FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 11, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 02-10535 

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D. C. Docket No. 01-00469-CR-UUB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JOSE ANGEL MORALES-CASTILLO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 11, 2002)

Before EDMONDSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE*,

Judge.

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*Honorable Donald C. Pogue, Judge of the United States Court of International Trade, sitting by

designation.
1

Section 2L1.2(b)(1)(A) of the Sentencing Guidelines provides that “[i]f the defendant

previously was deported . . . after----(A) a conviction for a felony that is . . . (ii) a crime of

violence . . . increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1)(A).

2

POGUE, Judge:

Defendant-Appellant Jose Angel Morales-Castillo (“Morales-Castillo”)

appeals the district court’s order imposing a seventy-one (71) month sentence for

illegal re-entry after deportation to run consecutively to a nine (9) year Florida

state sentence for violation of probation. Morales-Castillo contends that the

district court failed to apply United States Sentencing Guidelines § 5G1.3(b)

(2002) (“U.S.S.G.”), which instead calls for the imposition of a concurrent

sentence. Because the base offense level was increased by sixteen (16) as a result

of his prior aggravated felony conviction pursuant to U.S.S.G. § 2L1.2(b)(1)(A),1

Morales-Castillo argues that his undischarged state sentence was fully taken into

account in the determination of the offense level for the instant offense. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 (2000) and 18 U.S.C. § 3742.

This Court reviews the district court’s factual findings for clear error and its

application of the Sentencing Guidelines to those facts de novo. United States v.

Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002) (citing United States v.

McClendon, 195 F.3d 598, 600 (11th Cir. 1999)). 

I.
3

In 1997, Morales-Castillo was convicted in Florida state court of an

aggravated felony and sentenced to ten (10) years probation and forty (40) days in

state prison. He subsequently was deported by the Immigration and Naturalization

Service on June 17, 1998. 

On July 7, 2000, Morales-Castillo was found in the United States without

permission from the Attorney General. As a result, his state probation was revoked

on February 16, 2001, and Defendant was sentenced to a nine (9) year term of

imprisonment. Thereafter, a federal grand jury returned a one-count indictment

charging Morales-Castillo with illegal re-entry into the United States in violation

of 8 U.S.C. § 1326(a), (b)(2). In accordance with a written plea agreement,

Morales-Castillo pled guilty to the illegal re-entry offense.

The probation office completed a Pre-Sentence Investigation Report (“PSI”),

assigning a base level of eight (8) pursuant to § 2L1.2(a) of the Sentencing

Guidelines. Because Morales-Castillo was deported after conviction for a felony

that is considered a crime of violence, the probation officer increased MoralesCastillo’s base offense level by sixteen (16) pursuant to § 2L1.2(b)(1)(A) of the

Guidelines. Morales-Castillo received a three-level reduction for timely

recognition and affirmative acceptance of responsibility, setting the guideline

imprisonment range at fifty-seven (57) to seventy-one (71) months. Because
4

Morales-Castillo was serving a term for violation of probation at the time of the

instant offense, the probation officer further recommended the sentence should be

imposed to run consecutively to Morales-Castillo’s undischarged term of

imprisonment pursuant to §5G1.3, Comment, n.6.

Morales-Castillo objected to the PSI’s consecutive sentence

recommendation, arguing that his undischarged state sentence was fully taken into

account in the determination of the offense level for the instant offense. The

district court overruled Morales-Castillo’s objection and sentenced him to seventyone (71) months of imprisonment, to be served consecutively to the state court

sentence, and three years of supervised release. 

II.

The imposition of a sentence on a defendant who was convicted of a crime

while serving an undischarged term of imprisonment for a prior conviction is

governed by U.S.S.G. § 5G1.3. At the time of Morales-Castillo’s sentence, that

section read as follows:

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.
5

(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 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. 

Our decision in the instant appeal is guided by the Fifth Circuit’s reasoning

in United States v. Reyes-Lugo, 238 F.3d 305, 308 (5th Cir. 2001). As in ReyesLugo, Morales-Castillo’s undischarged term of imprisonment resulted from his

violation of state probation. The sixteen-level increase, however, was applied

under U.S.S.G. § 2L1.2(b)(1)(A) because Morales-Castillo illegally re-entered the

United States after having been deported following his conviction for an

aggravated felony. The district court’s application of the adjustment under

U.S.S.G. § 5G1.3(b) was not dependent upon the revocation of the state probation,

as the adjustment would have applied under U.S.S.G. § 2L1.2(b)(1)(A) whether or

not Florida chose to revoke Morales-Castillo’s probation. Therefore, the

undischarged state imprisonment term was not fully taken into account in the

determination of the offense level for the illegal re-entry after deportation offense. 
6

Accordingly, section 5G1.3(b) does not apply in this instance. 

Rather, Morales-Castillo’s sentence was properly determined under section

5G1.3(c) and Application Note 6 of the Sentencing Guidelines. Application Note

6 states that:

[i]f 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, the sentence for the

instant offense should be imposed to run consecutively to the term

imposed for the violation of probation, parole, or supervised release

in order to provide an incremental penalty for the violation of

probation, parole, or supervised release. 

U.S.S.G. § 5G1.3, cmt. n.6. Because Morales-Castillo’s state probation had been

revoked, under section 5G1.3(c) and Application Note 6, the district court

properly ordered that the sentence for the illegal re-entry offense run

consecutively to the state sentence for violation of probation. See also United

States v. Flowers, 13 F.3d 395, 397 (11th Cir. 1994) (“The intended purpose of

section 5G1.3(b) is to effectively ‘credit [] for guidelines purposes’ defendants

who have already served time—generally in another jurisdiction—for the same

conduct or course of conduct.”) (quoting U.S.S.G. § 5G1.3(b) cmt. n.2). 

Morales-Castillo argues in the alternative that the district court erred when
2

We note a circuit split on the issue of whether Application Note 6 imposes a mandatory

obligation on the district courts. Compare United States v. Goldman, 228 F.3d 942, 944 (8th Cir.

2000) (holding that Application Note 6 imposes a mandatory obligation on the district courts),

cert. denied, 531 U.S. 1175, 121 S. Ct. 1149, 148 L. Ed. 2d 1011 (2001); United States v.

Alexander, 100 F.3d 24, 26-27 (5th Cir. 1996), cert denied, 520 U.S. 1128, 117 S. Ct. 1273, 137

L. Ed. 2d 350 (1997) (same); United States v. Gondek, 65 F.3d 1, 2-3 (1st Cir. 1995) (same);

United States v. Bernard, 48 F.3d 427, 431-32 (9th Cir. 1995) (same); with United States v.

Swan, 275 F.3d 272, 279-80 (3d Cir. 2002) (holding that Application Note 6 is not mandatory);

United States v. Tisdale, 248 F.3d 964, 977-80 (10th Cir. 2001) (same); United States v. Maria,

186 F.3d 65, 70-73 (2d Cir. 1999) (same). As the district court imposed a consecutive sentence,

we do not need to reach this issue in the present case.

7

it failed to exercise its discretion under Note 6 and impose a concurrent sentence.2

This Court, however, is not persuaded by Morales-Castillo’s argument because

there is no evidence in the record that the district court believed it was required to

impose a consecutive sentence. Rather, the district court chose to impose a

consecutive sentence because “Morales-Castillo’s criminal history reflects that he

needs to just remain incarcerated for as long as the law will permit.” Sentencing

Hrg. at 6. 

After reviewing the parties’ briefs and the record, and upon considering the

arguments of counsel, we find that the district court properly imposed a

consecutive sentence for the instant offense. Therefore, the district court’s order

is

AFFIRMED.