* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40408

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL CAVAZOS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

- - - - - - - - - -

August 1, 1997

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Saul Cavazos was convicted for possession of marijuana with

intent to distribute and has appealed his sentence. Cavazos

states several times in his brief that, contrary to statements

made by the district court, he was not sentenced at the bottom of

the guideline imprisonment range. Cavazos is incorrect. 

Cavazos’ base offense level of 26 was reduced by three levels for

acceptance of responsibility. Cavazos’ total offense level of
 

2 The source of this confusion appears to be a misprint

in the district court’s statement of reasons for imposing its

sentence, in which the criminal history category is listed as

“II” instead of “III.” The guideline range listed in that

document is for a level 23, category III, however, and the

analysis in the PSR, which was adopted by the district court,

found that Cavazos has a criminal history category of III. 

 

3 Cavazos does not raise as an issue on appeal whether his

offense level should have been adjusted under U.S.S.G. § 3B1.2

because of his minor role in the offense. 

2

23, together with a criminal history category III, resulted in a

guideline imprisonment range of 57-71 months. Cavazos was

initially sentenced to a 57-month term of imprisonment. The

district court departed downward one level in granting the

Government’s § 5K1.1 motion. The resulting guideline

imprisonment range was 51-63 months. Cavazos’ term of

imprisonment, following the departure, was 51 months. Although

Cavazos did not receive the shortest possible aggregate sentence

because the district court did not order that the sentences for

the two drug convictions run concurrently, Cavazos was sentenced

at the bottom of the guideline range for the instant offense.2

Cavazos argues that the district court should have sentenced

him to serve his sentences for his two possession-of-marijuana

convictions concurrently. Cavazos contends that the district

court would have been persuaded to order concurrent sentences if

the Government had been compelled to divulge evidence showing

Cavazos’ minor role in the offense.3 

When a defendant is subject to an undischarged term of
 

4 Because the district court clearly had authority to impose

a concurrent sentence under § 5G1.3(c), Cavazos's argument

regarding whether the district court erroneously believed that it

lacked authority to depart downward is a “red herring.” A

concurrent sentence would not have involved a departure from the

guidelines.

3

imprisonment, the district court generally has authority to

impose a term of imprisonment on the current offense to run

concurrently with, or consecutively to, the prior undischarged

term of imprisonment, subject to consideration of the factors

listed in 18 U.S.C. § 3553(a) and applicable guidelines or policy

statements.4 See U.S.S.G. § 5G1.3 comment. (background note)

(citing 18 U.S.C. § 3584(a)). The guidelines permit the district

court to impose a concurrent or consecutive sentence (except in

circumstances not applicable here) “to achieve a reasonable

punishment for the instant offense.” § 5G1.3(c). The commentary

to § 5G1.3 provides:

To achieve a reasonable punishment and avoid

unwarranted disparity, the court should consider the

factors set forth in 18 U.S.C. § 3584 (referencing

§ 3553(a)), and be cognizant of:

(a) the type(e.g., determinate, indeterminate,

parolable) and length of the prior undischarged

sentence;

(b) the time served on the undischarged sentence and

the time likely to be served before release;

(c) the fact that the prior undischarged sentence may

have been imposed in state court rather than

federal court, or at a different time before the

same or different federal court; and 

(d) any other circumstance relevant to the
 

5 The factors set forth in § 3553(a) are as follows:

 (1) the nature and circumstances of the offense and

the history and characteristics of the defendant;

 (2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide punishment for the

offense; 

(B) to afford adequate deterrence to criminal

conduct; 

(C) to protect the public from further crimes of

the defendant; and

(D) to provide the defendant with needed

educational or vocational training, medical care, or

other correctional treatment in the most effective

manner; 

 (3) the kinds of sentences available;

 (4) the kinds of sentence and the sentence range

established for-- 

(A) the applicable category of offense committed

by the applicable category of defendant as set forth in

the guidelines that are issued by the Sentencing 

Commission pursuant to § 994(a)(1) of title 28 United

States Code, and that are in effect on the date the

defendant is sentenced . . .

 (5) any pertinent policy statement issued by the

Sentencing Commission pursuant to 28 U.S.C.

§ 994(a)(2) that is in effect on the date the 

defendant is sentenced; 

 (6) the need to avoid unwarranted sentence

discrepancies among defendants with similar records who

have been found guilty of similar conduct; and

 (7) the need to provide restitution to any victims of

the offense.

18 U.S.C. § 3553(a); see United States v. Richardson, 87 F.3d

706, 709 (5th Cir. 1996). 

4

determination of an appropriate sentence for the

instant offense.

§ 5G1.3 comment. (n.3).5
5

Although § 5G1.3(c) is a “policy statement,” it, along with

and its interpretive commentary, is binding on the district

court. United States v. Alexander, 100 F.3d 24, 25-26 (5th Cir.

1996), cert. denied, 117 S. Ct. 1273 (1997). “District court

decisions as to the application of consecutive or concurrent

sentences are reviewed for abuse of discretion.” Richardson, 87

F.3d at 709; see id. at 711 (inferring that the district court

had considered the § 3553(a) factors from its statement that it

had considered the objectives of punishment and deterrence in

imposing sentence).

In this case, it is clear that the district court believed

that the sentences should run consecutively because the two

convictions involved two separate offenses. The district court

was plainly aware of the aggregate sentence for the two drug

convictions and considered that sentence to be appropriate under

the circumstances. Although the district court did not expressly

apply the § 3553(a) factors, the district court’s reasons for

imposing consecutive sentence are no more obscure than those

which were found adequate by the court in Richardson. See 87

F.3d at 710-11. Cavazos had been released on bond following his

arrest for possession of marijuana with intent to distribute. He

jumped bond and committed another narcotics violation while he

was a federal fugitive. Id. The district court’s imposition of

consecutive sentences did not result in an unreasonable aggregate

sentence under these circumstances and did not constitute an
6

abuse of discretion. Cavazos was sentenced at the bottom of the

guideline range. 

Cavazos contends that he should have been permitted to

elicit mitigating evidence showing his minor role in the offense.

Cavazos concedes that the facts which he believes are in dispute

did not affect his sentence but argues that the district court

should have resolved those factual disputes, nevertheless,

because of their impact upon his eligibility for parole and upon

the conditions of his confinement. Under U.S.S.G. § 6A1.3(b),

the district court is required to resolve “disputed sentencing

factors” in accordance with Fed. R. Crim. P. 32(a)(1). “When a

reasonable dispute exists about any factor important to the

sentencing determination, the court must ensure that the parties

have an adequate opportunity to present relevant information.” §

6A1.3 comment. Under Rule 32(c), the district court must rule on

unresolved objections to the PSR. 

The court may, in its discretion, permit the parties to

introduce testimony or other evidence on the

objections. For each matter controverted, the court

must make either a finding on the allegation or a

determination that no finding is necessary because the

controverted matter will not be taken into account in,

or will not affect, sentencing.

Fed. R. Crim. P. 32(c)(1). The district court determined that

the disputed facts did not affect the guideline calculation, and

sentenced Cavazos at the low end of his guideline imprisonment

range on the basis of Cavazos’ version of his role in the

offense. The district court expressly held that, under Cavazos’
7

version of his role in the offense, no adjustment in guideline

level, up or down, was merited. See United States v. Mueller,

902 F.2d 336, 346-47 (5th Cir. 1990). For that reason, evidence

pertinent to Cavazos’ role in the offense was not considered. 

The district court complied with Rule 32(c). Cavazos’

eligibility for parole and conditions of confinement are not

“sentencing factors.” Cavazos has not cited any authority which

stands for the proposition that factors pertinent to parole and

conditions of confinement must be resolved at sentencing. 

Cavazos contends that the district court erred in

determining that the sentences for the prior drug conviction and

the bond-jumping conviction were “prior sentences” within the

meaning of U.S.S.G. § 4A1.2, in calculating Cavazos’ criminal

history score. The district court credited Cavazos for time

served from the date of his second arrest in January 1995. 

Cavazos was sentenced for the prior marijuana conviction and

bond-jumping conviction after that date. Cavazos contends that

these sentences were not “prior sentences” because he had already

begun serving his sentence for the second marijuana conviction at

the time he was sentenced for those crimes. This argument is

without merit.

“The term ‘prior sentence’ means any sentence previously

imposed upon adjudication of guilt, whether by guilty plea,

trial, or plea of nolo contendere, for conduct not part of the

instant offense.” § 4A1.2(a)(1). “‘Prior sentence’ means a
 

6 Cavazos does not argue that the prior sentences are

related because they resulted from a common scheme or plan. See

§ 4A1.2 comment. (n.2). 

8

sentence imposed prior to sentencing on the instant offense,

other than a sentence for conduct that is part of the instant

offense.”6 § 4A1.2 comment. (n.1) (emphasis added). Because the

sentences for the first marijuana-possession conviction and the

bond-jumping conviction were imposed prior to sentencing for the

instant offense, they were clearly “prior sentence[s]” for

purposes of § 4A1.2.

AFFIRMED.