* Un ited States District Judge of the Eastern District of

Louisiana, sitting by designation.

** Pursu ant to the 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that this opinion should not be published and is not precedent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. United States Court of Appeals

Fifth Circuit



## FILED

October 27, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-41590

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROCKY MARCIANO ESQUIVEL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-02-CR-130-1

Before GARWOOD and JONES, Circuit Judges, and ZAINEY, * District

Judge .

PER CURIAM: **

Rocky Marciano Esquivel (“Esquivel”) appeals the sentencing2

following his guilty plea conviction for escape. Esquivel argues

that the district court erred when it concluded that it lacked

authority to order that his sentence run concurrently with a notyet-imposed state sentence following revocation of probation.

T he district court’s decision not to order a consecutive or

concurrent sentence is reviewed for an abuse of discretion, s ee

United States v. Richardson

, 87 F.3d 706, 710 (5th Cir. 1996), and

whether the district court properly applied the sentencing

guidelines is review de novo

. I d

. In U nited States v. Brown

, 920

F.2d 1212, 1216 (5th Cir. 1991), we held that: “Whether a sentence

imposed should run consecutively or concurrently is c ommitted to

the sound discretion of the district cour t, subject to

consideration of the factors set forth in 18 U.S.C. § 3553(a).”

The Government does not dispu te that the district court had

the authority to order appellant’s sentence to run concurrently

with the not then imposed state sentence fo r revocation of

probation. See, e.g., Brown at 1217; United States v. Hernandez

,

234 F.3d 252, 256 (5th Cir. 2000); United States v. Butler

, No. 98-

30255 (5th Cir. Feb. 4, 1999) (unpublished). The Government

argues, however, that the district court was made aware of its

authority in this respect by appellant’s postsentencing motion and

denied that motion in the proper exercise of its discretion.

Because the district court denied Esquivel’s postsentencing

motion without explanation, its rationa le for the denial is1 At the sentencing hearing, defense counsel requested that the

court make its sentence concurrent with any sentence to be imposed

on the then pending state revocation of probation. The court

responded “I can’t do that. I can’t prospectively do that. I’d

like to because this looks like a mess. And I’d like to give him

lower than eighteen months [the bottom of the guideline range]

actually . . . .” The court then invited defense counsel to file

something “if in th e next ten days you can find out what’s going

on” and “[s]ee what’s happening with the State stuff.” Defense

counsel did so, filing a motion requesting that his federal

sentence be made concurrent with his prospective s tate sentence.

The first part of this motion advised t hat the state had not yet

revoked his probation. The final part of the motion cited B rown

and Hernandez as authority to make the federal sentence concurrent

to the anticipated state sentence. The motion recites that the

Governme nt opposed it, but does not indicate on what basis(no

opposition was filed). So far as the record reflects, the

Government did not otherwise ever take a po sition on appellant’s

request, nor did the probation department. We have been informed

by the Government tha t on or about November 22, 2002, while this

appeal was pending, appellant’s state probation was revoked and he

was sentenced to a period of confinement from which he was released

to federal custody (to begin serving his instant federal sentence)

on or about February 24, 2003.

3 impossible to determine. 1 In light of the ambiguity, we remand the

case for reconsideration of the sentence. S ee United States v.

Garcia-Ortiz

, 310 F.3d 792, 795-96 (5th Cir. 2002); Butler ; United

States v. Stone

, No. 02-51221 (5th Cir. Aug. 8, 2002)

(unpublished). The only issue on remand is whether the district

court recognized that it had the discretion to impose the current

sentence, but refused to do so. If the district court was aware of

its discretion but determined that a consecutive sentence was

appropriate, then the original sentence should stand. However, if

the district court believed that it lacked the authority to impose

a concurrent sentence, Esquivel should be r esentenced with the4

district court’s fu ll awareness of its discretionary authority

(which the Government does not dispute the district court would

have on remand as here ordered). We take no position on what

d ecision the district court should make in respect to exercis ing

its said discretionary authority.

REMANDED FOR RECONSIDERATION OF SENTENCE.