* Judge, U.S. Court of International Trade, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-51150

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

GILBERT GARCIA, JR.,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

February 20, 2003

Before WIENER and STEWART, Circuit Judges, and RESTANI, Judge. *

CARL E. STEWART, Circuit Judge:

This is an appeal from sentencing in a criminal case. T he issue raised on appeal is whether

U.S.S.G. § 5G1.2(d) requires that the district court impose consecutive sentences on each count of

conviction to achieve the “total punishment” prescribed by the Guidelines. For the following reasons,

we hold that § 5G1.2(d) requires that the district court impose consecutive sentences to equal the

“total punishment” prescribed by the Guidelines when t he maximum sentence required by the1 § 2D1.1.(b)(6) states:

If the defendant meets the criteria set forth in subdivisions (1)-(5) of subsection (a)

of §5G1.2 (Limitation on Applicabilit y of Statutory Minimum Sentences in Certain

Cases), decrease by 2 levels.

2 § 5G1.1.(b) states:

Where a statutorily required minimum sentence is greater than the maximum of the

applicable guideline range, the statutorily authorized maximum sentence shall be the

guideline sentence.

2 substantive criminal statute falls short of the minimum sentence required by the applicable Sentencing

Guideline Range. Accordingly, we vacate and remand.

FACTS AND PROCEDURAL HISTORY

Gilbert Garcia, Jr., (“Garcia”) was convicted by a jury of one count of conspiracy to possess

with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one), and two

counts of aiding and abetting the possession of marijuana with intent to distribute in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (counts three and six). Garcia’s offenses involved more than

1,000, but less than 3,000, kilograms of marijuana. Garcia was assigned a base offense level of 32 in

accordance with the Sentencing Guidelines. See U.S.S.G. § 2D1.1(c)(4) (relating to drug offenses).

The presentence report (“PSR”) recommended that Garcia receive a two-level downward adjustment

in his offense level because he met the requirements of § 2D1.1(b)(6). 1 Garcia’s total offense level of

30, combined with his criminal history category of I, resulted in a Guidelines sentencing range of 97

to 121 months imprisonment. U.S.S.G., Chap. 5, Sentencing Table. The statutory minimum sentence

for the felonies of which Garcia was convicted is ten years imprisonment and five years of supervised

release, while the statutory maximum is life in prison. See § 841(b)(1)(A). If the Guidelines sentencing

range falls below a mandatory minimum set by the substantive criminal statute, the statutorily

prescribed minimum sentence generally bec om es the appropriate Guidelines sentence. S ee § 5G1.1(b). 23

Nonetheless, the PSR recommended that the district court impose a sentence in accordance with the

applicable Guidelines because Garcia qualified under the “safety valve” provisions of § 5C1.2 to be

sentenced without regard to the statutory minimum sentence.

At sentencing, the district court agreed that Garcia qualified under the “safety valve” provisions

of § 5C1.2. and sentenced him to 97 months imprisonment, followed by five yea rs of supervised

release for each of the counts of which he was convicted, to run concurrently. Although vari ous

members of Garcia’s family testified at the sentencing hearing regarding Garcia’s high moral character,

the district court “[found] no legal grounds for departure from the sentence that [was] called for by

the guidelines.”

On appeal, this Court affirmed Garcia’s convictions, but vacated his sentence because “[u]nder

Apprendi , ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and prove d beyond a

reasonable doubt.’” United States v. Garcia

, 242 F.3d 593, 599 (5th Cir. 2001) (quoting Apprendi v.

New Jersey , 530 U.S. 466, 490 (2000)). For a drug conviction involving more than 1000 kilograms

of marijuana, § 841 (b)(1)(A) requires a statuto ry minimum sentence of 10 years followed by a

minimum t erm o f supervised release of five years. As a result, this Court held that the jury did no t

determine the quantity of drugs involved in Garcia’s case, and therefore, § 841(b)(1)(D), “the default

sentencing provision for a marijuana convi ct io n,” rather than § 841(b)(1)(A), was the applicable

penalty provision under A pprendi

. Id

. Noting that the statutory maximum sentence under

§ 841(b)(1)(D) is 60 months in prison followed by three years of supervised release, this Court vacated

Garcia’s sentence and remanded the matter for resentencing. Id. at 600.3 It appears that the PSR was not revised to refle ct a new o ffense level and criminal history

category in light of Garcia

, 242 F.3d 593 (5th Cir. 2001). Nonetheless, the parties did not dispute this

fact in their briefs or raise it as an issue on appeal.

4 Upon remand, Garcia’s offense level and criminal history category remained the same; that is,

his offense level was 30 and his criminal history category w as I. This co mbination again yielded a

Guidelines sentencing range of 97 to 121 months of imprisonment. See U.S.S.G., Chap. 5, Sentencing

Table. 3 The district c o urt noted that there was a “60-month cap on each count.” Garcia objected,

arguing that this Cour t ’s decision vacating his sentence mandated that his total sentence equal 60

months of imprisonment. The Government countered that because the statutory maximum on any one

co unt was 60 months and thus less than the Guidelines range of 97 months, the district co urt was

obligated to sentence Garcia to 60 months on count one and to a consecutive 37-month sentence on

counts three and six under § 5G1.2(d).

The district court, however, decided that the issue “[came] down to whether the Court wishes

to give a concurrent or consecutive sentence.” Accordingly, the district court sentenced Garcia to 60

months on each count, to run concurrently. The district court stated:

I th i nk I could have, Mr. Garcia, given you the original sentence by

r unning this consecutive, but I am going to give you the benefit of a

doubt and I am going to go ahead and give you 60 months on each

count to run concurrent, which reduces it substantially, but I hope you

have learned from this and this will be the last time you are in court.

The Government now appeals.

DISCUSSION

This Court reviews the district court’s application of the Sentencing Guidelines de novo

.

United States v. Moore

, 997 F.2d 30, 34 (5th Cir. 1993 ). Section 5G1.2(d) of the Sentenci ng

Guidelines states:4 Garcia also asserts that the Government is precluded from raising this issue by the law-of-the-case

doctrine. This assertion is without merit because this Court did not address whether the district court

could impose consecutive or concurrent sentences. Furthermore, the issue presented by this appeal

“arises out of the correcti on of the sentence ordered by this court,” and therefore, is properly before

this Court on appeal. See United States v. Marmolejo , 139 F.3d 528, 531 (5th Cir. 1998).

5 If the sentence imposed o n t he count carrying the highest statutory

maximum is less than the total punishment, then the sentence imposed

on one or more of the other counts shall run consecutively

, but only to

the extent necessary to produce a combined sentence equal to the total

punishme nt . In all other respects, sentences on all counts shall run

concurrently, except to the extent otherwise required by law.

§ 5G1.2.(d) (emphasis added). The total punishment is “calculated from the Guidel ines Sentencing

Table b y co rrelating the appropriate criminal history category ... with the defendant’s combined

offence level.” United States v. Martinez

, 274 F.3d 897, 904 (5th Cir. 2001) (internal quotati ons and

citations omitted). The total punishment for Garcia’s convictions requires a minimum of 97 months

of impris o nment , yet t he statutory maximum term of imprisonment for counts one and three is 60

months each.

The Government argues that the district court erred because a 60-month senten ce does not

comport with the Guidelines and would “basically be a downward departure.” Garcia counters that

the district court had discretion to impose concurrent sentences under U nited States v. VasquezZamora

, 253 F.3d 211 (5th Cir. 2001). 4 In Vasquez-Zamora , t he defendant pleaded guilty to

possession with intent to distribute marijuana (count one) and to conspiracy to possesses with intent

to distribute marijuana (count two). 253 F.3d at 213. The district court sentenced the defendant to 65

months as to each count, to run concurrently, and five years of supervised release. Id

. at 213-14. This

Court affirmed the conviction but vacated the sentence under Apprendi

. This Court further found that

the defendant’s sentence could not exceed 60 months on each count and that the di stri ct court had6

discretion to impose consecutive or concurrent sentences under § 841(b)(1)(D). I d. at 213. The

Government argued that in the alternative, the 65-months prison term was harmless error because the

district court could have imposed consecutive terms consistent with § 5G1.2(d). Id. at 214. This Court

rejected the Government’s argument, concluding that:

While the district court could have imposed consecutive prison terms

for each count of the indictment, it found concurrent terms of sixt y-five

months incarceration for both counts appropriate punishment for

Vasquez. Because the district court has discretion under the applicable

statutes and sentencing guidelines to fashion a p enalty that combines

terms of imprisonmen t with periods of supervised release, we vacate

Vasquez’s prison term and remand it for resentencing with his term of

supervised release.

Id

. This Court preserved the district court’s discretion to dec ide whether to i m pose concurrent or

consecutive sentences so long as the st at ut o ry maximum does not conflict with the minimum total

punishment required by the Guidelines. This Court has yet to address whether § 5G1.2(d) requires the

district court to impose consecutive sentences when the statutory maximum does not reach the

minimum punishment required by the Guidelines.

The Guidelines are clear, however, that where the statutory maximum is less than the minimum

total punishment required by the Guidelines, the district court shall impose consecutive sentences to

the extent necessary to meet the minimum total punishment. We are bound by the holding in United

States v. Martinez

, 950 F.2d 222, 225 (5th Ci r. 1991). In M artinez

, the district court imposed

consecutive sentences under § 5G1.2(d) because the max imum statutory sentence was below the

minimum Guidelines sentence. The defendant appealed, arguing that, the district court was unaware

that it had discretion under 18 U.S.C. § 3584, to impose concurrent sentences. 950 F.2d at 225-26;

see § 3584 (providing t hat “[m]ultiple terms of imprisonment imposed at the same time run7

concurrently unless the court orders or the statute mandates that the terms are to run consecutively”).

This Court acknowledged “t he apparent conflict between the seemingly mandatory language of

§ 5G1.2(d) and the discretion permitted by § 3584.” See id. at 226. This Court resolved the conflict

and held “that sentencing courts retain at least some discretion under § 3584 to impose a concurrent

sentence, but that discretion is limit ed to the district court’s power to depart from the Guidelines.” See

id

. This Court concluded that the district court’s imposition of consecutive sentences under § 5G1.2(d)

was proper and that the district court had “recognized its power to impose concurrent sentences by

departing from the guidelines.” Id. at 2 26 (internal quotations and citations omitted). In short, the

district court can exercise its discretion so long as it does not conflict with § 5G1.2(d). In the instant

case, the district court ’s decisio n to impose concurrent sentences of 60 months conflicts with the

minimum sent ence required under the Guidelines (97 months) and therefore, is prohibited by

§ 5G1.2(d).

The sentence imposed on count one is less than the t o t al punishment required by the

Guidelines. In order to comply with the plain language of the statute, the district court should have

imposed a maximum of 60 months imprisonment for count one and a consecutive sentence for counts

three and six to equal a total punishment of at least 97 months. See § 5G1.2(d); see also United States

v. Cathey

, 259 F.3d 365, 367 (5th Cir. 2001) (explaining the district court applied a conse cutive

sentence consistent with § 5G1.2(d) because it “dictates consecutive sentences when the individual

sentences are less than the total punishment prescribed by the Guidelines.”).

Conclusion

Given the mandatory language in U.S.S.G. § 5G1.2(d) and this Court’s decision in Martinez

,

950 F.2d 222 (5th Cir. 1991) the district court was required to impose consecutive sentences because5 The district court orally sentenced Garcia to three years of supervised release. The written

judgment, however, provides for five years of supervised release. “In this Circuit, it is well settled law

that where there is any variation between the oral and written pronouncements of sentence, the oral

sentence prevails.” United States v. Martinez

, 250 F.3d 941, 942 (5th Cir. 2001) (citing United States

v. Shaw , 920 F.2d 1225, 1231 (5th Cir. 1991))

8 the highest statutory maximum for each conviction was 60 months imprisonment, which was less than

the minimum sentence of 97 months under the Guidelines. Additionally, the district court must correct

the written judgment for five years supervised release to reflect the oral judgment sentencing Garcia

to three years of supervised release. 5 Accordingly, we VACATE Garcia’s sentence and REMAND for

resentencing consistent with this opinion.