USA vs. Figueroa, (5th Cir. 2007)

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United States Court of Appeals

Fifth Circuit

FILED

In the January 30, 2007

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

m 06-50458

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHRISTIAN SAMOL FIGUEROA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

m 6:05-CR-212-2

Before SMITH, WIENER, and OWEN, Christian Figueroa pleaded guilty of bank

Circuit Judges. robbery and aiding and abetting bank robbery

in violation of 18U.S.C. §§ 2113(a) and 2,

PER CURIAM:* and he appeals his sentence. We vacate and remand for resentencing. I. * Pursuant to 5TH CIR. R. 47.5, the court has Figueroa was arrested after a high-speed determined that this opinion should not be pub- chase following a bank robbery. He was pro- lished and is not precedent except under the limited secuted in a Texas state proceeding for various circumstances set forth in 5TH CIR. R. 47.5.4. offenses related to the robbery and was sen- At issue is whether the district court proptenced to fifty years' imprisonment. He was erly followed the guidelines' requirement that subsequently indicted in federal court for the Figueroa be credited with the time he served primary offense of bank robbery and pleaded on his related state conviction before being guilty. sentenced in federal court. The guidelines, U.S.S.G. § 5G1.3(b)(1), state that if a defen Based on the presentence report, the court dant has a term of imprisonment resulting from found that Figueroa's offense level was 29 and a related offense, "the court shall adjust the his criminal history score was VI, yielding a sentence for any period of imprisonment alguideline range of 151 to 188 months' impris- ready served on the undischarged term of imonment. The government moved for an up- prisonment if the court determines that such ward departure based on several uncharged of- period of imprisonment will not be credited to fenses, and Figueroa moved for a downward the federal sentence by the Bureau of Prisons." departure, pursuant to U.S.S.G. § 5G1.3(b), to account for the 15 months he had already The commentary elaborates on the approspent in state custody for the related offense. priate application of this guideline and pro vides an example. The court should first de The court departed upward and sentenced termine the appropriate sentence according to him to 240 months' imprisonment to be served the guideline range. If credit is due for time concurrently with his state sentence. The de- already served on a related state charge, that parture was based on his use of an illegal wea- time is then subtracted from the sentence. See pon and stolen vehicle in the commission of U.S.S.G. § 5G1.3 comment. (n.2(D)). If time the offense. The court did not address Figuer- is credited under this section, it should be notoa's § 5G1.3(b) request at sentencing or in its ed on the Judgment in a Criminal Case Order.

Judgment in a Criminal Case Order. See U.S.S.G. § 5G1.3 comment. (n.2(C)).

II. We have held, in a pre-Booker case, that Aft er United States v. Booker, 543 U.S. the application of § 5G1.3(b) is mandatory.

220 (2005), we continue to review a district See United States v. Rangel, 319 F.3d 710, court's interpretation of the sentencing guide- 714 (5th Cir. 2003). Although Booker prolines de novo. United States v. Medina-Argu- vides sentencing judges flexibility to depart eta, 454 F.3d 479, 481 (5th Cir. 2006). Be- from the guideline range, it does not allow fore imposing a non-guideline sentence, a them to bypass a provision of the guidelines, court must consider the guidelines. United which still provide an anchor for our evaluaStates v. Smith, 440 F.3d 704, 707 (5th Cir. tion of a sentence's reasonableness. Booker 2006); United States v. Mares, 402 F.3d 511, does not nullify § 5G1.3(b), and when that 518-19 (5th Cir.), cert. denied, 126 S. Ct. 43 section applies, sentencing judges must include (2005). This consideration requires that the its dictates in the calculation of the proper guideline sentence.1 court calculate the appropriate guideline range.

Smith, 440 F.3d at 707. The court must justify a departure from the guidelines, and "the farther a sentence varies from the applicable 1 We need not, and do not, consider whether Guideline sentence, the more compelling the sentencing courts must, under Booker, follow justification . . . must be." Id. (continued...) The government argues that the court actually did grant Figueroa's request for a downward departure and that the ultimate sentence reflects that departure. It bases its position on the court's statement, at sentencing, that it would "abide by the mandate of the guideline range." Accordingly, the government posits that the district court decided to depart upwardly to 255 months before subtracting 15 months for the time already served, to reach an ultimate sentence of 240 months, and that the court did so without explaining its reasoning at sentencing or in the Judgment Order.

Even assuming, arguendo, that the government's characterization is accurate, the court did not acknowledge § 5G1.3(b) in its sentencing calculations. Accordingly, we VACATE the sentence and REMAND for resentencing.

We express no opinion on what sentence the district court should impose on remand.

1 (...continued) § 5G1.3(b) and subtract the time served. We conclude only that courts must include the calculation required by this section when determining the proper guideline sentence.

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