note

4.

it was

situations not embraced

and (b), including ones

by

that the Commission

might not be

able to envision in advance.

to us inconsistent

situation

for the Commission

and treat

it expressly

It does not seem

to identify one

such

in commentary,

a pattern

itself application

note

common throughout the guidelines.

Indeed,

in subsection

reflects the same technique

overstate the

(c)

as

contains

whole.

a formula

likely to

calls

amount of

As

and suggests that it is

discretion conferred by

already

that governs

arise under subsection

on the court to

application.

regime that

See
___

noted,

a good

(c).

many of

That

is

United States
_____________

subsection

the cases

punishment as if

one case,

mathematical in

v. Whiting,
_______

formula, which

by a federal court in

virtually

easy to

application note

compute the overall

both sentences were imposed

involves

(c)

28 F.3d

its

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),

increase in

Gondek is

automatically subject to

criminal history points for

a two-point

his present offense

because it was committed while on parole for another offense.

To insist that

the new

sentence be consecutive

-7-7-

as well

is

therefore

form of

argument in

counting

double

counting,

favor of a lenient reading.

are

not

unusual

under

the

providing a

policy

But forms of double

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

contemplates

18

consecutive and

U.S.C.

choice

3584(a),

by

the

district

concurrent sentences.

provision

court

We have

that

between

previously

held

that the

court's discretion

constrained where the Commission

guideline.

(1st

Cir.

United States v.
_____________

1993).

Indeed,

under section

3584(a) is

has promulgated a governing

Flowers, 995 F.2d

_______

the

statute

315, 316-17

authorizing

the

guidelines specifically provides for them to include rules to

be used

of

in determining "whether multiple

imprisonment should

consecutively . . . ."

Gondek's

court

should

subsection

be

ordered to

28 U.S.C.

run concurrently

is a

have

subsection

(c), of U.S.S.G.

or

994(a)(1)(D).

final argument

applied

sentences to terms

claim that

5G1.3.

(b),

the district

rather

than

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

level for

the instant

-8-8-

account"

offense.

quoted

in determining

U.S.S.G.

language

the offense

5G1.3(b).

governs,

convictions were what made

Gondek argues

primarily

because

him a felon subject to

that

this

the

prior

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

commentary, would

case;

examples,

be state and federal

same conduct or a federal prosecution

offense

as

relevant

offense

level.

U.S.S.G.

felony conviction

is not "taken

sentencing,

apply.

conduct

in

indicated by

prosecutions for the

that treated the state

determining

that makes it unlawful to

and the

the

5G1.3, comment. (n.2).

into account"

in this manner

rationale

the

of subsection

federal

The prior

carry a firearm

in the

federal

(b) does

not

arguments

and

See Flowers, 13 F.3d at 397.

___ _______

Although

we

think

that

the

stronger

pertinent precedent

favor our interpretation

note 4, these arguments

Where

do not remove every

of application

possible doubt.

literally years of imprisonment may turn on the issue,

even a

shadow of a doubt ought not be allowed to persist.

copy of this

Commission

opinion will be

transmitted to the

with the suggestion

its intention.

Affirmed.
________

-9-9-

that it

Sentencing

consider clarifying