1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-6-1997

United States v. Oser

Precedential or Non-Precedential:

Docket 95-1107,95-1108

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Recommended Citation

"United States v. Oser" (1997). 1997 Decisions. Paper 58.

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1

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 Nos. 95-1107 & 95-1108 

 

UNITED STATES OF AMERICA 

v. 

NEIL OSER, a/k/a "Lou" 

Neil Oser, 

 Appellant 

 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 92-cr-00424) 

 

Argued on Rehearing September 20, 1996 

Before a reconstituted panel of SLOVITER, Chief Judge, 

ROTH and ROSENN, Circuit Judges* 

 

(Filed March 6, 1997) 

Joshua Markowitz 

Howard A. Teichman (Argued) 

Markowitz & Zindler 

3131 Princeton Pike, Bldg. 3D 

Lawrenceville, NJ 08648 

 Attorneys for Appellant 

 

* The appeal was originally submitted pursuant to Third Circuit 

LAR 34.1(a) on May 21, 1996 before a panel consisting of Chief 

Judge Sloviter, Judges Sarokin and Rosenn. A judgment order was 

entered on July 8, 1996. Appellant filed a petition for 

rehearing which was granted by the panel and the panel was 

reconstituted after the retirement of Judge Sarokin. 
2

Seth Weber (Argued) 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, PA 19106 

 Attorney for Appellee 

 OPINION OF THE COURT

SLOVITER, Chief Judge. 

 Appellant Neil Oser was sentenced in the United States 

District Court for the Eastern District of Pennsylvania for his 

role in two drug conspiracies to which he pled guilty. He argues 

that the district court erred in ordering that the sentences 

imposed should run consecutively rather than concurrently and/or 

co-terminously with the term of imprisonment which he is serving 

for a currency reporting violation to which he pled guilty in the 

federal court in New York. He also argues that the district 

court erred in setting his criminal history level. 

I. 

 On June 19, 1991, United States Customs Agents at JFK 

Airport arrested Neil Oser before he boarded a flight bound for 

Lagos, Nigeria for understating on customs forms the amount of 

United States currency he was transporting. He had reported that 

he was carrying $65,000 in cash, when in fact he carried a total 

of $790,000. Oser pled guilty in the United States District 

Court for the Eastern District of New York to a charge of failing 

to accurately report the transport of cash abroad in violation of 

31 U.S.C. § 5316. That plea, a waiver of indictment, and a plea 

agreement were entered on November 26, 1991. Oser was released 
3

pending sentencing on condition and with notice that he would be 

subject to an additional sentence should he commit another 

offense while on pretrial release. On July 23, 1993, the 

district court in New York rejected Oser’s various requests for a 

downward departure and sentenced him to 28 months in prison. 

 In the interim, Oser was indicted on July 29, 1992, in 

the Eastern District of Pennsylvania and charged with conspiracy 

to import heroin into the United States in violation of 21 U.S.C. 

§ 963 and money laundering of $7,200 in postal money orders that 

were drug payments to his brother in violation of 18 U.S.C. § 

1956(a). The Pennsylvania indictment included as an overt act 

Oser's June 19, 1991 "attempt[] to smuggle" approximately 

$800,000 cash out of the United States from New York, although 

that paragraph made no reference to drugs or the subsequent 

heroin conspiracy described in the indictment. The substance of 

the Pennsylvania indictment and all of the remaining overt acts 

refer to transactions pertinent to a conspiracy to import heroin 

through March 1992. 

 On September 3, 1993, Oser was again indicted in the 

District of New Jersey and charged with conspiracy to import 

heroin into the United States in violation of 21 U.S.C. § 963 and 

possession of heroin with intent to distribute in violation of 21 

U.S.C. § 841(a)(1). The New Jersey indictment alleged that the 

criminal activity charged took place from July 1992 through 

February 1993, a period that included activity after Oser pled 

guilty to the false currency charge in New York. The government 

contends that although both the Pennsylvania and New Jersey 
4

indictments involve international heroin smuggling activities, 

they involved different participants and different time periods, 

a contention supported by the facts set forth in the pre-sentence 

report.1

 Oser pled guilty to the Pennsylvania conspiracy and 

money laundering charges on December 3, 1992. The New Jersey 

case was transferred to the Eastern District of Pennsylvania in 

May 1994 in order to consolidate for disposition. On June 13, 

1994, Oser also pled guilty to the New Jersey conspiracy charge. 

 On January 26, 1995, the district court sentenced Oser 

to a nine year term of imprisonment on the New Jersey charge, 

with an additional one year enhancement pursuant to 18 U.S.C. § 

3147 and U.S.S.G. § 2J1.7 because Oser committed the New Jersey 

offense while on pre-sentence release from the New York 

conviction. The district court imposed an identical sentence on 

the Pennsylvania conspiracy charge to run concurrently with the 

New Jersey sentence. On the Pennsylvania money laundering 

charge, the court sentenced Oser to five years, plus an 

additional one-year sentence for commission of the crime while on 

release, also to run concurrently with the other sentences. 

 

1 According to the pre-sentence report, the Pennsylvania 

conspiracy involved only Neil Oser and his brother, Marty Oser, 

in an agreement made in Philadelphia with several confidential 

informants to import two separate 1 kilogram shipments of heroin 

into the United States. The New Jersey conspiracy, by contrast, 

involved a much larger and more sophisticated network of couriers 

as well as co-conspirators, responsible for importing multikilogram shipments of heroine. The drug network, which may have 

been organized by Neil Oser, also allegedly engaged coconspirators in distributing the imported heroin to connections 

in Chicago. 
5

However, the district court ordered the New Jersey and 

Pennsylvania sentences to run consecutively to the 10 months 

remaining on Oser’s New York sentence. 

 Oser originally argued in his appellate brief that he 

was not put on adequate notice that committing a crime while on 

pre-sentence release could result in an increased sentence 

pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7. He withdrew 

that argument following a showing by the government that 

before Oser was released on the New York charges, he signed an 

Appearance Bond which stipulated the conditions of his release 

and expressly stated that “DEFENDANT ADVISED BY MAGISTRATE OF 

APPLICABLE PROVISIONS OF 18 U.S.C. § 3156/3147 IN WRITING.” 

Gov't App. at 1. That advice appeared on a separate page under 

the heading, “Advice of Penalties and Sanctions” that was also 

signed by Oser and that clearly warned Oser of the enhanced 

penalty he faced for committing a crime while on bond. Id. at 4. 

 On oral argument, Oser conceded that he did, in fact, receive 

sufficient notice that any offense committed while on bond would 

result in an enhanced sentence, and he no longer challenges the 

one year enhancement imposed by the district court. 

 Instead, Oser's argument now is limited to his 

contention that under U.S.S.G. § 5G1.3(b) and § 5G1.3(c) the 

district court here was required to impose the conspiracy 

sentences to be served concurrent to the New York currency 

charges, and that the district court erred in fixing his criminal 

history level. 
6

 We have jurisdiction over the appeal of this sentence 

pursuant to 28 U.S.C. § 1291. Our review of the construction of 

the Sentencing Guidelines is plenary. United States v. 

Holifield, 53 F.2d 11, 13 (3d Cir. 1995). 

II. 

 Section 5G1.3 of the Sentencing Guidelines is the 

provision designed to guide the district courts in determining 

whether a sentence on a defendant subject to an undischarged term 

of imprisonment is to run consecutively or concurrently. At the 

time of sentencing, that section, which has since been amended, 

provided: 

§5G1.3Imposition 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. § 561.3 (1994). 
7

 Both parties agree that § 5G1.3(a) is inapplicable 

here. The second offense (subject of the Pennsylvania 

indictment) was committed before Oser was sentenced on the first 

offense, the New York money reporting charge. The dispute 

instead turns first on the applicability of § 5G1.3(b). 

 U.S.S.G. § 5G1.3(b) requires a judge to impose a 

sentence to run concurrently to an undischarged term of 

imprisonment when the conduct that gave rise to the prior 

conviction has “been fully taken into account in the 

determination of the offense level for the instant offense.” 

U.S.S.G. § 5G1.3(b) (emphasis added). Earlier conduct has been 

“fully taken into account” where it has been used as a "§ 1B1.3 

(Relevant Conduct) factor in determining the offense level for 

the instant offense." U.S.S.G. § 5G1.3, comment. (n.2). Such a 

consideration may occur when the separate offenses are part of 

the “same criminal conduct,” or “part of the same course of 

conduct.” Id. 

 The district court determined that Oser’s base offense 

level was 34, which it calculated solely because the total 

quantity of heroin involved in the two conspiracies to import 

heroin from Nigeria was more than 3 but lower than 10 kilograms. 

 App. at 61. It then imposed a three level enhancement pursuant 

to § 2J1.7 because the offense was committed while Oser was on 

pre-sentence release from the New York offense.2 Id. It is 

 

2 U.S.S.G. § 2J1.7 provides: 

If an enhancement under 18 U.S.C. § 3147 applies, 

add 3 levels to the offense level 

for the offense committed while on 
8

important to note that this enhancement applies irrespective of 

any relationship vel non between the New York offense and the 

Pennsylvania or New Jersey conspiracies. Thus Oser would have 

been subject to this enhancement even if the New York offense for 

which he was released had been a sex crime rather than a currency 

offense. Nothing in the district court's imposition of sentence 

suggests that the fact that Oser had been discovered 

underreporting the amount of currency he was carrying as he left 

the country was viewed by the district court in Pennsylvania as 

relevant conduct in determining Oser's offense level. 

 The district court acted on the basis of the presentence report and its rulings on objections thereto by the 

parties. That report carefully listed all the "related cases," 

and included the charges against Martin Oser (in the Pennsylvania 

(..continued) 

release as if this section were a 

specific offense characteristic 

contained in the offense guideline 

for the offense committed on 

release. 

18 U.S.C. § 3147 states: 

[A] person convicted of an offense committed while 

released under this chapter shall 

be sentenced, in addition to the 

sentence prescribed for the offense 

to -- 

 (1) a term of imprisonment of not more 

than ten years if the offense is a 

felony; or 

 (2) a term of imprisonment of not more 

than one year if the offense is a 

misdemeanor. 

A term of imprisonment imposed under this section 

shall be consecutive to any other 

sentence of imprisonment. 
9

case), and those against Robert Gist and Femi Ojo (in the New 

Jersey case). Similarly, the "offense conduct" detailed in the 

pre-sentence report covers only the conspiracies in the 

Pennsylvania and New Jersey cases. The references to the New 

York criminal charge are limited to the fact of its filing and 

the fact that Oser was on release when he committed the offenses 

covered in the New Jersey indictment. We see no basis to 

conclude that Oser's conduct that was the basis of his New York 

currency crime, i.e. underreporting of the amount of funds being 

carried out of the country, played any part in the determination 

of the offense level for his conspiracy sentence. 

 Oser claims that § 5G1.3(b) applies to him because the 

government named his New York underreporting conviction as an 

overt act in the Pennsylvania conspiracy indictment, thereby 

establishing that the two crimes were “part of the same course of 

conduct.” While that contention seems plausible on its face, it 

does not withstand close scrutiny. 

 The Commentary to the guideline gives as an 

illustration of the applicability of § 5G1.3(b) the situation 

where a defendant has been convicted in federal court for sale of 

30 grams of cocaine following an earlier state court conviction 

for cocaine sales of 15 grams. The two offenses are to be 

treated as part of the same course of conduct if that defendant 

would be deemed responsible for the sale of a total of 45 grams 

of cocaine as relevant conduct resulting in an offense level of 

14. The Commentary states that because the offense level in the 

federal case was calculated based on the quantity of drugs in 
10

both charges, under § 5G1.3(b) the court should impose the 

federal sentence to run concurrently with the state sentence. It 

explains: "Because the defendant has already served six months on 

the related state charge, a sentence of seven months, imposed to 

run concurrently with the remainder of the defendant's state 

sentence, achieves this result." U.S.S.G. § 5G1.3(b), comment. 

(n.2). 

 The district court in Oser's case calculated the amount 

of heroin from both the Pennsylvania and New Jersey conspiracies 

in setting the relevant conduct as involving from 3 to 10 

kilograms. At sentencing the court stated that 

 we will confine ourselves to what was 

agreed as the basis for the plea of 

guilty in New Jersey, which would 

be a quantity between 3 and 10, and 

to which one would add the .446 of 

a kilogram from Philadelphia . . . 

. that is the figure which I will 

use as the drug quantity in 

calculating the offense level. We 

are proceeding, of course, with 

these charges grouped and that 

explains the linking of the New 

Jersey and Pennsylvania charges. 

Transcript of Sentencing, January 26, 1995 at 17. Applying the 

illustration from the Commentary, this means the court had fully 

taken into account the New Jersey conduct in setting the offense 

level for the Pennsylvania offense. 

 Oser relies on the fact that the government included as 

an overt act in the Pennsylvania indictment the following 

reference to the New York conduct: 

 On or about June 19, 1991, defendant 

NEIL OSER attempted to smuggle 

approximately $800,000 cash out of 

the United States at John F. 
11

Kennedy International Airport in 

New York with a final destination 

of Lagos, Nigeria. 

Except for this single sentence, there is no subsequent reference 

or tie-up to Oser's New York conduct occurring in June 1991. 

Instead, the Pennsylvania indictment is confined to two 

transactions involving importation of heroin from Nigeria, which 

began with a telephone conversation between a confidential 

informant and Neil Oser's brother Marty in October 1991 (almost 

four months after the New York arrest) to set up a meeting to 

discuss arrangements for importation of heroin from Nigeria, via 

pick up at the airport in Amsterdam, effected early November 

1991, and arrangements for a second shipment again through 

Amsterdam. The indictment alleged participation by two 

confidential informants, one or more Drug Enforcement 

Administration agents, and Neil Oser, who in the course of the 

conspiracy cashed $7,200 of postal money orders given to his 

brother as part payment for one of the deliveries. The last 

overt act alleged was a meeting between Neil Oser, his brother 

and DEA agents on March 31, 1992 to discuss additional 

importation of heroin. The mere reference to the New York 

conduct as an overt act, nowhere else explained, cannot be used 

to evidence that the underreporting of currency in New York was 

part of the same course of conduct charged in the Pennsylvania 

indictment. 

 Nor is there any suggestion that the underreporting was 

part of the conduct alleged in New Jersey, which alleged a 

conspiracy between Neil Oser and Robert Gist to import 
12

multikilograms of heroin from Nigeria from about July 1992 until 

February 1993 and which, as further detailed in the pre-sentence 

report, involved smuggling heroin into the United States through 

the lining of suit jackets, via a sophisticated network of 

couriers. 

 The charge filed in New York is independent of that in 

either indictment. The New York waiver of indictment merely 

provided that Neil Oser "is accused of knowingly and willfully 

failing to file a report as defined in Title 31, United States 

Code, Section 5316(b) when knowingly transporting and being about 

to transport monetary instruments of more than $10,000 at one 

time, to wit, approximately $790,000 in United States currency, 

from a place in the United States to a place outside the United 

States." 

 Although Oser's counsel argued before us that the New 

York conduct is part of the same course of conduct as alleged in 

the other indictments, there is nothing in the New York charges 

that refers to drugs or any drug conspiracy. Oser offers nothing 

on the record to show a connection. Indeed, if Oser had not 

already pled guilty to underreporting the currency carried in New 

York, the government would have been free to prosecute him for it 

after it secured a conviction on the Pennsylvania drug 

conspiracy, regardless of its inclusion as an overt act. See

Garrett v. United States, 471 U.S. 773, 787 (1985) (separate 

offenses may be prosecuted separately without offending double 

jeopardy, even if one is a predicate act for another); United 

States v. Pungitore, 910 F.2d 1084, 1111 (3d Cir. 1990), cert. 
13

denied, 500 U.S. 915 (1991). Therefore, mere inclusion of a 

prior offense as an overt act in a conspiracy is not sufficient 

to constitute relevant conduct under § 1B1.1, and it was not 

taken into account by the district court in setting Oser's 

offense level. 

 Oser chose to pursue two courses of criminal conduct 

separately recognized by Congress: failure to file a truthful 

currency report in violation of 31 U.S.C. §§ 5316 and 

conspiracies to import heroin into the United States in violation 

of 21 U.S.C. § 963. A concurrent sentence is not compelled by § 

5G1.3(b) in this situation. 

 In light of the dissent's criticism of the government's 

actions, we note that the government could not have filed all the 

charges together in one proceeding. By the time the government 

had a basis to indict Oser for the conspiracy to import heroin 

that was the subject of the Pennsylvania indictment, which was 

returned on July 29, 1992, Oser had already waived indictment and 

entered into a guilty plea on his June 19, 1991 conduct leading 

to the currency charge in New York. On that charge, he waived 

indictment, pled guilty and entered into a plea agreement on 

November 26, 1991. There is nothing in the record to compare 

this case with United States v. McCormick, 58 F.3d 874, 878 (2d 

Cir. 1995), where it appeared that the government deliberately 

seized upon a "perverse incentive" to try related crimes in 

separate jurisdictions. 

 Furthermore, the consolidation of the Pennsylvania 

charges and the New Jersey charges do not support the dissent's 
14

suggestion that the underlying charges in all three cases were 

part of the same course of conduct. The consolidation was 

directed for disposition only after Oser pled guilty in 

Pennsylvania. The government has consistently argued that the 

New Jersey and Pennsylvania conspiracies were separate. 

Nonetheless, once Oser also pled guilty in the New Jersey case, 

the district court did give Oser the benefit of concurrent 

sentences for the Pennsylvania and New Jersey crimes. 

 Inasmuch as we conclude that subsection (b) does not 

apply to Oser's case, it follows that subsection (c) is the 

relevant guideline provision for determining whether his sentence 

should be imposed concurrently or consecutively to the remainder 

of his 28 month New York sentence. Under subsection (c), 

characterized as a "policy statement," the sentence for the 

offenses at issue, here the Pennsylvania and New Jersey 

conspiracies to import heroin, was to 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(c) (1994). 

 Application Note 3 sets out a methodology "to assist the court 

in determining the appropriate sentence." U.S.S.G. § 3G1.3, 

comment. (n.3). At the time of Oser's sentencing that Note 

provided, in part, 

To the extent practicable, the court should consider a 

reasonable incremental penalty to be a 

sentence for the instant offense that results 

in a combined sentence of imprisonment that 

approximates the total punishment that would 

have been imposed under § 5G1.2 (Sentencing 

on Multiple Counts of Conviction) had all of 

the offenses been federal offenses for which 
15

sentences were being imposed at the same 

time. Id. 3

 According to Oser, the district judge did not apply the 

appropriate methodology in sentencing him consecutively, and 

failed to state any reasons for avoiding the methodology as is 

required by United States v. Holifield, 53 F.3d 11, 17 (3d Cir. 

1995). We disagree. 

 The methodology outlined by the Application Note merely 

suggests that a judge first approximate the “total sentence” for 

a defendant as if the defendant were being sentenced for all his 

offenses at the same time; this “total sentence” then provides 

the judge with the maximum and minimum range for sentencing the 

defendant on the instant offense. See U.S.S.G. § 5G1.3, comment. 

(n.3); United States v. Spiers, 82 F.3d 1274, 1278 (3d Cir. 

1996). As long as a consecutively imposed sentence falls within 

this maximum and minimum range, a judge has imposed a “reasonable 

incremental punishment” as described by the § 5G1.3(c). U.S.S.G. 

§ 561.3, comment. (n.3). Beyond that limitation, the court 

 

3 U.S.S.G. § 5G1.3(c) was amended effective November 1, 1995, 

and now provides the district court with even more discretion to 

fashion a sentence for a defendant subject to an undischarged 

term of imprisonment. It states: 

(Policy Statement) In any other case, 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. 

U.S.S.G. § 5G1.3(c) (1995). The application note to this section 

was changed to correspond to the amendment. See U.S.S.G. § 

5G1.3(b), comment. (n.3) (1995). 
16

retains broad discretion to choose the length and sequence of 

punishment. 

 The Commentary continues: “Generally, the court may 

achieve an appropriate sentence through its determination of an 

appropriate point within the applicable guideline range for the 

instant federal offense, combined with its determination of 

whether that sentence will run concurrently or consecutively to 

the undischarged term of imprisonment.” Id. 

 The district court manifestly considered the guideline 

methodology in sentencing Oser for his part in the heroin 

importation conspiracies. The court determined on the record 

that a base offense level of 34 based on the quantity of heroin, 

with Oser's criminal history category II, produced an applicable 

guideline range of 168-210 months for the New Jersey offense, 

which the court deemed to be the appropriate total sentence for 

both the conspiracy offenses. The district judge stated that he 

was departing from the guideline range in Oser’s case because of 

the government’s submission of a § 5K1.1 letter. Transcript of 

Sentencing, January 26, 1995 at 62. The district court 

ultimately sentenced Oser to 9 years imprisonment to run 

consecutively to the ten month undischarged term of imprisonment 

remaining for his New York offense, for a total of 118 months, a 

term well below the guideline range. The court then imposed an 

additional one year term of imprisonment pursuant to U.S.S.G. § 

2J1.7, making Oser’s total sentence 130 months. 

 Though the district court did not expressly announce to 

Oser that its calculations were made following the guideline 
17

methodology, the guidelines nowhere require such formality. We 

have said that a court is free to abandon the penalty prescribed 

by the guideline's methodology as long as the court “indicates 

its reasons for imposing the penalty in such a way as to allow us 

to see that it has considered the methodology.” Spiers, 82 F.3d 

at 1275. 

 The court clearly explained why it was not imposing the 

conspiracy sentences to run concurrently with the 10 months 

remaining on the New York sentence. It first stated: 

 I do not think we are in the double 

jeopardy area as a constitutional 

matter, nor do I think I have 

authority to conclude, while it's 

just not good policy and, 

therefore, I won't do it, I think 

that Congress has been directive. 

It says there shall be an 

enhancement when you commit a crime 

when you're on release and I don't 

think I can avoid the impact of 

that unless I'm to conclude that 

the statute as applied here would 

be unconstitutional; it would be 

imposing a double punishment. And 

I don't think it is. 

Transcript of Sentencing, January 26, 1995 at 20. 

 Later, in sentencing, the district court stated as 

follows: 

I have concluded . . . in constructing the sentence that I 

will not follow the recommendation of the 

defense that I make this sentence concurrent 

with the sentence which Mr. Oser is now 

serving in New York. 

 . . . I think it would not be harmonious 

with the proposition that an 

enhancement is to be made of the 

sentence to be imposed today for 

the reason that Mr. Oser went out 

while on release from the New York 

charges and engaged in independent 

criminal activity 
18

 . . . to then make today’s sentence 

concurrent with the New York 

sentence. [It] would not be 

harmonious with that enhancement. 

Id. at 62-63. The district court's explanation that a concurrent 

sentence would run against the policy of Congress and the 

Sentencing Guidelines in requiring that the sentence be enhanced 

if the crime was committed while on release elsewhere was a 

satisfactory basis for the use of a methodology different from 

that suggested by the Application Note. We therefore reject 

Oser's claim of error in sentencing him to a term of imprisonment 

consecutive to that which he was serving in the New York charge. 

III.

 Oser's final claim is that the district court erred in 

placing him in Criminal History Category II. Under U.S.S.G. § 

4A1.1, the district court is to "[a]dd 3 points for each prior 

sentence of imprisonment exceeding one year and one month" 

(emphasis added). Oser contends that the error was counting his 

New York conviction as a “prior sentence.” Repeating his earlier 

analysis, Oser argues that criminal history points should not 

have been assigned for the New York crime since that offense 

should be regarded as “part of the instant offense” under 

U.S.S.G. § 4A1.2(a)(1), and part of a “common scheme or plan” 

under United States v. Hallman, 23 F.3d 821, 825 (3d Cir.), cert. 

denied, 115 S.Ct. 216 (1994). 

 Oser did not raise this objection at his sentencing 

hearing, and agreed to a Criminal History Category II at that 

time. Thus we review the court’s determination only for plain 
19

error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 

725, 735-37, 113 S.Ct. 1770, 1778-78 (1993) (“plain error” must 

be particularly egregious and seriously affect the fairness, 

integrity or public reputation of judicial proceedings). 

 Under Application Note 1 to § 4A1.2(a), “prior 

sentence” means a sentence “imposed prior to sentencing on the 

instant offense, other than a sentence for conduct that is part 

of the instant offense.” “Conduct that is part of the instant 

offense,” in turn means, “conduct that is relevant conduct to the 

instant offense under the provisions of § 1B1.3 (Relevant 

Conduct).” U.S.S.G. § 4A1.2(a)(2), comment. (n.1) (1994). As 

explained above, Oser’s currency underreporting offense played no 

part in the determination of his base offense level for the 

sentence on the heroin conspiracies offense; thus, the conduct 

for which he was previously sentenced was not the type of 

“Relevant Conduct” that would preclude a separate computation of 

criminal history points under § 4A1.2(a)(2). 

 Contrary to Oser’s suggestion, our decision in Hallman, 

23 F.3d at 825, does not require a contrary holding. In Hallman, 

where the defendant was indicted in federal court for the offense 

of stealing mail in the form of blank checks, we concluded that 

the conduct underlying the defendant's state conviction for 

forgery was part of the same scheme and conduct as the federal 

offense and therefore could not count as a "prior sentence" under 

U.S.S.G. § 4A1.2(a)(1). See id. at 826. In that case, the two 

crimes were necessarily related; one would not attempt to steal 

blank checks without intending ultimately to commit forgery. 
20

 Here, there is nothing to show a relationship between 

the offense of underreporting the currency carried and the drug 

conspiracy offenses. Indeed, the New Jersey indictment to which 

Oser pled guilty alleged an agreement and acts that began after 

Oser’s arrest for underreporting the currency charges. 

Therefore, the district judge did not plainly err in assessing 

Oser criminal history points for his New York offense pursuant to 

§ 4A1.1(a). 

IV.

 For the reasons set forth above, we will affirm the 

district court's judgment of conviction and sentence. 

 
21

United States v. Neil Oser

No. 95-1107/1108 

ROSENN, J., dissenting. 

 I believe that the appellant's indictment and 

conviction in the United States District Court for the Eastern 

District of New York on the charge of failing to report the 

transportation of cash abroad was part and parcel of the larger 

conspiracy for which he was indicted and sentenced in the Eastern 

District of Pennsylvania (for importing heroin into the United 

States and money laundering), as well as the conspiracy for which 

he was indicted in the District of New Jersey. Thus, the 

sentences for the Pennsylvania and New Jersey offenses should 

have been imposed under U.S.S.G. § 5G1.3(b) concurrently to the 

undischarged term of imprisonment that he was then serving under 

the New York indictment and sentence. I, therefore, respectfully 

dissent. 

I. 
22

 The two conspiracies in Pennsylvania and New Jersey 

involved the alleged importation of heroin from Nigeria. (Maj. 

op. at 6) The arrest in New York at the JFK Airport on June 19, 

1991 was for failure to report $790,000 in cash that he was 

carrying as he was about to board a flight for Lagos, Nigeria. 

Oser pled guilty to the charges in New York on November 26, 1991, 

and the court released him on bail pending the sentence which it 

imposed on July 16, 1993. The district court imposed sentence on 

Oser for the Pennsylvania and New Jersey offenses while he was 

serving time for the New York offense for failure to report the 

currency he was carrying. At the time of the Pennsylvania 

sentences, Oser had served 18 months of his 28 month New York 

sentence. The district court determined that his ten-year 

sentence on the Pennsylvania and New Jersey offenses should run 

consecutively to this sentence. Thus, Oser's time on this 

sentence would not even begin to run until he had served ten more 

months in prison. Oser argues now, as he did at sentencing, that 

this determination fails to consider the applicable U.S.S.G. 

guideline provision, § 5G1.3(b). 

 This Guideline provision assists the courts in 

sentencing a defendant who is subject to an undischarged term of 

imprisonment. There are three subparts which limit the court's 

discretion. Part (a) is applicable only when the instant offense 

was committed either while the defendant was serving a sentence, 

or after sentencing but before imprisonment, and mandates a 

consecutive sentence. The parties agree that this subpart is 

inapplicable, as Oser's subsequent offenses occurred between the 
23

time of his guilty plea and his sentencing. Part (b) applies 

only if the undischarged term of imprisonment resulted from 

offenses that were fully taken into account in the determination 

of the offense level for the present offense, and mandates that 

the prison terms run concurrently. It provides that if 

subsection (a) does not apply and "the undischarged term of 

imprisonment resulting from offenses that have been fully taken 

into account in the determination of the offense level for the 

instant offenses the sentence for the instant offenses shall be 

imposed to run concurrently to the undischarged term of 

imprisonment." Part (c), called the policy statement, applies in 

all other cases, and permits the court to impose a consecutive, 

partially consecutive, or concurrent sentence as desired in order 

to achieve a reasonable incremental punishment for the instant 

offense. 

 I believe that the record establishes that Oser's New 

York conduct was taken into account. Under a reading of 

Application note 2 to § 5G1.3, subsection (b) could include 

federal charges in other jurisdictions for the same criminal 

conduct, or for different criminal charges that were part of the 

same course of conduct. Here, the charges in all three states 

stem from one ongoing course of criminal conduct concerning a 

large-scale conspiracy to import heroin. 

 The Government argues that the Pennsylvania and New 

Jersey indictments, although they involve a continuation of 

Oser's drug smuggling activities, cover different time periods 

and different co-conspirators. Therefore, the Government claims, 
24

they are different courses of conduct. This, it seems, is 

contradicted by their consolidation and by the concurrent 

sentences imposed for the Pennsylvania and New Jersey charges. 

 More importantly, the conduct for which Oser was 

sentenced in New York, failure to file a currency report, is 

cited as an overt act of the conspiracy charged in Pennsylvania. 

 The Government has thus acknowledged that the act is part of the 

same course of conduct. Because it has used this act to charge 

Oser with conspiracy, it is estopped from arguing on appeal that 

the act is wholly irrelevant to the conspiracies charges to which 

he pled guilty. The Government has, in effect, recognized that 

the New York offense is part of the same course of conduct as the 

present crime, by including it as an overt act of the conspiracy 

described in the present indictment. This is supported by the 

response of Seth Weber, Assistant United States Attorney, who at 

sentencing of Oser in New York City made this statement: 

"And when you talk about these criminal charges 

being an aberration for Mr. Oser we 

may be missing the boat here 

because we're dealing with criminal 

conduct that spanned two years, 

from 1991 through 1993, that we 

know of. 1991 when he attempted to 

take $800,000 in cash out of the 

country without reporting it 

knowing that it was a result of 

drug proceeds. That's what started 

this ball rolling for Mr. Oser." 

Therefore, subsection (b) of § 5G1.3 applies. 

 The point I make is not only of importance to Oser but 

to the federal criminal justice system generally. It is not 

unusual for some prosecutors to split up a single conspiracy and 
25

attempt to charge several discrete conspiracies, with indictments 

in different jurisdictions, and thereby obtain multiple 

sentences. In United States v. McCormick, 58 F.3d 874 (2d Cir. 

1995), the defendant was sentenced in two district courts in the 

Second Circuit for separate frauds against two separate banks, 

each part of an ongoing fraud conspiracy. The court considering 

the second indictment dismissed 31 of the 41 counts, in 

recognition of possible double jeopardy issues, but permitted 

prosecution of the other ten counts. It then sentenced the 

defendant to serve his sentence consecutive to the preceding 

sentence.4 Although the Second Circuit affirmed this decision, 

it noted: 

[T]his result unfairly punishes McCormick for 

events to a real extent outside his 

control, namely, his prosecution in 

two separate fora for a single 

pattern of fraudulent activity. It 

is acknowledged by the Government 

that if McCormick had been subject 

to a single prosecution for his 

crimes, he would have received, at 

most, a single 46-month term of 

imprisonment. That he is now 

subject to an additional, 

consecutive 35-month term creates a 

perverse incentive for prosecutors. 

 In order to maximize the sentences 

received by defendants, prosecutors 

can, where possible, try defendants 

in multiple jurisdictions for 

different but related crimes. As 

mentioned above, we are bound by 

the Guidelines and the law of this 

circuit to reach the result in this 

case. In our view, however, this 

problem deserves a renewed, close 

 

4The district court in that case specifically noted the existence 

of U.S.S.G. § 5G1.3, and determined that this was a suitable 

incremental punishment. 
26

examination by the Sentencing 

Commission. 

McCormick, at 878. 

The effect of the prosecutions in the three jurisdictions in the 

instant case is to maximize Oser's sentence for what is, in 

effect, the same course of conduct. This is impermissible under 

the Guidelines, and unreasonable. 

 Prosecutors have a great deal of discretion in the way 

they choose to frame charges against a defendant. In this case, 

rather than limit themselves to Oser's substantive offenses, the 

prosecutors set out to charge him with conspiracy, and cited his 

substantive offenses as overt acts in furtherance of that 

conspiracy. This is well within prosecutorial discretion. 

However, having chosen to frame their charges in such a fashion, 

they are also bound by its limitations. Oser's failure to file a 

currency report is either a substantive offense in New York, or 

an overt act in furtherance of the Pennsylvania conspiracy. 

However, it borders on double jeopardy to permit prosecutors to 

have it both ways, and for the court to sentence Oser twice for 

conduct essentially part of the conspiracy for which he is being 

separately sentenced. The gravamen of Oser's concern is not that 

he was indicted in three jurisdictions, but having been indicted 

in New York for conduct that was in furtherance of the overall 

conspiracy, the ultimate sentence imposed in Pennsylvania should 

have been concurrent to the sentence remaining to be served under 

the New York indictment, and not consecutive. 
27

 Therefore, when a defendant is convicted of conspiracy 

in one jurisdiction and the evidence includes criminal conduct 

for which he has been previously prosecuted and convicted in 

another federal jurisdiction, or he has been previously 

prosecuted and convicted for different criminal charges that were 

part of the same conspiratorial course of conduct, the sentence 

imposed in the later conviction must be concurrent with the first 

sentence. 

 The district court in Pennsylvania, therefore, should 

have applied U.S.S.G. § 5G1.3(b) in sentencing Oser and have the 

sentence it imposed run concurrently with the portion of the New 

York sentence which had not yet been served. 

 Accordingly, I respectfully dissent.