## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4399

___________ United States of America, *

Appellee, * Appeal from the United States

v. * Western District of Missouri. Joseph D. Comstock, *

Appellant. * *

* District Court for the

*

*

*

___________ Submitted: May 12, 1998 Filed: September 3, 1998

___________ Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. Joseph D. Comstock appeals his sentence following his gui lty pleas to one count of bank fra ud and one count of credit card fraud. Comstock argues that the distric t court erred in sentencing him to a 30-month term of imprisonment to run consecutively with his two concurrent, undischarged terms of imprisonment for state law convictions. We vacate his sentence and remand for resentencing consistent with this opinion.-2- I.

On Mar ch 4, 1996, a grand jury returned an indictment against Comstock , alle ging four counts of bank fraud in violation of 18 U.S.C. § 1344 (1994), and on e count of credit card fraud, in violation of 18 U.S.C. § 1029(a)(2). The indictmen t allegedthat Comstock committed the criminal acts between November 1992 an d January 1994.

Subs equent

to the return of this indictment, Comstock was sentenced to tw o terms of imprisonment for state law convictions. On December 5, 1996, a California state court sentenced Comstock to two years in custody on his convictions for tw o counts of fraudulently p assing nonsufficient funds checks. On December 6, 1996, the
sam e court sentenced Comstock to two years in custody on his convictions for tw o counts o f fraudulently passing nonsufficient funds checks and one count of felon y burgla ry. The court ordered this sentence to run concurrently with Comstock’ s December 5 state court sentence.

Comstock m ade his initial appearance on the federal indictment on April 17 , 1997. On May 14, 1997, Comstock pleaded guil ty to one count of bank fraud and one count of cre dit card fraud. The court then ordered the preparation of a presentenc e investigation report (PSIR).

The distri ct court held a sentencing hearing on December 3, 1997, followin g completio n

of the PSIR. Although neither party made any objections to the PSIR , Comstock requested t

hat his federal sentence be imposed to run concurrently with his two undischarged California state sentences. At the sentencing hearing, the distric t court adopted the factual findings in the PSIR and proceeded to sentence Comstoc k using the November 1 , 1995, version of the federal Sentencing Guidelines. The court first grouped the bank fraud and credit card fraud counts together, resulting in a base offense level of six. See U.S. Sentencing Guidelines Manual §§ 2F1.1, 3D1.2(d)We note that the district court sentenced Comstock on December 3, 1997, so 1 the then-current version of the Guide lines was actually the November 1, 1997 version, and n ot the 1995 version used by the court. See USSG § 1B1.11(a) (1997)

. Nevertheless, this oversight is immaterial for purposes of this appeal because § 5G1.3 was the same in both the 1995 and 1997 versions of the Guidelines. Compare USSG § 5G1.3 (1995), withUSSG § 5G1.3 (1997). -3- (1995). Nex t, the court determined that the total amount of loss attributable to th e federal fraud offenses was $35,398.59, requiring a four-level enhancemen t to Comstock’s offense l evel. See id. § 2F1.1(b)(1). The court then added a two-level enhancement to Comstock’ s offense level because his offenses involved more than minimal planning or
a scheme to defraud more than one victim. See id. § 2F1.1(b)(2). After finding tha t Comstock had accepted

responsibility for his criminal conduct, the court applied a twolevel red uction, see id. § 3E1.1(a), resulting in an offense level of ten. The court nex t determined t

hat Comstock’s criminal history, including his existing California state law convictions, placed him in criminal history category VI. These calculations resulted in
a s entencing range of 24 to 30 months. See id. Ch. 5, Pt. A (Sentencing Table). Th e court re jected Comstock’s request for a concurrent sentence pursuant to sectio n 5G1.3(c), p.s., and ordered him to serv e a 30-month sentence to run consecutively to his undischargedstate sentences. The court also required Comstock to pay $17,607.62 in restitution.

II.

Comstock’s only argument on appeal is that the district court erred in using th e 1995 version of section 5G1.3(c) of the Sentencing Guidelines to deny his request fo r concurrent

sentences, rather than the 1993 version of section 5G1.3(c), which was i n

1 effect at the time Coms tock committed his offenses. Comstock claims that this resulted in a violation of the Ex Post Facto Clause of the United States Constitution, see U.S

. Const. art. I, § 9, cl. 3, because his sentence under the 1995 Guidelines is harsher than that which he would have received under the 1993 Guidelines. Comstock’s argument-4-

is dependent upon his contention that under the 1993 version of section 5G1.3 at leas t part of his sentence would be ordered to run concurrently, rat her than consecutively, with his undischarged state sentences. Whil e we review the district court’s application of the Sentencing Guidelines de novo, United States v. Gullickson , 981 F.2d 344, 346 (8th Cir. 1992), we also are required by the statute to give “due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(d).

Comst ock

concedes that he raises his ex post facto claim for the first time o n appeal

. Therefore, we review his claim for plain error. See Fed. R. Crim. P. 52(b)

. Under such review, we examine whether the district court committed plain error and, if
s o , then determine if it affected Comstock’s substantial rights. United States v. Olano , 507 U.S. 725, 735 (1993). If there was plain error and substantial rights were affected, we then exercise our discretion to vacate Comstock’s sentence only “if the error seriously affe cts the fairness, integrity or public reputation of judicial proceedings.” Id. at 73 6 (internal quotations and alterations omitted).

A 19 95 amendment to section 5G1.3(c) changed the methodology used by a district court in senten cing a defendant with a prior undischarged term of imprisonment. SeeUSSG App. C, Amend. 535 (1995). We first determine whether the district court’s application of the 1995 ver sion of section 5G1.3(c) in sentencing Comstock violates the Ex Post Fa cto Clause. “To fall within the ex post facto prohibition, a law must b e retrospective—that is it must apply to events occurring before its enactment—and it must disadvantage the of

fender affected by it by altering the definition of criminal conduct or increasing the punishment of the crime.” Lynce v. Mathis , 519 U.S. 433, ___, 117 S. Ct. 891, 896 (1997) (in ternal quotations and citation omitted). Because an amendment to a Sentencing Guideline ha s the potential to increase a defendant’s punishment for a crime committed prior to the amendment, “the ex post facto clause is violated if a defendant is sentenced under the Guidelines in effect at the time of sentencing when those Guidelines produce a sentence harsher than one permitted under the Guidelines in effect at the time the crime is committed.” United States v. Bell , 991-5-

F.2d 1445, 1452 (8th Cir. 1993). We now compare C omstock’s potential sentence under the 1995 and 1993 versions of section 5G1.3(c) to determine whether the 199 5 amendment, enacted after Comstock committed his offenses, results in a harshe r punishment.

When sen tencing a defendant who is subject to an undischarged term o f impris onment, a district court must apply the procedures set out in section 5G1.3. Se e United St ates v. Marsanico , 61 F.3d 666, 668 (8th Cir. 1995); Gullickson , 981 F.2d a t 349. U nder the 1995 version of section 5G1.3(c), Comstock’s sentence could b e “impos ed to run concurrently, partially concurrently, or consecutively” to hi s undis chargedstate sentences “to achieve a reasonable punishment” for his federa l off enses. The application notes make clear that “[t]o achieve a reasonable punishmen t andavoid unwarranted disparity, the court should consider the factors set forth in 1 8 U.S .C. § 3584.” USSG § 5G1.3, comment. (n.3). Here, the district court considere d these factors and concluded that Comstock’s 30-month senten ce should run consecutively to his undischarged state sentences in order to achieve a reasonable punishment for hi s federal fraud offenses. At the time of his sentencing in December 1997, Comstock had served 12 months on his 24-month undischarged state sentences. Thus, under the 1995 Guidelines, Comstock faced a total pun ishment on his state and federal convictions of 54 months’ imprisonment (12 mo nths already served on his concurrent state sentences, plus 12 months remaining to be ser ved on his state sentences, plus 30 months to be served on his consecutive federal sentence).

Unde r the 1993 version of section 5G1.3(c), a defendant’s sentence “shall b e imposed t o run consecutively” to an undischarged sentence “to the extent necessary t o achie ve a reasonable incremental punishment” for the federal offense. (Emphasi s supplied). Thi s section requires “the sentencing court to determine the total punishment for all the offenses as if USSG § 5G1.2 were applicable.” Gullickson , 981 F.2d at 346;
see USSG § 5G1.3, comment. (n.3) (1993). The application notes provide that afte r determining this total punishment, “[t]o the extent practicable, the court should considerThe amount of l oss attributable to Comstock’s fraud offenses is the sum of his 2 state law no nsufficient fund check counts and his federal bank and credit card frau d counts. Comstock passed insu fficient fund checks of $250.85, $829.07, $15,000, and $7,055. ( SeePresentence Investigation Repor t at 12.) The amount of loss attributable to Comstock’s federal fraud offenses was $35,398.59. ( See id. at 7.) Thus, the total amount of loss attributable to the fraud offenses group is $58,533.51.
-6- a reasonab le incremental penalty to be a sentence for the instant offense that results in a combi nedsentence of imprisonment that approximates the total punishment that woul d have be en imposed under § 5G1.2 . . . had all of the offenses been federal offenses fo r which sentences were being imposed at the same time.” USSG § 5G1.3, comment. (n.3) (1993).
Thus, under the 1993 Guidelines, the court would senten ce Comstock as if he were being sentenced on his federal and state convictions at the same time under th e Guidelines. This requires the co urt to determine how Comstock’s California convictions would be treated under the federal Sen tencing Guidelines. His nonsufficient funds check convictions would be treated under section 2 F1.1, the Guideline for fraud and deceit, and his burglary count would be treated under section 2B2.1, the burglary Guideline.
Section 5G1.2(b) (Sentencing on Mul tiple Counts) instructs the court to determine the total punishment in accordance with Part D of Chapter 3 (Grouping Multiple Counts) where, as here, none of Comstock’s offenses carry a statutorily mandated consecutiv e sentence. Pursuant to section 3D1.2(d), Comstock’s fraud and deceit offenses covered by section 2F1.1, representing his state law nonsufficient funds check convictions an d federal bank and credit card fraud convictions, woul d be grouped together for sentencing. His other offense, the state burglary conviction covered by section 2B2.1, would b e placed in a s econd, separate group. The fraud group would have a base offense level of six pursuant to section 2F1.1(a), and would be increased by five levels pursuant to section 2F1.1(b)( 1)(F) because the amount of loss attributable to these offenses is greater tha n $40,000, but less than $70,000. 2-7-

Because Comstock’s fraud offenses inv olved more than minimal planning or a scheme to defraud more than one victim, his offens e level would be increased by another two levels pursuant to section 2F1.1(b)(2). Thus, his total offense level for the fraud group would have been 13.

We next determine what Comstock’s offense level wou ld have been for the second gro up—consisting solely of his state law burglary conviction. Comstock’s burglar y involved the unlawful entry into a commercial building with the intent to commit larceny. ( See Pres entence Investigation Report at 12.) Therefore, his base offense level for th e second group would have been 12. See USSG § 2B2.1(a)(2) (1993).
Pursuant to section 3D1.4, Coms tock’s combined offense level for the two groups under the 1993 Guidelines would be calculated by “taking the offense level applicable to the Group with the highest offense le vel and increasing that offense level by” the level or levels determined bycalculating a number of “Units” under the section. The group with the highest offense level, the fraud group, counts as one Unit under this section. Se e USSG § 3D1.4(a). An add itional Unit is counted for the second group because it has an offense level one less than the fraud group. See id. The total of two Units requires a twolevel enhance ment to the higher group's offense level, see id. § 3D1.4, resulting in a combined o ffense level of 15. This combined offense level would then be decreased by two levels to account for Comstock’s acceptance of responsibility. See id. § 3E1.1(a)

. Thus, Comstock’s bottom line adjusted offense level under the 1993 Guidelines woul d have been 13.

We next c alculate Comstock’s criminal history to determine the sentencing range under the 1993 Guidelines. Because Comstock’s California convictions for“In some circumstances such incremental punishment can be achieved by th e 3 imposition of a sentence that is concurre nt with the remainder of the unexpired term of imprisonment.” USSG § 5G1.3, comment. (n.3) (1993).
I d. Because of the difficulty involved in determining on December 3, 1997 , 4
exac tly how many months of the California state sentences Comstock would actually se rve, the first alternative of making the 25-month federal incremental portio n co ncurrent

with the remaining California time would eliminate any uncertainty an d result in the serving of the full federal portion. -8- no nsufficient

funds checks and burglary are included as offenses for which he is bein g sentenced under the section 5G1.3( c) hypothetical analysis of the 1993 Guidelines, these convic tions are not included in his criminal history calculation. See United States v

. Duranseau , 26 F.3d 804, 811 n.7 (8th Cir.), cert. denied , 513 U.S. 939 (1994). Excluding these co nvictions results in a criminal history point total of 11, placing Comstock i n crimin al history category V. An offense level 13 with a criminal history category of V results in a sentencing range of 30 to 37 months. See USSG Ch. 5, Pt. A.

This 30- to 37-month range represents the total hypothetical sentence tha t Comstock

would have received had he been sentenced for the California state la w convictions in federal court at the same time as his federal offenses. The government did not dispute this determination in either its brief or at oral argument. We must no w determine what portion of the 37-month maximum sentence would represent a “rea sonable incre mental sentence” imposed on December 3, 1997, for the federal offenses. At th e time of sentencing, Comstock had served 12 months of his state sentences and had 1 2 months remaining. Thus, the maximum federal sentence the court could impose pursuant to the 1993 ver sion of § 5G1.3(c) was 25 months (the 37-month maximum minus the 12 months already ser

ved in state prison), the first 12 months of which maximum 25-month federal sentence would be ordered to run concurrently with the undischarged portion of Com stock’s state sentences. Alternatively, the district court could have imposed a 3

con secutive 13-month sentence to be served after Comstock completed his 24-month California state sentences. Therefore, under the 4-9-

1993 Guidelines, Comstock would have faced a maximum tota l punishment of 37 months' imprisonment

for his California and federal convictions, 17 months less than the 5 4 months o f total imprisonment he actually received under the 1995 Guidelines. Thi s increase in punishme nt is caused by the district court's application of the 1995 change in federal sentencing law made after Comstock had committed his crimes. Therefore , applyi ng the 1995 Guidelines to sentence Comstock is a clear violation of the Ex Pos t Facto Clause. See Bell , 991 F.2d at 1452.
The governm

ent argues the district court did not violate the Ex Post Facto Clause because the court could have s entenced Comstock to the 30-month consecutive sentence resul ting in 54 months of total imprisonment under the 1993 Guidelines by departin g upward. A district court may depart upward when sentencing pursuant to section 5G1.3 when it finds agg ravating circumstances that are not adequately taken into consideration by the Guidelines and provides specific reasons for the departure. See United States v. Muzingo , 999 F.2d 361, 363 (8th Cir.), cert. denied , 510 U.S. 1002 (1993); Duranseau , 26 F.3d at 81 1. The government suggests that the district court would have departe d upward because Comstock’s c riminal history does not adequately reflect the seriousness of his criminal past. See USSG § 4A1.3. The record shows that the district cour t sentenced Comstock at the top of the senten cing range primarily because of his extensive criminal reco rd. (Sent. Tr. at 7-8). However, because it is unclear from the recor d whether the court also would have found that Comstock’s criminal past justified a n upward departure, we reject the gov ernment’s argument. See Marsanico , 61 F.3d at 669 (not ing that court may depart upward after applying § 5G1.3(c), but remanding fo r resentencing because record was unclear regarding whether the court would hav e departed upward).-10-

Fi nally, we must determine whether the ex post facto violation constitutes plai n error requiring us to vacate Comstock’s sentence. See Olano , 507 U.S. at 735-36. The violation is error and Comstock’s substantial rights were clearly affected because, as he
was sentenced, he would end up serving 17 more months in prison than he might have served had he been sentenced absent the error. We also easily conclude that this erro r “se riously affect[ed] the fairness” of the sentencing proceedings. Id. at 736; see als o Marsanico , 61 F.3d at 668 (not correcting such a 21-month senten cing error “would result in a miscarriage of justice”). Therefore, Comstock is entitled to resentencing under the correct version of the Guidelines.

III.
Accordingly, we vacate Comstock’s sentence and remand the case to the district court for resentencing under the 1993 Sentencing Guide lines. We express no view on the merits of the government’s anticipated upward departure motion.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.