2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/141
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 

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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 

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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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