UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 91-7364

United States of America,

Plaintiff-Appellee,

VERSUS

Ellis Jake Gross,

Defendant-Appellant.

Appeals from the United States District Court

For the Northern District of Texas

(December 9, 1992)

Before BROWN, GARWOOD, and DeMOSS, Circuit Judges.

DeMoss, Circuit Judge:

The defendant pled guilty to bank robbery and making a false

statement to a firearm dealer. The district court sentenced the

defendant to 84 and 60 months respectively for the bank robbery and

the false statement, and ordered those sentences to run

concurrently for a total sentence of 84 months. The USDC, however,

ordered the sentences in the present case to run consecutively to

a prior undischarged 110-month sentence. Because we hold that the

court committed pla in error in running the current sentences

consecutively to the prior sentence, we vacate these sentences and

remand for resentencing.1 Federal Bureau of Investigation.

2 The USDC also sentenced Gross to 3 years of supervised

release.

2

I. FACTS and PROCEDURAL HISTORY

Jake Ellis Gross (Gross) committed two crimes in Fort Worth,

Texas. On February 18, 1988 Gross made a false statement to a

licensed firearm dealer and on October 30, 1989 he robbed the Blue

Bonnet Savings Bank. A few days later, Gross traveled to Chicago

where he robbed the Century State Bank. The FBI 1 arrested him that

same day. Gross pled guilty to the Chicago bank robbery in the

United States District Court for the Northern District of Illinois

on July , 30, 1990 and the court gave him a 110-month sentence.

Immediately after tha t, Gross began serving his sentence at the

United States Penitentiary in Leavenworth, Kansas.

On August 8, 1991, the government filed a writ of habeas

corpus ad prosequendum requesting that Gr oss be brought from the

penitentiary in Leavenworth to stand trial in the United States

District Court for the Northern District of Texas (USDC) for the

two crimes that he had committed in Fort Worth. Gross was brought

to Texas where he pled guilty both to bank robbery in violation of

18 U.S.C. § 2113(a) and to making a false statement to a licensed

firearm dealer in violation of 18 U.S.C. § 922(a)(6). On November

15, 1991, the USDC gave Gross a sentence of 84 months for the bank

robbery and a concurrent sentence of 60 months for making the false

statement to a firearm dealer for an effective sentence of 84

months. 2 The USDC, however, ordered the sentences in the present3 This left Gross with an overall total sentence of 194

months (110 months for the Chicago bank robbery + 84 months for the

two Fort Worth crimes).

4 Then, § 5G1.3 stated:

[i]f the instant offense was committed while the

defendant was serving a term of imprisonment (including

work release, furlough, or escape status), the sentence

for the instant offense shall be imposed to run consecutively to the unexpired term of imprisonment.

3 case to run consecutively to the 110-month sentence that Gross was

serving for the Chicago bank robbery. 3 Gross appeals the USDC's

decision to run consecutively his sentences in the present case to

his unexpired 110-month sentence.

II. DISCUSSION

1. Application of § 5G1.3 of the Guidelines

Gross contends that the USDC erred in applying an outdated

version of the guidelines and consequently ordering his sentences

to run consecutively. In sentencing Gross, the USDC applied §

5G1.3 of the guidelines; but did not notice that this guideline had

in fact been amended to be effective fifteen days before the USDC

sentenced Gross. As amended § 5G1.3(b) stated:

if the prior undischarged term of imprisonment resulted

from a federal offense and was imposed pursuant to the

Sentencing Reform Act, the sentence for the instant

offense shall be imposed to result in a combined sentence

equal to the total punishment tha t would have been

imposed under § 5G1.2 (Sentencing on Multiple Counts of

Conviction) had all the sentences been imposed a t the

same time.

Guidelines, § 5G1.3(b) (November 1, 1991).

Before its amendment, however, § 5G1.3 did not address whether

defendants in a case, such as the present case, were to have their

sentences run concurrently or consecutively. 4 The commentary to §Guidelines, § 5G1.3 (November 1, 1990).

5 18 U.S.C. § 3553(a)(4) states:

(a) [t]he court, in determining the particular

sentence to be imposed, shall consider. . .

(4) t he kinds of sentence and the sentencing

range established for the applicable category

of offense committed by the applicable

category of defendant as s e t forth in the

guidelines

. . . that are in effect on the

date the defendant is sentenced;

(5) any pertinent policy statement issued by

the Sentencing Commis s ion.

. . that is in

effect on the date the defendant is sentenced.

4 5G1.3, however, stated that the USDC had the discretion to order a

defendant's sentences in a case such as the present case to run

concurrently or consecutively. The commentary to § 5G1.3 stated:

[w]here the defendant is serving an unexpired

term of imprisonment, but did not commit the

instant offense while serving that term of

imprisonment, the sentence for the instant

offense may be imposed to run consecutively or

concurrently with the unexpired term of

imprisonment.

Commentary to Guidelines, § 5G1.3 (November 1, 1990).

Gross contends, and rightly so, that this court must apply the

version of the guidelines effective at the time of sentencing. S ee

18 U.S.C. § 3553(a)(4) 5 ; United States v. Brown, 920 F.2d 1212,

1216 (5th Cir.), c ert. denied, U.S. , 111 S.Ct. 2034, 114

L.Ed.2d 119 (1991) ("Baring any ex post facto concerns, a district

court must consider only the guidelines and policy statements that

are in effect on the date the defendant is senten ced, not on the

date the crime was committed."). Gross was sentenced November 15,

1991 and therefore the USDC should have applied to Gross the6 We find and the government concedes that Gross fit within

the criteria of § 5G1.3(b)--(1) he was serving a prior undischarged

term of imprisonment imposed under the guidelines for the federal

offense of bank robbery, and (2) § 5G1.3(a) did not apply because

he committed the present offense (i) before he was sentenced and

(ii) before he began serving his sentence for the Chicago bank

robbery.

5 version of § 5G1.3 effective November 1, 1991. As noted, that

version of § 5G1.3 required that the court sentence Gross so that

his sentence would "result in a combined sentence equal to the

total punishment that would have been imposed under § 5G1.2 . . .

had all t he sentences been imposed at the same time." 6 The USDC

did not sentence Gross in that way, but instead erroneously applied

an outdated version of § 5G1.3 in ordering Gross's sentences to run

consecutively.

A. Applicability of 18 U.S.C. § 3584(a)

The government contends that the USDC sentenced Gross properly

because no matter the requirements of § 5G1.3, 18 U.S.C. § 3584(a)

gave the USDC the discretion to order Gross's sentences to run

consecutively. 18 U.S.C. § 3584(a) states that "[i]f multiple

terms of imprisonment are imposed on a defendant at the same time,

or if a term of imprisonment is imposed on a defendant who is

already subject to an undischarged term of imprisonment, the terms

may run consecutively or con currently. . . ." According to the

government, 18 U.S.C. § 3584(a) gave the USDC the discretion to

order Gross's sentences to run consecutively, and the requirements

of § 5G1.3 of the guidelines could not impede that discretion.

In United States v. Miller, 903 F.2d 341 (5th Cir. 1990), this

court addressed the apparent tension between § 5G1.3 and 18 U.S.C.6

§ 3584(a), although under a different version of the guid elines.

In Miller, the defendant, who had previously been convicted and was

then serving a sentence for bank robbery in Arizona, pled guilty in

Texas to six additional bank robberies. At sentencing, the court

ordered the defendant's sentence for the six bank robberies to run

consecutively to his undischarged sentence fo r the prior Arizona

bank robbery. On appeal, the defendant contended that the court

erred in ordering his sentences to run consecutively because §

5G1.3's apparent obligation on the court to impose consecutive

sentences could not be valid considering the discretion to impose

consecutive or concurrent sentences vested in t he court by 18

U.S.C. § 3584(a). Then, the effective version of § 5G1.3 stated:

[i]f at the time of sentencing, the defendant

is already serving one or more unexpired

sentences, then the sentences for the instant

offense(s) shall run consecutively to such

unexpired sentences, unless one or more of the

instant offense(s) arose out of the same

transactions or occurrences as the unexpired

sentences.

This court rejected the defendant's contention, hol ding that §

5G1. 3 was a proper restraint on the discretion in 18 U.S.C. §

3584(a) because under § 5G1.3 the court retained some discretion in

its power to depart from the guidelines.

This court's holding in Miller applies with equal force to

the present case. In the present case, just as in M iller, the USDC

had the discretion to depart from the guidelines with the only

distinction being that in Miller the issue was the ability of the

USDC to depart downward, whereas in the present case the issue is

the ability of the USDC to depart upward. For our purposes that7 Gross concedes that he did not object to his sentence,

however, he points out that he submitted to the USDC a memorandum

in aid of sentencing that asserted that his sentences should run

concurrently.

7 distinction is not meaningful and therefore we hold that the grant

of discretion in 18 U.S.C. § 3584(a), as applied to the

requirements of the effective version of § 5G1.3, can only be

exercised through the vehicle of depa rture from the guidelines.

Put another way, § 5G1.3( b)'s requirement that Gross's sentence

"shall be imposed to result in a combined sentence equal to the

total punishment that would have been imposed

. . . had all the

sentences been imposed at the same time" was curtailed only by the

discretion of the USDC to depa rt from the guidelines. In the

present case, both parties agree and it is evident from the record

that the USDC did not depart upward from the guidelines, and thus

the USDC erred in ordering Gross's sentences to run consecutively.

B. Plain Error

Even if the USDC erred in applying an outdated version of the

guidelines, the government contends that this cou rt should not

vacate the sentence and remand for sentencing because Gross did not

object to the presentence report or the USDC's order at the

sentencing hearing that his sentences run consecutively. 7 If a

defendant fails to object to his sentence, this court will reverse

his sentence only upon a finding of plain error. U nited States v.

Ebertowski, 896 F.2d 906 (5th Cir. 1990). "To constitute plain

error, the error must have been so fundamental as to have resulted

in a miscarriage of justice." Ebertowski, at 907 (quoting United8 Gross contends that if the USDC had sentenced him according

to the 1991 version of § 5G1.3(b), and consequently under § 5G1.2

(Sentencing on Multiple Counts of Conviction), he would have had an offense level of 27 with a criminal history category of V and

received a sentence of 120-150 months. That figure is based on an

offense lev el of 25 contained in the presentence report prepared

for the Chicago bank robbery plus a two level increase pursuant to

§ 3D1.4.

8 States v. Yamin, 868 F.2d 130, 132 (5th Cir.), cert. deni ed, 492

U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). This court cannot

review issues raised for the first time on appeal unless they

involve purely legal questions and our failure to c onsider them

would result in manifest injustice. U nited States v. Gar ciaPillado, 898 F.2d 36, 39 (5th Cir. 1990).

As demanding as the burden required of Gross under the plain

error standard is, we are convinced that the USDC's error in

incorrectly applying the guidelines was suffici ent to meet that

standard. In sentencing Gross, the USDC applied an outdated

version of th e guidelines that resulted in Gross receiving a

substantially longer sentence than he would have if the USDC had

used the vers ion of the guidelines then applicable. 8 Application

of the guidelines by the USDC is a question of law and undoubtedly,

in the present case, the mistake of law committed by the USDC in

applying an outdated version of the guidelines resulted in manifest

injustice. Therefore, we reject the government's contention that

we should not vacate Gross's sentence and remand for resentencing

because we hold that the USDC committed plain error in ordering

Gross's sentences to run consecutively.9 We realize that the commentary to the 1992 version §

5G1.3(c) states "[t]o the extent practica ble, 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." It is possible therefore that on

remand Gross would receive the same sentence whether the 1991 or the 1992 version of § 5G1.3 were applied. However, because there

is also a possibility that Gross could receive an increase in his

sentence as a result of applying the 1992 version, we order the

USDC to resentence Gross in accordance with the 1991 version of §

5G1.3.

9 Additionally, we acknowledge that § 5G1.3 has been again

amended to be effective on November 1, 1992 so that when Gross is

resentenced the 1992 version of § 5G1.3 will be in effect. In the

1992 version of § 5G1.3, subsection (b) has been deleted.

Subsection (c), however, has not been changed and states that "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." Subsection (c) of the 1992 version would

control Gross's resentencing on remand; but the application thereof

could result in an increase in Gross's sentence. 9 Gross should not

be prejudiced by the USDC's error in incorrectly applying the then

applicable guidelines at sentencing . Because Gross's sentence

could be increased under the amended version of § 5G1.3, we

instruct the USDC on remand to resentence Gross under the 1991

version of § 5G1.3.10 c:br:opin:91-7364:mm III. CONCLUSION

For the reasons stated above, the sentence of the USDC is

V ACATED and the case is REMANDED with orders for the USDC to

resentence the defendant according to the 1991 version of § 5G1.3

of the guidelines.