IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 No. 93-9065

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLEMENTE TORREZ,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Northern District of Texas

(December 1, 1994)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The sole issue before the court on this appeal is whether

the district court committed plain error by failing to consider

whether, under Section 5G1.3 of the United States Sentencing

Guidelines (U.S.S.G.), Torrez' sentence for the instant offense

should be served concurrent to an undischarged state sentence. 

We find no plain error, and therefore AFFIRM.

I. FACTS

Clemente Torrez and seven others were named in a thirtyeight count indictment for conspiring to make false claims
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against the government. The indictment charged Torrez with one

count of conspiring to defraud the Internal Revenue Service (IRS)

by filing fraudulent claims for income tax refunds in violation

of 18 U.S.C. § 286, and nine additional counts of making false

claims against the government in violation of 18 U.S.C. §§ 2 and

287.

At the time of his arraignment in federal court, Torrez was

serving an undischarged term of imprisonment in the custody of

the Texas Department of Corrections. In 1991, Torrez was

convicted in two cases of possession of large quantities of

marihuana for which he received concurrent probated sentences of

ten years. On May 24, 1993, Torrez's probation was revoked and

the ten year sentences were reduced to concurrent sentences of

six years. In addition, Torrez was convicted of driving while

intoxicated and indecency with a child for which he received two

more concurrent six-year sentences. Torrez appeared in federal

court on a writ of habeas corpus issued by the U.S. District

Court for the Northern District of Texas. During the pendency of

the federal proceedings, Torrez was in the custody of the U.S.

Marshal.

Pursuant to a plea agreement with the Government, Torrez

entered a guilty plea to the conspiracy count and the Government

dismissed the remaining charges. The district court sentenced

Torrez to 60 months in prison. The court also sentenced Torrez

to three years of supervised release, ordered Torrez to make
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restitution in the amount of $10,000, and imposed a $50 special

assessment.

The defendant, through counsel, submitted objections to the

application of certain provisions of the sentencing guidelines as

proposed by the presentence investigation report (PSR). However,

the defendant did not object to the district court's failure to

consider whether the sentence it imposed would be served

concurrent with or consecutive to the undischarged term of

imprisonment. There was no suggestion in the PSR and no argument

at sentencing that the sentence should be imposed concurrently

under Section 5G1.3. Thus, the judgment entered by the district

court did not address this aspect of the sentence imposed. Under

these circumstances, the sentence is deemed to be imposed

consecutively to the state sentences. See 18 U.S.C. § 3184. 

Torrez timely filed a notice of appeal.

II. DISCUSSION

Torrez contends that the district court erred by failing to

consider whether his federal sentence should have been imposed

consecutively, or concurrently, to an undischarged term of

imprisonment he received in state court when his parole was

revoked. Torrez did not object to the district court's failure

to apply § 5G1.3, either in the Presentence Report (PSR) or at

sentencing. Parties are required to challenge errors in the

district court. When a defendant in a criminal case has

forfeited an error by failing to object, this Court will remedy
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the error only in the most exceptional case. United States v.

Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). The Supreme Court

has directed the courts of appeal to determine whether a case is

exceptional by using a two-part analysis. United States v.

Olano, ___ U.S. ___, 113 S. Ct. 1770, 1777-79, 123 L. Ed. 2d 508

(1993).

 First, an appellant who raises an issue for the first time

on appeal has the burden to show that there is actually an error,

that it is plain ("clear" or "obvious"), and that it affects

substantial rights. Olano, 113 S. Ct. at 1777-78; Rodriguez, 15

F.3d at 414-15; FED. R. CRIM. P. 52(b). This Court lacks the

authority to relieve an appellant of this burden. Olano, 113 S.

Ct. at 1781.

 Second, the Supreme Court has directed that, even when the

appellant carries his burden, "Rule 52(b) is permissive, not

mandatory. "If the forfeited error is `plain' and `affect[s]

substantial rights,' the Court of Appeals has authority to order

correction, but is not required to do so." Olano, 113 S. Ct. at

1778 (quoting FED. R. CRIM. P. 52(b)). As the Court stated in

Olano: 

the standard that should guide the exercise of [this]

remedial discretion under Rule 52(b) was articulated in

United States v. Atkinson, [297 U.S. 157] (1936). The

Court of Appeals should correct a plain forfeited error

affecting substantial rights if the error "seriously

affect[s] the fairness, integrity or public reputation

of judicial proceedings."

Olano, 113 S. Ct. at 1779 (quoting Atkinson, 297 U.S. at 160). 
 1. Subsection (a) applies where the defendant committed

the instant offense while serving an undischarged term of

imprisonment and subsection (b) applies where the conduct

resulting in the undischarged term of imprisonment has been taken

into account under the relevant conduct provision in determining

the offense level for the instant offense. Neither applied in

the present case.

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Guideline section 5G1.3(c) provides that, in any case other

than those covered under subsections (a) and (b),1 "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(c) (policy statement).

The commentary to section 5G1.3, application note 3,

provides guidance for the district court in applying subsection

(c):

In some circumstances, such incremental punishment can be

achieved by the imposition of a sentence that is concurrent

with the remainder of the unexpired term of imprisonment. 

In such cases, a consecutive sentence is not required. 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 sentences were being imposed at the same

time.

The record does not reflect that the district court considered

this provision or the methodology suggested by the commentary,

and Torrez argues that the district court's failure to address

the appropriate considerations constitutes plain error under the

standard enunciated by this Court in Rodriguez.
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The district court's failure to consider or apply § 5G1.3

was an error under the Olano standard. As defined in Olano: 

"[D]eviation from a legal rule is `error' unless the rule has

been waived." Olano, 113 S. Ct. at 1777. In United States v.

Miller, 903 F.2d 341, 347 (5th Cir. 1990), this Court held that

18 U.S.C. § 3584(a) requires the district court to consider the

guidelines when determining whether to impose consecutive or

concurrent sentences. See also United States v. Parks, 924 F.2d

68, 72 (5th Cir. 1991) ("Congress, however, does require that

district courts consider the Guidelines and policy statements

issued by the Sentencing Commission when considering whether

Guideline sentences should run concurrently or consecutively.").

Therefore, the district court's failure to consider the

guideline rules regarding concurrent and consecutive sentences

was an error. The error was also clear and obvious: Torrez'

state convictions and sentences were part of the record and the

PSR, clearly raising questions concerning the imposition of

concurrent or consecutive sentences.

"Normally, although perhaps not in every case, the defendant

must make a specific showing of prejudice to satisfy the

`affecting substantial rights' prong of Rule 52(b)." Olano, 113

S. Ct. at 1778. The defendant attempts to show prejudice in this

case by computing the "approximate total punishment" he would

have received had all his offenses been federal offenses for

which he was sentenced at the same time, as described in the

commentary to section 5G1.3.
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However, the defendant's argument is not persuasive. 

Section 5G1.3 (c) expressly contemplates the imposition of

consecutive sentences: "the sentence for the instant offense

shall be imposed to run consecutively . . . to the extent

necessary to achieve a reasonable incremental punishment for the

instant offense. This language clearly allows the district court

the discretion to determine the "incremental punishment"

appropriate.

In addition, the methodology proposed by note 3 is

permissive only. The specific formula cited by the defendant is

conspicuously preceded by the language "[t]o the extent

practicable, the court should consider . . . ." This language

denotes merely one possible manner of determining the appropriate

incremental penalty. Thus, even if the district court had

considered this provision, it would have been free to decline to

follow the suggested methodology. See United States v. Redman,

35 F.3d 437 (9th Cir. 1994). In other words, the district court

would not have violated this provision if it had considered it

and then determined that imposing the sentence consecutively

provided the appropriate incremental punishment.

It is also worth noting that imposing a consecutive sentence

under section 5G1.3(c) in the present case would have been

consistent with the policy expressed in section 7B1.3, which

applies when a defendant's term of federal probation or

supervised release is revoked. See United States v. Glasener,
 2. The government points to application note 4 under

section 5G1.3, which mandates a consecutive sentence in cases

where, as here, "the defendant was on federal or state probation,

parole, or supervised release at the time of the instant offense,

and has had such probation, parole, or supervised release

revoked." U.S.S.G. § 5G1.3, app. note 4.

We cannot accept the government's contention that this

provision requires that the instant sentence be imposed

consecutively. Although the facts of the instant case fit

precisely into the scenario contemplated by application note 4,

Torrez was sentenced on October 29, 1993. Thus, the November

1992 edition of the guidelines was in effect at the time. See

United States v. Gonzales, 988 F.2d 16, 18 (5th Cir.), cert.

denied, 114 S. Ct. 170 (1993); see also U.S.S.G. § 1B1.11(a). 

Application note 4 was added to the guidelines effective November

1, 1993, and therefore could not have been applied at the time

Torrez was sentenced.

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981 F.2d 973 (8th Cir. 1992). Subsection (f) of that policy

statement provides that

[a]ny term of imprisonment imposed upon the revocation of

probation or supervised release shall be ordered to be

served consecutively to any sentence of imprisonment that

the defendant is serving, whether or not the sentence of

imprisonment being served resulted from the conduct that is

the basis of the revocation of probation or supervised

release.

Although section 7B1.3 is not applicable, it illustrates that the

imposition of a consecutive sentence under 5G1.3 would have been

entirely appropriate in the present case.2

Considering that the defendant's multiple state sentences

were all imposed to run concurrently, and that the calculation

called for under application note 3 would result in no

significant "incremental penalty" for the defendant, we think it

entirely likely that the district court would impose consecutive

sentences expressly upon remand. Under these circumstances, we

hold that the defendant has not made a sufficient showing of

prejudice. Since we find that the defendant has not met this
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burden, we do not address whether the error in the present case

is the type that seriously affects the "fairness, integrity or

public reputation of judicial proceedings."

III. CONCLUSION

For the reasons stated above, the sentence imposed by the

district court is AFFIRMED.