United States of America v. Eric L. Swan

Filed January 2, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-1598
UNITED STATES OF AMERICA
v.
ERIC L. SWAN,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 00-cr-00111)
District Judge: Honorable William L. Standish
Argued September 6, 2001
Before: SCIRICA, RENDELL, and ALDISERT,
Circuit Judges
(Filed: January 2, 2002)
Karen S. Gerlach [ARGUED]
Office of Federal Public Defender
960 Penn Avenue
415 Convention Tower
Pittsburgh, PA 15222
Counsel for Appellant
Eric L. Swan

-- 1 of 31 --

Bonnie R. Schlueter
James H. Love [ARGUED]
Office of United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, PA 15219
Counsel for Appellee
United States of America
OPINION OF THE COURT
RENDELL, Circuit Judge.
Defendant, Eric Lish Swan, appeals his sentence for an
offense committed while on supervised release. The District
Court believed that the Sentencing Guidelines mandated
that it be served consecutively to the previously imposed
sentence for violation of supervised release. The main issue
on appeal is whether S 5G1.3(c) of the Sentencing
Guidelines and the accompanying Application Note 6
required the District Court to impose a consecutive
sentence in these circumstances. This issue is the subject
of a split in the courts of appeals and is one of first
impression in our court. For the reasons described below,
we agree with the apparent minority of courts holding that
the language of Application Note 6 is not mandatory and,
accordingly, will vacate the judgment of sentence and
remand for resentencing.
I.
In April 2000, the Pittsburgh Housing Authority Police
responded to a call reporting a suspicious gathering. When
they arrived, they saw Swan walk quickly toward a car,
holding onto his pocket. After Swan jumped into the car,
one of the officers saw him pull a holster containing a gun
from his waistband and place it under the seat of the car.
The police stopped the car and arrested Swan. App. at 76-
78.

-- 2 of 31 --

It was soon discovered that Swan had been convicted in
1992 of carrying a firearm during a drug trafficking crime
2

-- 3 of 31 --

and of two drug counts. He was on supervised release from
this 1992 conviction at the time he was arrested.
The United States District Court for the Western District
of Pennsylvania held a hearing in May 2000 to consider the
supervised release violation, and revoked Swan's supervised
release because he had violated the conditions that he
participate in residential drug treatment and that he not
commit a crime or possess a firearm. Swan was sentenced
to a term of 21 months. App. at 50.
While serving this term, Swan was indicted and
eventually pled guilty to the charge of being a felon in
possession of a firearm in violation of 18 U.S.C.S 922(g)(1),
also in the Western District of Pennsylvania before the
same judge. App. at 64, 65-81. Prior to sentencing, Swan's
counsel filed a motion urging that Swan's sentence for the
felon in possession offense should run concurrently or
partially concurrently with the sentence Swan was already
serving. App. at 85. At issue was the meaning of
Application Note 6 to S 5G1.3(c) of the Sentencing
Guidelines ("U.S.S.G." or "guidelines"), which provides:
If the defendant was on federal or state probation,
parole, or supervised release at the time of the instant
offense, and has had such probation, parole, or
supervised release revoked, the sentence for the instant
offense should be imposed to run consecutively to the
term imposed for the violation of probation, parole, or
supervised release in order to provide an incremental
penalty for the violation of probation, parole, or
supervised release.
U.S.S.G. S 5G1.3(c), Application Note 6 (2000).
After ordering briefing on this issue, the District Court
concluded that "[i]n the absence of binding precedent, . . .
Application Note 6 [of S 5G1.3] requires the court to impose
a consecutive sentence in this case." App. at 14. The Court
then imposed a sentence of 65 months to run consecutively

-- 4 of 31 --

to the defendant's 21-month sentence. App. at 171. Swan
filed a timely appeal from the sentencing order.
II.
We have jurisdiction pursuant to 28 U.S.C. S 1291 and
18 U.S.C. S 3742(a)(1)-(2). Although decisions to impose a
3

-- 5 of 31 --

particular concurrent or consecutive sentence are reviewed
for abuse of discretion, because this appeal concerns the
construction of Sentencing Guidelines, our review is
plenary. See, e.g., United States v. Spiers, 82 F.3d 1274,
1277 (3d Cir. 1996).
Section 5G1.3 addresses the sentencing of a defendant
subject to an undischarged term of imprisonment. It
provides:
(a) If the instant offense was committed while the
defendant was serving a term of imprisonment
(including work release, furlough, or escape status) or
after sentencing for, but before commencing service of,
such term of imprisonment, the sentence for the
instant offense shall be imposed to run consecutively
to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the
undischarged term of imprisonment resulted from
offense(s) that have been fully taken into account in
the determination of the offense level for the instant
offense, the sentence for the instant offense shall be
imposed to run concurrently to the undischarged term
of imprisonment.
(c) (Policy Statement) In any other case, the sentence
for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to
the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.1
_________________________________________________________________
1. We apply the 2000 edition of the Sentencing Guidelines, as this
version was in effect at the time Swan was sentenced and its application
does not violate the ex post facto clause. See U.S.S.G. S 1B1.11.
Section 5G1.3 was effective in 1987 and was amended in 1989, 1991,
1992, 1993, and 1995. The language of Application Note 6 was first
introduced as Note 4 in 1993. The two notes are essentially identical --

-- 6 of 31 --

Note 6 substitutes "to run" for "to be served" and "See S 7B1.3
(Revocation of Probation or Supervised Release) (setting forth a policy
that any imprisonment penalty imposed for violating probation or
supervised release should be consecutive to any sentence of
imprisonment being served or subsequently imposed)" for the 1993
version's "(in accord with the policy expressed in SS 7B1.3 and 7B1.4)."
4

-- 7 of 31 --

The parties agree that (a) is inapplicable, but Swan argues
that (b) applies, mandating a concurrent sentence, or, in
the alternative, that (c) applies and gives the district court
discretion to impose a concurrent or partially concurrent
sentence.
A. Section 5G1.3(b)
In order to discuss the import, and impact, of S 5G1.3(b),
it is helpful to review Swan's offenses once more. His initial
conviction, as noted above, was for carrying a firearm in
connection with drug trafficking, and two drug counts. We
could term this a "gun-drug" crime. While on supervised
release resulting from this crime, he failed to seek drug
treatment and committed a crime or possessed a gun, and
his supervised release was revoked. This conduct we can
classify as "failure of drug treatment/crime or gun
possession" conduct. Then, the instant sentencing was for
the crime of being a felon in possession of a firearm -- his
"felon in possession" charge.
The question under S 5G1.3(b) is whether the
undischarged term of imprisonment (namely, the 21
months imposed because of his revocation of supervised
release) "resulted from offenses" that have been "fully taken
into account in the determination of the offense level for the
instant offense." U.S.S.G. S 5G1.3(b).
Looking at the last element first, we ask what was"taken
into account" in the determination of Swan's offense level
for his sentencing as a felon in possession of a firearm. The
District Court determined that the base offense level was
20, pursuant to the guideline for defendants sentenced for
being a felon in possession of a firearm. See U.S.S.G.
S 2K2.1(a)(4). A 2-point enhancement for a stolen gun and
a 3-point decrease for acceptance of responsibility resulted
in an offense level of 19. Can we say that Swan's 21-month
sentence resulted from an offense that was fully taken into
account in the determination of that offense level of 19?

-- 8 of 31 --

We note that there is a difference of opinion as to
whether the concept of "resulted from the offense" is
intended to look back to the initial offense (here, the
gun/drug crime but for which there would have been no
supervised release or revocation thereof), or whether the
5

-- 9 of 31 --

"offense" referred to is the conduct that had the immediate
impact of his release revocation and therefore the
imposition of the term of imprisonment (in this case, the
failure of drug treatment/crime or gun possession conduct).2
We need not decide which is the proper reading, however,
because we conclude that neither of these offenses was
"fully taken into account" in the court's determination of
the offense level of 19. While the Guidelines do not define
this phrase, the drafters' inclusion of the word"fully" and
the provision's purpose of avoiding double-counting
indicate that more than just some effect on the offense level
is required. See, e.g., Witte v. United States, 515 U.S. 389,
404-06 (1995) (S 5G1.3's purpose is to avoid double
counting); United States v. Dorsey, 166 F.3d 558, 562 (3d
Cir. 1999) (same). Section 5G1.3(b) appears to be aimed at
the situation in which, unless the sentences were
_________________________________________________________________
2. The parties assumed that the more immediate offense, namely the
supervised release violation, was the relevant offense, while the District
Court considered the initial offense, pointing out that we have no clear
directive on this issue in this circuit and relying on United States v.
Garcia-Hernandez, 237 F.3d 105 (2d Cir. 2000). App. at 8-11. We note
that, in the context of an earlier version of S 5G1.3, we looked to the
initial offense: "[O]ur law is that if an offense is committed while a
defendant is on parole, that offense is compared to the offense for which
the defendant is on parole rather than to the acts constituting a violation
of parole for purposes of `the same transactions or occurrences' clause
in guideline S 5G1.3." United States v. Chasmer, 952 F.2d 50, 52 (3d Cir.
1991) (citing United States v. Nottingham, 898 F.2d 390, 393 (3d Cir.
1990), limited on other grounds, United States v. Higgins, 128 F.3d 138,
141 (3d Cir. 1997)). If we were to analyze the issue, we would certainly
consider the fact that the guideline language in both Nottingham and
Chasmer was very different from the current language. At the time,
S 5G1.3 provided for consecutive sentences when defendant was serving
an unexpired sentence "unless one or more of the instant offense(s)
arose out of the same transactions or occurrences as the unexpired
sentences." U.S.S.G. S 5G1.3 (1988). The commentary stated that the
presumption that sentences imposed at different times run consecutively

-- 10 of 31 --

"does not apply when the new counts arise out of the same transaction
or occurrence as a prior conviction." U.S.S.G.S 5G1.3, commentary
(1988). The focus, thus, was on "prior conviction," not on what offenses
the imprisonment "resulted" from. However, as we note, we do not need
to rule on this question here.
6

-- 11 of 31 --

concurrent, the defendant would be serving two sentences
for essentially the identical offense.
While there is arguably some overlap, clearly, the offense
level of 19 for the felon in possession charge did not "fully"
take into account either the original offense conduct or the
supervised release violation. Here, criminal conduct and
prohibited conduct that occurred in connection with the
initial offense and the supervised release revocation is not
being considered at all in connection with the felon in
possession charge. The scheme of S 5G1.3 seems to
contemplate (b) as the "double-counting" section and
subsection (c) as the section more appropriate if there is no
precise double-counting, but perhaps some overlap, as is
the case here.
B. Section 5G1.3(c) and Application Note 6
As neither (a) nor (b) applies, Swan's situation is
addressed by S 5G1.3(c) and by the accompanying
Application Note 6. The application note provides that, for
a defendant like Swan who was on supervised release at the
time of the instant offense and whose supervised release
was revoked, "the sentence for the instant offense should be
imposed to run consecutively to the term imposed for the
violation of probation, parole, or supervised release in order
to provide an incremental penalty for the violation of
probation, parole, or supervised release." U.S.S.G.
S 5G1.3(c), Application Note 6 (2000) (emphasis added). We
will first review the jurisprudential landscape of opinions
that have considered the meaning of this note and that
animate our ruling.
1. Reasoning of Other Courts of Appeals
The courts of appeals are divided as to whether
S 5G1.3(c) and Application Note 6 mandate a consecutive
sentence in these circumstances. The Courts of Appeals for
the First, Fifth, Eighth, and Ninth Circuits have held that
a consecutive sentence is mandatory, while those for the

-- 12 of 31 --

Second and Tenth have held that it is not.3 The Court of
_________________________________________________________________
3. Compare United States v. Goldman, 228 F.3d 942, 944 (8th Cir. 2000)
(holding that Application Note 6's language is mandatory), cert. denied,
7

-- 13 of 31 --

Appeals for the Seventh Circuit has not decided the issue,
but has suggested in dicta that there is a "strong
presumption" for consecutive sentences in these
circumstances. United States v. Walker, 98 F.3d 944, 945
(7th Cir. 1996).
The decisions on each side of the issue begin from
different premises. The courts of appeals that found the
language to be permissive interpreted "should" as non-
mandatory and gave weight to the drafters' choice of the
word. They then examined other parts of the guidelines and
found no clear manifestations of a contrary intent on the
part of the Sentencing Commission. In United States v.
Maria, 186 F.3d 65, 70 (2d Cir. 1999), the Court of Appeals
for the Second Circuit began with "should," which it
considered to be the "critical language." It reasoned that the
common meaning of "should" "suggests or recommends a
course of action." Id. It then analyzed the broad discretion
given by a related guideline provision, namely S 5G1.3(c),
together with S 7B1.3's "recommendation" that sentences be
consecutive and with the use of the word "incremental" in
Application Note 6, and concluded that nothing in the
statutory scheme or history of the guidelines indicated that
"should" was mandatory. Id. at 71-72. In United States v.
Tisdale, 248 F.3d 964 (10th Cir. 2001), the Court of
Appeals for the Tenth Circuit found Maria persuasive and
reached the same conclusion for essentially the same
reasons.
_________________________________________________________________
121 S. Ct. 1149 (2001), United States v. Alexander, 100 F.3d 24, 26-27
(5th Cir. 1996) (same), United States v. Gondek , 65 F.3d 1, 2-3 (1st Cir.
1995) (same), and United States v. Bernard, 48 F.3d 427, 430-32 (9th
Cir. 1995) (same), with United States v. Tisdale , 248 F.3d 964, 976-80
(10th Cir. 2001) (holding that Application Note 6 is not mandatory), and
United States v. Maria, 186 F.3d 65, 70-73 (2d Cir. 1999) (same). In the
version of the guidelines at issue in Bernard and Gondek, the language
of current Application Note 6 appeared in Note 4.
The government includes United States v. Flowers , 13 F.3d 395, 397

-- 14 of 31 --

(11th Cir. 1994), in its list of cases that found the language mandatory,
but Flowers is of limited use as it considered the Sentencing Guidelines
in effect in March 1993, before the relevant application note was
inserted.
8

-- 15 of 31 --

In contrast, the courts of appeals that have read
Application Note 6 as mandating consecutive sentences
started from the premise that the choice of "should" has
little weight (even while acknowledging that it ordinarily has
a permissive meaning). They then looked for other
indicators that might help determine whether the section
was permissive or mandatory. In the most exhaustive
opinion on the issue, the Court of Appeals for the First
Circuit asserted that "[s]ome might . . . attach weight to the
note's use of the word `should,' rather than`shall,' . . . but
these shadings in guideline language do not appear to be
very reliable guides." United States v. Gondek, 65 F.3d 1, 2-
3 (1st Cir. 1995). Reasoning that the phrase "in order to
provide an incremental penalty" indicated the Commission's
decision that a fully consecutive sentence is the appropriate
incremental penalty in these circumstances, that
Application Note 6 treats essentially the same situation as
that addressed by subsection (a), and that S 7B1.3(f)
expresses a policy favoring consecutive sentences, the court
concluded that the "greater weight of the evidence"
supported a reading of the application note as mandatory.
Id. at 3. The Courts of Appeals for the Eighth and Fifth
Circuits underwent a similar analysis.4 See United States v.
Goldman, 228 F.3d 942, 944 (8th Cir. 2000); United States
v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996).
For the reasons explained below, we agree with the
courts holding that the language of the application note is
permissive.5 We have examined the same factors that the
majority of courts of appeals found convincing, but we are
persuaded that they point to a different result. In reaching
this decision, we use basic tools of statutory interpretation,
looking to the language of Application Note 6, the
relationship between this language and S 5G1.3 as a whole,
and the broader context of the guidelines, specifically
S 7B1.3, which Application Note 6 references. Cf. Davis v.
_________________________________________________________________
4. In Bernard, the Court of Appeals for the Ninth Circuit focused on
whether application of the 1993 guidelines to the defendant violated the

-- 16 of 31 --

ex post facto clause, assuming without discussion that the relevant
application note was mandatory. See Bernard, 48 F.3d at 431.
5. For the purposes of this opinion, we need not decide whether
S 5G1.3(c) and Application Note 6 are binding as we decide that they are
not mandatory. See Maria, 186 F.3d at 69 n.4.
9

-- 17 of 31 --

Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989) ("It is
a fundamental canon of statutory construction that the
words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.");
United States v. Wong, 3 F.3d 667, 670-71 (3d Cir. 1993)
(applying principles of statutory construction to sentencing
guidelines). Our conclusion is also based on our prior
decisions in this area, which reflect a preference for
recognizing the district court's discretion when the
statutory language permits.
2. The Language of Application Note 6
We begin with "the plain and unambiguous language of
the Sentencing Guidelines" as it "affords the best recourse
for their proper interpretation." United States v. Philiposian,
267 F.3d 214, 218 (3d Cir. 2001) (quoting United States v.
Wong, 3 F.3d 667, 670 (3d Cir. 1993) (internal quotation
marks omitted). Generally, although "should" is "used to
express duty or obligation," "shall" is stronger in that it
expresses "[a] directive or requirement." WEBSTER'S II NEW
RIVERSIDE UNIVERSITY DICTIONARY 1078, 1070-71 (1988). In the
legal context, "should . . . ordinarily impl[ies] duty or
obligation; although usually no more than an obligation of
propriety or expediency, or a moral obligation," while shall
"[a]s used in statutes, contracts, or the like . . . is generally
imperative or mandatory" and is "inconsistent with a
concept of discretion." BLACK'S LAW DICTIONARY 1379, 1375
(6th ed. 1990); see also United States v. Tisdale, 248 F.3d
964, 977 (10th Cir. 2001); United States v. Maria, 186 F.3d
65, 70 (2d Cir. 1999).
The courts of appeals that have ruled in favor of a
mandatory reading reason that the application note is
mandatory "notwithstanding" its use of "should." United
States v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996); United
States v. Goldman, 228 F.3d 942, 944 (8th Cir. 2000). We
find their decision to give little weight to the Commission's
choice of words to be questionable in light of the basic
principles of statutory interpretation that require us to be

-- 18 of 31 --

guided by the enacting authority's choice of words. See,
e.g., United States v. Turkette, 452 U.S. 576, 580 (1981) ("If
the statutory language is unambiguous, in the absence of
`a clearly expressed legislative intent to the contrary, that
10

-- 19 of 31 --

language must ordinarily be regarded as conclusive.' "
(quoting Consumer Prod. Safety Comm'n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980)); Reves v. Ernst & Young,
507 U.S. 170, 177 (1993) (same). Moreover, the Sentencing
Commission is certainly capable of using language that is
clearly mandatory. It has, in fact, done so in the text of
S 5G1.3(a) and (b), where it used "shall" to mandate
consecutive and concurrent sentences in certain
circumstances. See Maria, 186 F.3d at 73. For these
reasons, we must give some weight to the drafters' choice of
the word "should."
That the term "should" is non-mandatory here is
bolstered by the rest of the language of Application Note 6.
The note specifically states that the sentence should be
imposed to run consecutively "in order to provide an
incremental penalty." If "should" were mandatory, then this
phrase would be superfluous. We are reluctant to embrace
a reading that has this result since, generally, statutes
should be read to give effect to every clause. See, e.g.,
Duncan v. Walker, 121 S.Ct. 2120, 2125, 533 U.S. 167
(2001) (quoting United States v. Menasche, 348 U.S. 528,
538-39 (1955) and Babbitt v. Sweet Home Chapter,
Communities for Great Ore., 515 U.S. 687, 698 (1995));
United States v. Higgins, 128 F.3d 138, 142 (3d Cir. 1997).
In response to this conundrum, several courts of appeals
have reasoned that the drafters were simply indicating that
in such a circumstance the appropriate incremental penalty
was a fully consecutive sentence, thus equating the two.
Alexander, 100 F.3d at 27; United States v. Gondek, 65
F.3d 1, 3 (1st Cir. 1995). In contrast, we read the phrase
"in order to provide an incremental penalty" as an invitation
to the district court to use its discretion to fashion a
sentence that runs consecutively to the extent necessary to
provide an incremental penalty. This seems to be a more
natural reading, particularly given its "fit" with the concept
of an "incremental penalty."
We understand "incremental penalty" as something

-- 20 of 31 --

additional, but not necessarily equivalent to a fully
consecutive sentence.6 This interpretation is supported in
_________________________________________________________________
6. We need not, and do not, embrace Swan's argument that an
"incremental penalty" means a "moderate additional penalty" in order to
11

-- 21 of 31 --

part by looking to how the guidelines have used the similar
phrase, "incremental punishment." Chapter 3, Part D,
which treats multiple counts, states that its purpose is "to
provide incremental punishment for significant additional
criminal conduct," the amount of which "declines as the
number of additional offenses increases." U.S.S.G. Ch. 3,
Pt. D, intro. comment; United States v. MacLeod , 80 F.3d
860, 868 (3d Cir. 1996) (citing U.S.S.G. Ch. 3, Pt. D for the
principle of "declining marginal punishment"); see also
Maria, 186 F.3d at 72 (citing Ch. 3 to define"incremental").
With this understanding, there is a range of possible
increments and, clearly, determining the size or extent of
the increment requires an exercise of discretion. In other
words, the application note contemplates some exercise of
discretion by, and subjective judgment of, the sentencing
court in fashioning an "increment" appropriate in the
particular situation. In fact, this seems to parallel the very
subsection to which the Note appends -- (c) -- in its use of
the language "to achieve a reasonable punishment" to
denote the exercise of discretion by the district court in
fashioning an appropriate sentence. If consecutive
sentences were mandatory, the exercise of discretion and
directive as to "incremental penalty" would have no place
and would be surplusage. Surely, that cannot be a
preferred result.
3. The Structure of S 5G1.3
We also find the drafters' placement of Application Note
6 as a note to S 5G1.3(c) to bear on its meaning. Subsection
(c) specifically allows concurrent, partially concurrent, or
consecutive sentences. While it is not unusual for a
guideline to give general discretion while a related
application note imposes limits on that discretion, as the
Courts of Appeals for the First and Fifth Circuits suggest,
see United States v. Alexander, 100 F.3d 24, 27 (5th Cir.
1996); United States v. Gondek, 65 F.3d 1, 3 (1st Cir.
_________________________________________________________________
understand it as something additional. App. at 24; see also Maria, 186

-- 22 of 31 --

F.3d at 72 (interpreting "incremental" as"modest"). Nothing in the
statute, legislative history, or Swan's arguments lends support to the
concept that "moderate" should be read into the statutory language.
12

-- 23 of 31 --

1995), the guideline scheme here undercuts that view. This
is because another guideline subsection-- S 5G1.3(a) --
already contains this limitation, mandating consecutive
sentences in specific situations.
Several courts that read Application Note 6 as mandating
totally consecutive sentences reason that an offense
committed while a defendant is actually serving an
undischarged term of imprisonment is essentially the same
as one committed while serving a term of imprisonment, as
is described in (a), and, thus, deserves consecutive
sentencing. See United States v. Goldman, 228 F.3d 942,
944 (8th Cir. 2000); Alexander, 100 F.3d at 27; Gondek, 65
F.3d at 3. But the drafters must not have read Application
Note 6 as these courts do, or they would have included that
concept in (a) or in a note to (a). Application Note 6 clearly
falls under, and pertains to, the discussion ofS 5G1.3(c).
That section speaks of a concurrent or consecutive, or
partially concurrent or consecutive, sentencing scheme.
Had the guideline drafters intended to mandate that the
two sentences are to run fully consecutively, Application
Note 6 is misplaced; its essence should have been stated in
S 5G1.3(a) itself, or in a note to that section.
4. The Relationship Between S 5G1.3 and S 7B1.3
Having examined the language of the application note
and its relationship to the guideline's main text, we turn to
the interaction of this section with the rest of the
guidelines. Because Application Note 6 cross-references
S 7B1.3,7 that section serves as another guidepost.
Section 7B1.3, like the chapter in which it appears,
addresses revocation of probation or supervised release. It
provides in pertinent part that "[a]ny term of imprisonment
imposed upon the revocation of probation or supervised
release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving."
_________________________________________________________________

-- 24 of 31 --

7. U.S.S.G. S 5G1.3, Application Note 6 ("See S 7B1.3 (Revocation of
Probation or Supervised Release) (setting forth a policy that any
imprisonment penalty imposed for violating probation or supervised
release should be consecutive to any sentence of imprisonment being
served or subsequently imposed)").
13

-- 25 of 31 --

U.S.S.G. S 7B1.3(f). This subsection is accompanied by
Application Note 4:
Similarly [to subsection (f)], it is the Commission's
recommendation that any sentence of imprisonment for
a criminal offense that is imposed after revocation of
probation or supervised release be run consecutively to
any term of imprisonment imposed upon revocation.
U.S.S.G. S 7B1.3(f), Application Note 4 (emphasis added).
Courts that have found consecutive sentences mandatory
have pointed to the policy of S 7B1.3(f) in support of their
conclusion. See, e.g., United States v. Gondek, 65 F.3d 1, 3
(1st Cir. 1995) (stating that the policy expressed in
S 7B1.3(f) "reinforces" its view that consecutive sentences
are mandatory). We read this provision as expressing a
preference for consecutive sentences, but are not persuaded
that this section counters our reading of Application Note 6
in the context of S 5G1.3(c). Interestingly, while the drafters
used the word "shall" in the guideline, they neutralized its
force with the Note that characterizes this as a
"recommendation." U.S.S.G. S 7B1.3(f), Application Note 4.
Moreover, not only does Application Note 6 to S 5G1.3(c)
describe what S 7B1.3 does as "setting forth a policy," but
also the guideline appears in Chapter 7, which is non-
binding, see U.S.S.G. Ch. 7, Pt. A; United States v.
Schwegel, 126 F.3d 551, 553 (3d Cir. 1997); United States
v. Brady, 88 F.3d 225, 229 n.2 (3d Cir. 1996). Like the
Courts of Appeals for the Tenth and Second Circuits, we
find this interpretation of S 7B1.3 persuasive. See United
States v. Tisdale, 248 F.3d 964, 979 (10th Cir. 2001);
United States v. Maria, 186 F.3d 65, 71-72 (2d Cir. 1999).
5. District Court Discretion
Our interpretation of Application Note 6 is also guided by
the policies reflected in our decision in United States v.
Spiers, 82 F.3d 1274 (3d Cir. 1996), in which we
interpreted a precursor to the current S 5G1.3(c) and

-- 26 of 31 --

application notes. The commentary to the guideline section
provided that "[t]o the extent practicable, the court should
consider a reasonable incremental penalty to be a sentence
for the instant offense that results in a combined sentence
of imprisonment that approximates the total punishment
14

-- 27 of 31 --

that would have been imposed . . . had all of the offenses
been federal offenses for which sentences were being
imposed at the same time." U.S.S.G. S 5G1.3(c), Application
Note 3 (1994). Based on the use of "should" and of the
qualifier "to the extent practicable" and the description of
the methodology as a means "to assist the court," we
determined that this language was permissive. Id. at 1277-
78; United States v. Holifield, 53 F.3d 11, 16 (3d Cir. 1995)
(agreeing with the Court of Appeals for the Ninth Circuit
that "should consider" falls somewhere between"may
consider" and "shall impose").8 Similarly, the current
provision uses the term "should" in a context that supports
its permissive meaning.
Spiers is instructive not only because it presents an
analogous issue regarding interpretation, but also because
in it we expressed our preference for giving the district
court sentencing discretion.9 Specifically, in Spiers we
_________________________________________________________________
8. We were not alone; most of the courts of appeals reached the same
conclusion. See, e.g., United States v. Hernandez, 64 F.3d 179, 183 (5th
Cir. 1995) ("[D]ue to the permissive language of the commentary, we
have decided that the suggested methodology is advisory only. . . . If the
district court chooses not to follow the methodology, it must explain why
the calculated sentence would be impracticable in that case or the
reasons for using an alternate method."); United States v. Whiteley, 54
F.3d 85, 89-90 (2d Cir. 1995) (same); United States v. Redman, 35 F.3d
437, 441 (9th Cir. 1994) (same). They differ now in holding that the new
version lacks such qualifications or reservations. Compare United States
v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996) (distinguishing Hernandez),
with United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999) (citing
Whiteley in rejecting the government's argument that "should" means
"shall" in the guidelines).
9. Appellant points to 18 U.S.C. S 3584 as stating this preference. See 18
U.S.C. S 3584 ("[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 . . . ."). Reliance on this
statute as support for the position that the District Court had discretion
here is misplaced, however, in light of our decision in United States v.

-- 28 of 31 --

Higgins, 128 F.3d 138 (3d Cir. 1997). There we found no inherent
conflict between S 3584's grant of discretion and "the limitation of that
discretion in certain instances by the Guidelines," specifically by
S 5G3.1(a). Id. at 142. We reasoned that the guidelines clearly do not
trump the statute but that the two must be read harmoniously where
the text permits. Id. at 141-42. The same reasoning applies in
connection with S 5G1.3(c).
15

-- 29 of 31 --

rejected the idea that we should read the guideline as
mandatory and then permit the courts to exercise
discretion in granting a departure. Id. at 1278-79 (rejecting
United States v. Duranseau, 26 F.3d 804 (8th Cir. 1994)
and United States v. Brewer, 23 F.3d 1317 (8th Cir. 1994)).
Surely there will be cases where that is necessary and
prescribed, but where the guideline language seems to give
discretion in the first instance, we should recognize that
discretion, consistent with Spiers.
Accordingly, we view Application Note 6 to indicate the
Commission's strong preference for imposing a consecutive
sentence to the extent necessary to provide an incremental
penalty. We recognize that the application note uses
"should" and not "may," and do not wish to erode the
difference between the two. Cf. Maria, 186 F.3d at 71
(noting that the district court must consider this difference
in determining the appropriate sentence). Spiers is
instructive here too. There, we required district courts to
undergo the required calculation, noting that they could
exercise discretion not to impose the sentence thus
calculated but should explain their reasoning with
reference to the factors listed in S 3553(a). Spiers, 82 F.3d
at 1280. No departure from the guidelines was necessary to
achieve this result, only the exercise of discretion in
keeping with the dictates of the statute. Id. The same
approach is appropriate in this context. The district court
must consider the guideline's preference, but should also
exercise its discretion and be guided by its own view of
what is needed in the way of an incremental penalty in the
particular setting, mindful that its reasoning in that regard
should be part of its sentencing determination.
III.
For the foregoing reasons, we will VACATE the District
Court's Judgment and Commitment Order and REMAND
for resentencing in accordance with this opinion.
A True Copy:

-- 30 of 31 --

Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
16

-- 31 of 31 --