Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

No. 89-10294.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and BEEZER, Circuit Judges, and ANDREW J. KLEINFELD,^***  District Judge.

MEMORANDUM^** 

Earl James Lawson escaped from a halfway house, pleaded guilty to a violation of 18 U.S.C. § 751 (1988), and now appeals his sentence under the Sentencing Guidelines. He argues that the district court should have departed further downward from the applicable guideline range and should have imposed a concurrent instead of consecutive sentence. We dismiss the appeal in part, and we affirm in part.

"A district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal." United States v. Morales, No. 89-10168, slip op. 2423, 2430 (9th Cir. March 5, 1990). We therefore cannot examine Lawson's contention that the district court should have departed further from the guideline range than it had already departed.

We can, however, review the district court's decision to impose a consecutive sentence instead of a concurrent sentence. See United States v. Burns, 894 F.2d 334, 337 (9th Cir. 1990); United States v. Wills, 881 F.2d 823, 826 (9th Cir. 1989). Under Sec. 5G1.3 of the Sentencing Guidelines

If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentence 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.

The district court noted that "there is a presumption in the statute (sic) for this kind of an offense, that indeed such a sentence is to be consecutive." The court's decision that Lawson's escape arose out of a different occurrence than his initial offense is not clearly erroneous. See Burns, 894 F.2d at 337.

We explained in Wills that although the guidelines require that sentences for offenses arising from separate occurrences "shall run consecutively," district courts nonetheless have discretion to impose concurrent sentences under 18 U.S.C. § 3584(a). 881 F.2d at 826. The district court's comment that there is a statutory presumption in favor of a consecutive sentence was therefore inaccurate.

However, as in Burns, the district court gave an independent justification for adopting a consecutive sentence. It explained that "it makes absolutely no sense that someone who has, while serving a term, escaped, should then get concurrent time for the sentence that is imposed." We find no need to remand to the district court because the transcript of the sentencing hearing indicates that the court would have imposed a consecutive sentence if it exercised statutory discretion under 18 U.S.C. § 3584(a).

DISMISSED IN PART, AFFIRMED IN PART.