USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1229
UNITED STATES,
Appellee,
v.
KEITH JAMES PARKINSON,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Cyr and Stahl, Circuit Judges,
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and Zobel,* District Judge.
______________
_____________________
Christopher W. Dilworth, by
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Appointment of the

Court, for

appellant.
Michael M. DuBose, Assistant United States Attorney, with
__________________
whom Jay P. McCloskey, United States Attorney, Paula D. Silsby,
_________________
________________
Assistant United States Attorney, and Margaret D. McGaughey,
______________________
Assistant United States Attorney, were on brief for appellee.

____________________
December 29, 1994
____________________
____________________
*

Of the District of Massachusetts, sitting by designation.

ZOBEL,
ZOBEL,
appeals

District Judge.
District Judge
______________

his sentence.

bank in Portland, Maine, in

2113(a) (1991).

term of imprisonment of
remainder

of

Massachusetts
Massachusetts.

again

violation of

He subsequently was sentenced

240 months, to run consecutively

ten-to-twenty

state court for the

On

Parkinson once

After a one-day jury trial, defendant was

convicted of robbing a
18 U.S.C.

Keith

appeal,

year

sentence

robbery of a

we affirmed

vacated the sentence because the

the

to a

to the

imposed

by

bank in Boston,
conviction,

but

district court had not followed

the

directive

Guidelines

of

5G1.3(c)

("U.S.S.G."

or

of

30, 1993).

served concurrently
At the

time

of the

federal sentence.

the district

with the

court again

defendant had

sentence, by

already served,

it

United States
_____________

*6 (1st Cir.

remainder of his

resentencing

argues that the

state time

when

Mar.

sentenced

of incarceration of 240 months, now

forty-six or forty-eight months of that

He now

Sentencing

Guidelines")

1993 WL 89801, at

After remand,

defendant to a period

United States

"Sentencing

imposed an entirely consecutive

v. Parkinson, No. 91-2233,
_________

the

to be

state sentence.1
served

either

Massachusetts sentence.2
not taking account

represents an upward

of the

departure from

the applicable guideline range of 210 to 262 months, which on the

____________________

1 At resentencing, the court, without dissent from either party,

applied the 1993 Sentencing Guidelines. We do likewise.

2
Defendant had served forty-eight months from the date of his
arrest on the state charge and forty-six months from the date of
sentencing on that offense.
-2-

facts of this case, he says, was improper.3

The
Defendant,

parties

ignoring

disagree
the

as

first

to the

part of

issues

the

on

appeal.

district

judge's

exegesis, presumes that the judge departed upwardly, and suggests

that the issue before us is whether such departure was justified.

The government presents a more complete, and in our view correct,

statement

of the issues; namely, is time served in state custody

before the

imposition of

calculus under

the federal sentence

included in

5G1.3(c) when deciding whether

outside the applicable guideline

upward departure

in the

the sentence is

range; and, only if so,

instant case

appropriate.

was an

Because we

answer the former inquiry in the negative, we need not reach

latter.

the

the

Nonetheless, a review of the record shows that an upward

departure would be appropriate.

Standard of Review
__________________
We

consider

de novo
__ ____

the legal

meaning and

scope of

5G1.3(c) (Imposition of a Sentence on a Defendant Subject to an

Undischarged

Term

of

Thompson, 32
________

F.3d 1, 4

fact-finding,

however,

Imprisonment).
(1st Cir.
we

review

deference given its application of

See
___

1994).

United States
______________

The

for clear

v.

district court's
error,

with

due

5G1.3(c) to the facts of the

case. SeeUnited Statesv. St. Cyr,977 F.2d698, 701(1st Cir. 1992).

________________
_______
____________________
3

This

range represents, coincidentally,

both what

the total

punishment would have been, in accordance with

5G1.2, had
defendant been sentenced on the federal and state bank robbery
convictions at the same time in federal court as well as the
punishment for the single federal conviction. Both calculations
are based upon a criminal history category of VI and total
offense level of 32. Defendant does not dispute either.
-3-

Was there a departure?

______________________
A perusal of
to determine

5G1.3 leads us to conclude that in order

whether a sentence

represents a departure
time served in

imposed pursuant to

from the guidelines,

state custody.

To hold

"sentence" with "total punishment"

the language of

5G1.3(c)

we do not

consider

otherwise would

equate

and leave meaningless much of

5G1.3, which we are bound to follow.

Like the

policy statements, the commentary to the Sentencing Guidelines is

binding when it "interprets or explains a guideline . .
it

violates

the

Constitution

with,

guideline."

Stinson v. United States,

_______
_____________

(1993).

inconsistent

1918

or

or

federal

plainly erroneous

Similarly, even

Manual] not labeled as guidelines

. unless

statute,
reading

113 S.

"'[p]ortions of

of,

Ct. 1913,

or

is

that

1915,

[the Guidelines

or commentary . . . are

to be

construed

as commentary

statements.'"

and

thus

have

the

Id. at 1918 (quoting U.S.S.G.

___

Section

5G1.3

is designed

force

of

policy

1B1.7, comment.).

to achieve

an incremental

punishment for a defendant who, at the time of sentencing for the

instant

offense,

imprisonment.

is

subject

U.S.S.G.

to

5G1.3.

an

undischarged

term

of

Although there is discretion as

to how to accomplish the incremental punishment, in fashioning an

appropriate sentence,

the district

Sentencing

Guidelines.

U.S.S.G.

U.S.C.A.

994(a)

1993).

(West

following method to
offense level

reach the

for the

court is constrained
5G1.3,
The

comment.

court

sentence: (1)

instant offense and

should

by the
n.3;

28

use

the

compute the

total

defendant's criminal

-4-

history category; (2) determine the resulting guideline range for

that offense; and (3) choose the point within the guideline range
that

effects

whether that
See
___

reasonable

sentence

United States
_____________

v.

incremental punishment

will run

concurrently or

Jackson,
_______

30

F.3d

199,

and

decide

consecutively.
201

(1st

Cir.

1994)(citing

18 U.S.C.

3553 (a),(b) (1988)); U.S.S.G.

5G1.3,

comment. n.3.
The commentary
such

an

incremental

consider the

to

5G1.3 instructs that,

punishment,

sentencing

guideline grouping rules of

to compute

judge

should

5G1.2 (Sentencing on

Multiple Counts of Conviction) which defines the total punishment

that the defendant would have received had he been simultaneously

sentenced

in federal court for both offenses.

Parkinson, 1993 WL 89801, at *4.

_________

Under

U.S.S.G.

5G1.3;

5G1.2, an offense level

and criminal history category for the combined offenses establish

a guideline range,

from which the

U.S.S.G.

comment.

5G1.2,

total punishment is

Often,

by

derived.

discounting the

total

punishment for time already

served on the undischarged sentence,

the

attain

sentencing

U.S.S.G.

judge

an

incremental

punishment.

5G1.3.
Confusion

circumstances.
conviction
Second,

can

in

this

First, the statutory

is well below the

because

case

extensive

criminal history points; 10 above the

from

two

unusual

maximum for the offense of

upper end of

of defendant's

5G1.2 calculation results

arises

the guideline range.

criminal

record (23

maximum, category VI), the

in the same guideline range

-5-

as that

arrived

at

offense.

pursuant to

2B3.1

for

the instant

In most cases, the latter would be less than the former

and the total punishment would not exceed the

for

the

combined

offenses.

Commission carefully

imposed

from

Sentencing

for the

instant

See generally U.S.S.G.

_____________

range,

we

look

at the

sentence

for the instant offense, not the total punishment.

calculated

under

mandate.

See
___

"consider"

were the total

5G1.3,

comment.

range

n.3

(instructing

court

to

5G1.2 "to the extent practicable").

court correctly looked to

offense of conviction,

an offense

punishment beyond the

This

5G1.2, because that section is a guide, not a

The trial

history

the

determining whether the sentencing judge

the guideline

is appropriate even

the

Nevertheless,

punishment."

Therefore, when

departed

hypothetical range

distinguished a "sentence

offense" from the "total

5G1.3.

bank robbery

level of
category

n.3(D)(illustrating

of

2B3.1, and found that Parkinson had

32 and,

as a

VI.

See
___

that, absent

within the guideline

range for the

career offender,
U.S.S.G.

of conviction here was

a criminal

5G1.3,

must fall

instant offense).

Although

a guideline range of 210

the statutory cap on the

240 months.

comment.

departure, sentence

this combination would ordinarily yield

to 262 months, as noted above,

the guideline for

18 U.S.C.A.

offense

2113(a) (West

1994).

Thus,

the

imposed 240-month

sentence,

to

be served

concurrently with the undischarged portion of Parkinson's ten-totwenty

year

state

sentence,

was

not

departure

from

the

was within

the

guideline range for the instant offense.

-6-

Would a departure have been justified?

______________________________________
Although

we

hold that

guideline range, a departure

any event.

the

sentence

in this case would be

This Court reviews the sentencing court's decision to

depart using

a three-step inquiry: first,

of

sufficiently unusual

the case

States v.
______
the

is

the

are the circumstances

to justify

departure, United
______

Qui ones, 26 F.3d 213, 217 (1st Cir. 1994); second, do

________

relied-upon

States v.
______

warranted in

factual

circumstances

Rivera, 994 F.2d 942, 950

______
departure reasonable,

generally United States

_________ _____________

actually

exist, United
______

(1st Cir. 1993); and third,

Jackson, 30
_______

F.3d

202 n.3.

v. D az-Villafa e, 874 F.2d

______________

See
___

43, 49 (1st

Cir.),
not

cert. denied 493 U.S. 862 (1989).

____________

challenge the

only the

first

reasonableness of

two steps

below.

the departure,
Our review

of the

district

conclusion that

warrant

departure is plenary, but we will set aside that court's

articulated
4A1.3.
defendant's

sentencing
his reasons

That

section

criminal

the likelihood

U.S.S.G.

judge

in

history

an

exist only if

abundance

departing under

permits

an

upward

category

"does

of

caution

the authority

of

departure when

not

adequately

the defendant's past criminal conduct

that [he]

United States v. Fahm,

_____________
____

to

D az-Villafa e, 874 F.2d at 49.

______________

for

reflect the seriousness of

or

sufficiently unusual

the relied-upon facts actually

they are clearly erroneous.

The

case was

we discuss

court's

determination that

the

Because defendant does

will commit

other crimes . . . ."

13 F.3d 447, 449 (1st

4A1.3 (policy statement)).

Cir. 1994)(quoting

Thirteen or more criminal

-7-

history points place a defendant in criminal history category VI;

according to

the presentence

twenty-three.

report, Parkinson

had accumulated

Given the notable difference between the criterion

for category VI and defendant's score, the upward departure rests

on solid

legal ground.

97

Cir.

(1st

category

VI

points).

activity.
occurred

his

(upward departure

from

justified

by defendant's

twenty

defendant

that

the

to

criminal

his release

for

repeat

guidelines

history

criminal history
that,

engage

robberies discussed

month of

proclivity

exists

continue

The extent of defendant's

criminality.

given
in

criminal

in

this opinion

from a

fifteen-year

criminal history, combined

performances,

underestimate

warrant
his

level

court's

Parkinson

challenges

documentation of
_____________

the

the

adequacy

the

of

factual

of

the

basis for

the

He questions neither the reliability nor the accuracy

of the evidence upon which the district court explicitly

See Fahm, 13 F.3d at 450.
___ ____
and

the

See Fahm, 13 F.3d at 450; Brown, 899 F.2d at 98.

___ ____
_____

Finally,

departure.

evidence

will

bank

within one

conclusion

district

strong

The two

sentence.
with

1990)

Further,

opportunity,

See United States v. Brown, 899 F.2d 94,

___ _____________
_____

every fact

that

relied.

The district court need not state each

supports the

departure.

Rather,

it

is

sufficient that the judge specifically identified his findings as

those set out in the presentence report.
Conclusion
__________

For the reasons stated above, the sentence is affirmed.

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-8-