UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-10107

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

L.D. RICHARDSON,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

June 28, 1996

Before DUHÉ, BARKSDALE, DeMOSS, Circuit Judges.

PER CURIAM:

Appellant L. D. Richardson argues that the district court

abused its discretion when it applied a consecutive sentence

pursuant to § 5G1.3(c) by failing to consider certain factors

enumerated in 18 U.S.C. § 3553(a) which guide a court in its

determination of whether to impose a concurrent or consecutive

sentence. For the following reasons, we AFFIRM. 
2

BACKGROUND

On August 7, 1992, defendant L. D. Richardson was arrested for

being a felon in possession of a firearm. He was sentenced in

federal court to a term of 63 months in prison.

On March 23, 1994, a grand jury indicted Richardson and nine

others in a seven-count indictment charging various drug

trafficking crimes and related offenses. On October 6, 1994,

Richardson agreed to plead guilty to a superseding information

charging him with interstate travel in aid of racketeering

enterprises and aiding and abetting, in violation of 18 U.S.C. §

1952(a)(3) and (2). The government agreed to move to dismiss the

original indictment and to not oppose Richardson’s request that the

sentence for interstate travel run concurrently with his prior

felon-in-possession sentence. In his plea agreement, Richardson

indicated that he understood that it was ultimately within the

district court’s discretion to decide whether the sentences would

run concurrently or consecutively. The parties agreed that the

statutory maximum prison sentence was five years. 

A presentence investigation report (“PSR”) was prepared and

given to the district judge. The PSR stated that the sentencing

guidelines range exceeded the five-year statutory maximum;

therefore, the guideline range became 60 months. The PSR further
 

1 Prior to the 1995 amendments, which became effective on

November 1, 1995, § 5G1.3(a),(b),and (c)read as follows:

§ 5G1.3. Imposition of a Sentence on a Defendant

Subject to an Undischarged Term of Imprisonment

(a) If the instant offense was committed while the

defendant was serving a term of imprisonment

(including work release, furlough, or escape

status) or after sentencing for, but before

commencing service of, such term of imprisonment,

the sentence for the instant offense shall be

imposed to run consecutively to the undischarged

term of imprisonment.

(b) If subsection (a) does not apply, and the

undischarged term of imprisonment resulted from

offense(s) that have been fully taken into account

in the determination of the offense level for the

instant offense, the sentence for the instant

offense shall be imposed to run concurrently to the

undischarged term of imprisonment.

(c) (Policy Statement) In any other case, 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

offense.

U.S.S.G. § 5G1.3 (1994).

3

stated that U.S.S.G. § 5G1.3(b)1 should apply to the interstate

travel sentence, thereby mandating concurrent sentences. On

November 9, 1994, the district court rejected both the plea

agreement and Richardson’s guilty plea. 

On December 22, 1994, Richardson and the government entered

into an amended plea agreement. In their amended agreement,

Richardson and the government stipulated that U.S.S.G. § 5G1.3(c)

should apply instead of U.S.S.G. § 5G1.3(b). The government again

agreed not to oppose Richardson’s request for a concurrent
 

2 Paragraphs four and nine of Richardson’s amended plea

agreement state the following:

4. The sentence in this case will be imposed by the

Court. there is no agreement as to what that sentence

will be. Sentencing is pursuant to the Sentencing

Reform Act of 1984, making that sentencing guidelines

applicable. Defendant L.D. RICHARDSON has reviewed the

application of the guidelines with his attorney,

including those circumstances under with the court may

depart from the Guidelines, but understands no one can

predict with certainty what guideline range will be

applicable in this case until after pre-sentence

investigation has been completed and the Court has ruled

on the results of that investigations. Defendant L.D.

RICHARDSON acknowledges that he understands that the

court is required to consider the Guidelines but may

depart from, the Guidelines under some circumstances,

which circumstances are set forth in the Guidelines.

Defendant L.D. RICHARDSON will not be allowed to withdraw

his plea if the applicable guideline range is higher than

expected, or if the Court departs from the applicable

guideline range. 

9. Pursuant to Rule 11(e)(1)(B) of the

Federal Rules of Criminal Procedure, the

United States agrees not to oppose Defendant

RICHARDSON’S request that the sentence to be

imposed in this case run concurrently with the

federal sentence currently being served by

Defendant RICHARDSON in Cause No 5:92-CR-0108-

C, with the understanding that this request is

not binding upon the court. Defendant L.D.

RICHARDSON understands that the decision of

what sentence will be imposed in this case, as

well as whether the sentence in this case will

run currently with or consecutively to his

current sentence is totally within the

discretion of the Court. 

This plea agreement was signed by Richardson. Richardson stated on

the record, in open court, that he understood the terms of the

agreement. He does not now assert that his signature was coerced,

or that this agreement was made without his full understanding of

its conditions and implications. 

4

sentence. Richardson re-stated in his amended plea agreement that

he understood that the district court had the discretion to order

consecutive or concurrent sentences.2
 

3 At the time of the hearing, Richardson had served two and

one-half years of the five-year sentence which he was serving for

his first conviction. If concurrent sentencing was applied for the

second conviction, the second sentence would be added to the

undischarged term of the first sentence. Because the statutory

maximum sentence for his second conviction was five years, and

because Richardson had an undischarged term of two and one-half

years from his first sentence, at most, under concurrent

sentencing, only two and one-half years could be added to his first

sentence. On the other hand, a consecutive sentence would be

calculated to run from the time he completed the five-year sentence

for his first conviction.

 

4 Upon our de novo review of the record, we were initially

concerned with whether the district court correctly concluded that

5

The district court accepted both Richardson’s guilty plea and

the parties’ amended plea agreement. The next day, the probation

officer amended the PSR to apply U.S.S.G. § 5G1.3(c).

On January 20, 1995, the district court held a sentencing

hearing. At the hearing, Richardson did not object to the facts,

as stated in the PSR, or the guideline calculation recommended

therein. Richardson only asked the district court to make his

sentence run concurrently with his felon-in-possession sentence.3

The district court adopted the findings of the amended PSR and

ordered a sentence of 60 months to run consecutively to

Richardson’s felon-in-possession sentence.

Richardson timely filed a notice of appeal.

DISCUSSION

Richardson argues that the district court’s application of a

consecutive sentence was an abuse of discretion. Richardson does

not dispute that § 5G1.3(c) is the applicable sentencing

guideline4, nor does he contest that § 5G1.3(c) allows the district
subsection (c) of § 5G1.3, rather than subsection (b), applied to

the facts of this case. For the following reasons, we believe that

the district court was correct in applying subsection (c).

The key to determining whether subsection 5G1.3(b) or

subsection 5G1.3(c) applies, is whether or not the offense conduct

resulting in the incarceration for the undischarged term of

imprisonment was “fully taken into account in the determination of

the offense level for the instant offense.” U.S.S.G. § 5G1.3(b).

If the offense conduct was fully taken into account, then (b)

applies. If the offense was not fully taken into account, then (c)

applies. 

An examination of the PSR reveals that although the gun was

seized by authorities while investigating drug trafficking at a

residence on August 8, 1992, neither the PSR writer, nor the

sentencing judge, determined that the gun was used or possessed in

connection with another crime (i.e., drug trafficking). In fact,

only the gun and $4,843 in cash were seized. In addition, the

defendant claimed that he had the gun for personal protection. If

the gun was present to facilitate the drug trafficking activities

that were occurring at the resident, that conduct could have been

sanctioned by applying § 2K2.1(b)(5) or § 2K2.1(c).

The PSR for the instant conviction reflects that from July 2-

5, 1992 (dates prior to the dates of the conduct referenced in the

PSR for the felon in possession conviction), the defendant engaged

in the conduct of interstate travel in aid of racketeering (i.e.,

traveling to California with cash to purchase cocaine; purchasing

cocaine and transporting it back to Texas; manufacturing the

cocaine into “crack” cocaine; distributing approximately 400 grams

of “crack.”) Nothing in the PSR reflects that “relevant conduct”

occurred outside the prescribed time span (7/2-7/5) except the

vague phrase that “...he then subsequently knowingly and

intentionally distributed the approximate 400 grams of cocaine

base....” Of significance was that in calculating the offense

level for this offense, the PSR writer and judge determined that §

2D1.1(b)(1)(increase to offense level if a firearm was present) did

not apply.

Thus, the firearm possession (resulting in the undischarged

term of incarceration conviction) was not “fully taken into account

in the determination of the offense level for the instant offense,”

as mandated by § 5G1.3(b), making § 5G1.3(c) applicable. 

6

judge discretion in imposing either concurrent or consecutive

sentences. Rather, Richardson simply argues that, before imposing

the sentence, the district court failed to consider specific
7

factors enunciated in 18 U.S.C. § 3553(a), as required by 18 U.S.C.

§ 3584. The government argues that this court’s review should be

limited to plain error because Richardson failed to object to

either the PSR or the consecutive sentence at the sentencing

hearing. The government further argues that it was completely

within the district court’s discretion to impose a consecutive

sentence under § 5G1.3(c), and that the district court made this

decision after adequately considering the factors enumerated in §

3553(a).

District court decisions as to the application of consecutive

or concurrent sentences are reviewed for abuse of discretion.

United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.), cert.

denied, ___ U.S. ____, 111 S. Ct. 2034, 114 L.Ed.2d 119 (1991).

Section 3584 states, in relevant part:

(a) Imposition of concurrent or consecutive terms.

If multiple terms of imprisonment are imposed on a

defendant at the same time, or if a term of imprisonment

is imposed on a defendant who is already subject to an

undischarged term of imprisonment, the terms may run

concurrently or consecutively .... Multiple terms of

imprisonment imposed at different times run consecutively

unless the court orders that the terms are to run

concurrently.

(b) Factors to be considered in imposing concurrent

or consecutive terms. The court, in determining whether

the terms imposed are to be ordered to run concurrently

or consecutively, shall consider, as to each offense for

which a term of imprisonment is being imposed, the

factors set forth in § 3553(a).

18 U.S.C. § 3584. 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;
8

(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).

In support of its order imposing consecutive sentences, the

district court orally stated the following: 
9

I will now state on the record the

specific reasons for imposing the sentence

that I have just imposed.

As to the term of incarceration, the

statutory maximum is a 60-month term. That

becomes the guideline range. I have imposed a

term of incarceration of 60 months. I believe

a sentence of 60 months does adequately

address the sentencing objectives of

punishment and deterrence.

No fine is assessed for the reason I do

not believe the defendant has sufficient

assets at this point to pay a fine. The

three-year term of supervised release is

imposed for reason I believe the defendant

will need this amount of supervision to see

that he reassimilates himself back into

society, obtains suitable employment, and

maintains a law-abiding lifestyle.

The $50 special assessment is imposed

because the law mandates that it be.

Richardson argues that the district court’s language does not

evince a consideration of the seven factors enumerated in §

3553(a). Because § 3584 states that the district court shall

consider the factors set forth in § 3553(a), Richardson argues that

the district court abused its discretion by failing to accord such

consideration. 

The government disagrees and argues that the district court’s

oral statement shows that it did give proper consideration to the

factors in § 3553(a). Furthermore, the government asserts that we

should apply a plain error standard of review because Richardson

did not object to his sentence at the sentencing hearing.
10

Standard of Review

As to the applicable standard of review, it appears that

Richardson did preserve his issue for appeal. In United States v.

Hernandez, 64 F.3d 179 (5th Cir. 1995), which was issued two weeks

after the government filed its brief, we held:

Even though Hernandez failed to specifically

cite to § 5G1.3(c) in arguing that his

sentence should be imposed concurrently, he

clearly requested that the “sentence run

concurrent with the sentence that is

undischarged in Florida ... [a]nd we ask that

under § 5G1.3(c) of the Sentencing

Guidelines.” Although the specificity of

Hernandez’ request left something to be

desired, it alerted the district court to the

issue before it. This is not the case where a

party completely and utterly failed to make an

issue of the fact that his sentence should be

imposed concurrently with an undischarged

prison sentence. 

Hernandez, 64 F.3d at 181. Accordingly, considering the facts of

this case, we hold that Richardson raised this issue below.

Therefore, Richardson’s error was preserved for appeal. As such,

“[a]lthough we review a district court's decision to order

consecutive or concurrent sentences for abuse of discretion, see,

e.g., United States v. Devaney, 992 F.2d 75, 77 (6th Cir.), cert.

denied, ___ U.S. ____, 114 S. Ct. 237, 126 L.Ed.2d 191 (1993), we

review de novo whether the district court properly applied the

relevant sentencing guideline to the defendant.” United States v.

Cutler, 36 F.3d 406, 407 (4th Cir. 1994). 
11

Section 3553(a) Factors 

As to the government’s assertion that the district court

properly considered the seven factors enunciated in § 3553 (and,

thus, did not abuse its discretion in imposing a consecutive

sentence), the government argues that the district court’s oral

statement evinces a proper consideration of the statutory factors.

The government argues that, “while the court ... did not

specifically mention these factors in the context of reasons for

the sentences being imposed consecutively, the obvious inference

was that the court meant those factors to apply as reasons for the

sentences being imposed consecutively.” We agree.

Upon review of the record, we note that the aforementioned

oral statement by the district court constitutes the only evidence

of the district court’s consideration of this issue. Thus, we must

determine whether this sole statement by the district court evinces

due consideration to the § 3553(a) factors. We acknowledge that

the district court’s statement does not specifically mention §

3553(a), or the specific factors stated, therein; however, the

district court does state that it considered “the sentencing

objectives of punishment and deterrence.” Such a statement implies

a general consideration by the district court of several of the

factors embodied in 18 U.S.C. § 3553(a). While the district

court’s oral statement is not a model of detail and specificity, we

do not find it to be so lacking as to evince a disregard of the §

3553(a) factors, or to affect the lawfulness of this sentence.
12

Accordingly, we hold that the district court did not err in its

discretionary exercise of imposing consecutive sentences.

CONCLUSION

For the foregoing reasons, the order of the district court is

AFFIRMED.