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. e du/thir dc ir c uit_2000/141Filed 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 th e United States District Court for the District of Columbia, sittin g 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 indictme nt 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 cons ider the application of U.S.S.G. S 5G1.3(c) p.s. ("section 5 G1.3") in a
situation in which a court sentences a defendant al ready 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 u nder the version of section 5G1.3 prior to its amendment, ef fective November 1, 1995, to its current form which the par ties agree is applicable in this case.

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

2violation on June 23, 1999. Subsequently, on Novemb er 10,

1999, Saintville was convicted in the Court of Comm on 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 sent enced 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 attorne y changed her request and asked the court to run his sentence on the federal charge concurrently with hi s state sentence. In support of this request she indicated that she had calculated that the hypothetical combined sente ncing range, treating both the federal and state charges as having been prosecuted in the federal court, would have be en 51 to 63 months of imprisonment, a calculation with wh ich the government did not take issue then or even now. Thu s, in Saintville's view the state sentence adequately pun ished
him for both the federal and state offenses. Moreov er, in an attempt to justify her request for concurrent sente nces, Saintville's attorney contended that the case was u nusual because ordinarily sentences are "harsher" in feder al than state courts. Thus, the state sentence imposed a ve ry substantial punishment even if it encompassed the f ederal

sentence.

The prosecutor, however, had a different approach. His position was straightforward and directly to the po int. He said that he "would simply point out that it is wit hin the
Court's discretion to enter this sentence consecuti vely 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 i t properly sits." App. at 23.

Ultimately, after hearing extensive colloquy, inclu ding a statement from Saintville, the district court sente nced him to a 46-month imprisonment term which was at the bo ttom of his imprisonment range of 46 to 57 months. The c ourt reached somewhat of a middle ground on the question of
whether the sentence should be concurrent or consec utive to the state sentence, as it provided that ten mont hs would
be concurrent and the balance would be consecutive to the

3state sentence. Saintville then filed a timely appe al. We

exercise plenary review of the district court's ord er 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 part ially 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 imposin g the
sentence the district court erred as a matter of la w because it failed to consider the hypothetical combined sen tencing range which would have been applied if the United S tates had prosecuted both the unrelated state drug offens es 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 pri or undischarged term of imprisonment to achieve a reas onable punishment for the instant offense." He argues that the Commentary to the guideline required the court to c onsider the hypothetical combined sentencing range which wo uld have been applicable if both prosecutions had been in the district court. In his view, consideration of the h ypothetical 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 com bined 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 senten cing range as Saintville's attorney set forth the range and the prosecutor did not challenge what she said. But the re is a more fundamental reason why we reach our result. As we have indicated, section 5G1.3(c) and its Commentary were

4amended in 1995 after the sentencing at issue in Ri os v.

Wiley so that the guideline now is in the form we h ave set forth above. See U.S.S.G. App. C, amend. 535 (effec tive Nov. 1, 1995). At the time of the sentencing at iss ue in Rios v. Wiley, section 5G1.3(c) provided that "the sente nce for the instant offense shall be imposed to run consecu tively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental puni shment for the instant offenses." (Emphasis added.) Thus, in Rios v. Wiley, but not here, the guideline in effect at sen tencing
made clear to the court that it must consider the reasonableness of the sentence taking into account its "incremental" character. Courts repeatedly have hel d that in view of the 1995 amendment, as well as the amend ment 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); Uni ted States v. Luna-Madellaga, 133 F.3d 1293, 1294-96 (9 th Cir. 1998). Now, as the Commentary to section 5G1.3 sets forth, the court, "[t]o achieve a reasonable punishment an d avoid unwarranted disparity, . . . should consider the fa ctors 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 secti on 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 refere nced statutes or Commentary requires the court to make a hypothetical sentencing calculation. Moreover, dele tion of the requirement in section 5G1.3 that the court run a sentence consecutively to the extent necessary to a chieve 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 a ny 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 th e sentence was to be concurrent and the balance conse cutive to the state sentence, still "[n]othing in the lang uage of [section 5G1.3(c)] or its Commentary requires distr ict

5courts to make specific findings with respect to an y or all

of the factors listed in the Commentary or [18 U.S. C.] S 3553(a)." United States v. Velasquez , 136 F.3d a t 924. Here, in view of the extensive presentence report a nd the sentencing colloquy, we are confident that the cour t considered the applicable statutory sentencing fact ors and was cognizant of the germane information it needed" to achieve a reasonable punishment" for the offense in volved
and made its determination on that basis. See sect ion 5G1.3(c). After all, as the prosecutor pointed out, if the court had made the sentence completely concurrent t o 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 sente nce partially consecutive to the state sentence.

III. CONCLUSION

For the foregoing reasons the judgment of convictio n 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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