Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1990)

MEMORANDUM^** 

A prison escapee contends that his sentence was improper and in violation of his plea agreement. We have jurisdiction under 28 U.S.C. § 1291.

BACKGROUND

Philip Lee Holte was serving a 30-month sentence for a federal conviction of heroin distribution at the Clackamas County Residential Center, a federal contract facility. After the Center revoked his work release status for heroin use, he escaped. He surrendered himself three weeks later.

On November 15, 1988, a grand jury charged him with escape, a violation of 18 U.S.C. § 751(a). Having first pleaded not guilty, he changed his plea to guilty on November 28 and filed a form plea petition with the court. It included a two-page discussion of the Federal Sentencing Guidelines. At the end of this section, Holte wrote in his own handwriting: "My lawyer has informed me that the guidelines do not apply to my case." The plea petition indicated that he was subject to a maximum prison term of five years and a maximum fine of one million dollars. After a hearing under Fed. R. Crim. P. 11, the court accepted his guilty plea.

On January 18, 1989, the Supreme Court upheld the constitutionality of the sentencing guidelines. Mistretta v. United States, 109 S. Ct. 647 (1989). Thereafter, Holte filed motions requesting that (1) he be sentenced under pre-guideline law, (2) he be given a sentence concurrent with the federal sentence he was then serving, or (3) the court grant him a downward departure. The court denied these requests, and imposed an 18-month consecutive sentence under the guidelines.

DISCUSSION

Holte makes two arguments: (1) he should have been sentenced under pre-guideline law because, when he entered into his plea agreement, he reasonably believed that the guidelines would not be applied; and (2) the imposition of a consecutive sentence was improper because Sentencing Guideline Sec. 5G1.3 is invalid.

Holte claims that his understanding of the plea agreement was that he would be sentenced under pre-guideline law, and that the court erred in using the guidelines in its sentence. When he committed the crime and entered into his plea agreement, the guidelines had been held unconstitutional in this circuit. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). When the court imposed sentence, however, the guidelines had been upheld in Mistretta.

We held recently that "the Guidelines remained a legally enacted statutory sentencing scheme throughout the five month period between August 23, 1988, and January 18, 1989." United States v. Gonzalez-Sandoval, No. 89-50174, slip. op. 507, 526 (9th Cir. Jan. 18, 1990). In that case, we rejected the defendant's argument that the application of the guidelines violated due process because his crime was committed during the period of time after this court had declared the Sentencing Reform Act unconstitutional. Id. at 524. The district court properly sentenced Holte under the guidelines.

Moreover, Holte's argument that he reasonably understood he would not be sentenced under the guidelines fails. He relies on our decision in United States v. Kamer, 781 F.2d 1380 (9th Cir.), cert. denied, 479 U.S. 819 (1986), where we said that " [i]n determining whether a plea agreement has been broken, courts look to what was 'reasonably understood by [the defendant] when he entered his plea of guilty.' " Id. at 1387 (quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

The plea agreement did not mention the guidelines, and the government made no promises to Holte as to his sentence.¹  See United States v. Turner, 881 F.2d 684, 686 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989). The plea petition indicated the maximum penalty for his crime, and explained how the guidelines operated. See id.

He was also on notice that the guidelines might apply to him when he pleaded guilty. As we noted recently:

When Gubiensio-Ortiz was decided, the guidelines were part of a properly enacted statutory sentencing scheme of which all defendants in this circuit had notice. Those defendants were also on notice that the Supreme Court had already granted certiorari in Mistretta and might overrule the holding of Gubiensio-Ortiz.

United States v. Kane, 876 F.2d 734, 736 (9th Cir.), cert. denied, 110 S. Ct. 173 (1989). If Holte thought that the guidelines would not apply to him,²  that belief was unreasonable. The court applied the correct law at sentencing.

Holte argues that this court should declare that Guideline Sec. 5G1.3 is invalid because it is inconsistent with 18 U.S.C. § 3548(a). When he was sentenced, Sec. 5G1.3 provided:

If 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. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law.³ 

The Commentary provides that " [d]eparture would be warranted when independent prosecutions produce anomalous results that circumvent or defeat the intent of the guidelines."

18 U.S.C. § 3584(a) provides in relevant part:

[I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively....

Holte argues that Guideline Sec. 5G1.3 is inconsistent with 18 U.S.C. § 3584(a) because, whereas Sec. 5G1.3 seems to require the court to impose a consecutive sentence when the defendant is already serving an unexpired sentence, Sec. 3584(a) allows it to impose a concurrent sentence.

This court recently found that Sec. 5G1.3 was valid when interpreted in light of Sec. 3584(a). We held that, in applying Guideline Sec. 5G1.3, "a judge has discretion to impose a concurrent or consecutive sentence, as a matter of law, under section 3584(a)." United States v. Wills, 881 F.2d 823, 826 (9th Cir. 1989).

In this case, the court concluded that it "must" impose a consecutive sentence. The district judge, acting prior to our decision in Wills, thought he had no discretion to impose anything but a consecutive sentence under the guidelines. We remand for resentencing to allow the court to exercise its discretion.

AFFIRMED IN PART, REMANDED IN PART.