UNITED STATES оf America, Plaintiff-Appellee and Cross-Appellant, v. Cheryl Marie GIGLEY, Defendant-Appellant and Cross-Appellee. United States of America, Plaintiff-Appellant and Cross-Appellee, v. Cheryl Marie Gigley, Defendant-Appellee and Cross-Appellant.
Nos. 99-3025, 99-3062, 99-3048, 99-3049
United States Court of Appeals, Tenth Circuit.
May 17, 2000.
213 F.3d 503
MOTION GRANTED; APPEAL DISMISSED.
Marilyn M. Trubey, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the brief), Topeka, Kansas, for Defendant-Appellee/Cross-Appellant.
Before BALDOCK, HENRY, and LUCERO, Circuit Judges.
ORDER
BALDOCK, Circuit Judge.
These matters are before the court to correct an error in the issuance of the panel‘s opinions on March 24, 2000. Through clerical error, a dissent prepared by Judge Robert H. Henry was not attached to the disposition of appeal numbers 99-3049 and 99-3062. Consequently, we recall the mandates in appeal numbers 99-3025, 99-3048, 99-3049 and 99-3062, issued on April 17, 2000 and vacate the court‘s original judgments in these appeals. The court‘s opinion in 99-3049 and 99-3062, with the dissent included, is attached tо this order and is reissued today. Also, the court‘s opinion in 99-3025 and 99-3048 is, without change, separately reissued today.
The mandates in all four appeals shall reissue forthwith.
OPINION
Defendant Cheryl Marie Gigley pled guilty to failure to appear as required by the conditions of her release in violation of
I.
In the companion case, Defendant pled guilty to possession with intent to distribute methamphetamine in violation of
On appeal, the Government argues that the district court erred in ordering 12 months of Defendant‘s sentence for failure to appear to run concurrently with her sentence in the companion drug case. At the sentencing hearing, the Government objected to the imposition of a partially concurrent sentence. The district court noted the objection, but made no ruling.1
In her cross-appeal, Defendant argues that the two cases should have been grouped for sentencing. For that purpose, Defendant filed a motion to consolidate the drug case and the failure to appear case for sentencing. The district court denied the motion, stating: “The motion to combine these cases is denied and overruled, and they will be held separately.” At the sentencing hearing in the drug case, Defendant again argued that the offenses should be grouped. Again, the distriсt court made no ruling, but did not group the offenses.
II.
We review the district court‘s statutory interpretation de novo. Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th Cir. 1998). We also review its application of the sentencing guidelines to the facts de novo. United States v. Roberts, 185 F.3d 1125, 1144 (10th Cir. 1999). Under
Once the offenses are grouped, the district court is to determine the offеnse level of the group, set the total punishment, and impose consecutive sentences within the total punishment. The group‘s offense level “is the offense level ... for the most serious of the counts comprising the group, i.e., the highest offense level of the counts in the group.” Id. at § 3D1.3(a). The total punishment is determined based on any applicable statutory minimums and the sentencing table in Chapter 5. Id. at §§ 3D1.5, 5G1.2. “[T]he combined sentence must be constructed to provide a ‘total punishment’ that satisfies the requirements both of § 5G1.2 ... and
For example, where the combined applicable guideline range for both counts is 30-37 months and the court determines a “total punishment” of 36 months is appropriate, a sentеnce of thirty months for the underlying offense plus a consecutive six months sentence for the failure to appear count would satisfy these requirements.
Id.
The sentencing guidelines direct the district court to construct a sentence that complies with both the guideline range and the statutory requirement of consecutive sentences: “Note that the combination of this instruction and incrеasing the offense level for the obstructive, failure to appear conduct has the effect of ensuring an incremental, consecutive punishment for the failure to appear count, as required by
The district court should have grouped Defendant‘s drug offense and her failure to appear offense for sentencing and imposed a total punishment with consecutive sentences. See Lacey, 969 F.2d at 930 (“[I]f a defendant is convicted of one of the listed obstruction offenses as well as an underlying offense, the counts should be grouped.“). The offense level of the drug charge will most likely be higher than the offense level of the failure to appear charge. Therefore, the combined offense level will be the same as the offense level of the drug charge. The district court should then find the sentencing range for the combined offense level and select a total punishment within that range. The sentences for Defendant‘s drug offense and her failure to appear offense are to run consecutively and add up to the total punishment.5
REMANDED for resentencing in accordance with this opinion.
HENRY, Circuit Judge, dissenting, in part.
The majority concludes that when a defendant is convicted of failure to appear in addition to the underlying offense, courts should group the two offenses pursuant to the Sentencing Guideline grouping rules. The grouping rules instruct the sentencing judge to determine the base offense level from the underlying offense and apply an upward adjustment based on the convic-
As the majority points out, § 3146 provides, “[a] term of imprisonment imposed [for failure to appear] shall be consecutivе to the sentence of imprisonment for any other offense.”
Commentary 3 to § 2J1.6 instructs the sentencing judge to group the failure to appear conviction with the underlying conviction, pursuant to the guideline grouping rules, for one total punishment. See USSG § 2J1.6 comment. (n. 3), § 3D1.2(c). Under the guideline grouping rules, this requires using the higher base offense level of the two offenses, here, the underlying offense, and using the failure to appear offense as an upward adjustment for obstruction of justice. See USSG § 2J1.6 comment. (n. 3), § 3C1.1. The guideline commentary then instructs the sentencing judge to simply designate a portion of the total sentence as the consecutive sentence for the failure to appear offense. See id. Amendment 579 added language to Commentary 3, “[n]ot[ing] that the combination of this instruction and increasing the offense level for the obstructive, failure to appear conduct has the effect of ensuring an incremental, consecutive punishment for the failure to appear count, as required by
However, I am unconvinced that Commentary 3, even with the additional language, resolves the direct conflict between applying the guideline grouping rules to a conviction for failure to appear and the consecutive sentence requirement in
The majority also relies on the amended language of USSG § 3D1.1(b). See Maj. Op., at n. 3. Prior to Amendment 579, § 3D1.1(b) provided “[a]ny count for which the statute mandates imposition of a consecutive sentence is excluded from the operation of [the grouping rules of] §§ 3D1.2-3D1.15.” USSG § 3D1.1(b) (1997). Thus, the consecutive sentence requirement of § 3146(b)(2) excluded a failure to appear conviction from the guideline grouping rules, an approach consistent with the language of the statute. However, at that time, § 3D1.1(b) was in conflict with Commentary 3 to § 2J1.6, which instructed the sentencing judge to group the failure to appear conviction with the conviction for the underlying offense.
Consequently, in 1998, Amendment 579 altered the language of § 3D1.1(b) to exclude from the grouping rules only those counts “for which the statute (1) specifies a term of imprisonment to be imposed; and (2) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.” USSG Supp. to App. C, amend. 579, at 10 (1998). Because § 3146(b)(2) does nоt specify a term of imprisonment to be imposed, the guidelines no longer exempt a failure to appear conviction from the grouping rules. Thus, § 3D1.1(b) is now consistent with the sentencing approach outlined in Commentary 3 to § 2J1.6.
The majority‘s reliance on Amendment 579 is unpersuasive. As the Sentencing Commission concedes, this amendment merely remedies prior inconsistencies within the guidelinеs. See id. at 12. (“The amendment maintains the current grouping rules for failure to appear ..., but addresses internal inconsistencies among different guidelines....“). Despite the Sentencing Commission‘s characterization of the amendment as “ensur[ing] an incremental, consecutive penalty for the failure to appear count,” it does nothing to remedy the inherent conflict, discussed above, between the consecutive sentence requirement of § 3146(b)(2) and the grouping approach outlined in Commentary 3 to USSG § 2J1.6.
For the foregoing reasons, I would instruct the district court not to group the failure to appear with the underlying offense and instead impose separate, consecutive sentences.
Nos. 99-3025, 99-3048.
United States Court of Appeals, Tenth Circuit.
May 17, 2000.
Notes
[u]nless specifically instructed, subsection (b) does not apply when imposing a sentence under a statute that requires the imposition of a consecutive term of imprisonment only if a term of imprisonment is imposed (i.e., the statute does not otherwise require a term of imprisonment to be imposed.) See, e.g.,United States Sentencing Commission, Guidelines Manual, § 3D1.1 comment. (n. 1) (Nov. 1998). In 1998, Amendment 579 added this language to § 3D1.1 comment. (n. 1). See U.S.S.G. Supplement to App. C, Amendment 579 (1998). Ordinarily we apply the sentencing guidelines in effect at the time of sentencing, which in this case is the 1997 guidelines. U.S.S.G. § 1B1.11(a); United States v. Hicks, 146 F.3d 1198, 1200 n. 2 (10th Cir.), cert. denied, 525 U.S. 941 (1998). We may, however, apply clarifying amendments retroactively to help us understand an oldеr version of the guidelines. U.S.S.G. § 1B1.11(b)(2); United States v. Kissick, 69 F.3d 1048, 1052 (10th Cir. 1995). The following factors tend to show that an amendment is for clarification: it does not overrule existing precedent, it revises a commentary note rather than a guideline, and the authors characterized it as clarifying. Kissick, 69 F.3d at 1052. Because Amendment 579 did not overrule existing precedent in this circuit, merely changed the commentary, and was characterized by its authоrs as a clarifying amendment, we conclude that it was a clarifying amendment and may be applied retroactively. See U.S.S.G. Supplement to App. C, Amendment 579 (1998) (“The purpose of this amendment is to clarify how several guideline provisions, including those on grouping multiple counts of conviction, work together to ensure an incremental, consecutive penalty for a failure tо appear count.“) (emphasis added); Kirkham, 195 F.3d at 131-32 (finding that Amendment 579 was clarifying rather than substantive and applying it retroactively).18 U.S.C. § 3146 (penalty for failure to appear).... Accordingly, the multiple count rules set out under this Part do apply to a count of conviction under this statute.