United States of America v. Kenneth Randolph

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3493
UNITED STATES OF AMERICA
v.
KENNETH RANDOLPH,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 02-00114-1)
Honorable Stewart Dalzell, District Judge
Argued September 8, 2003
BEFORE: BARRY, BECKER, and GREENBERG, Circuit Judges
(Filed: October 20, 2003)
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney
Senior Appellate Counsel
George J. Shotzbarger (argued)
Special Assistant United States Attorney
615 Chestnut Street

-- 1 of 14 --

2
Suite 1250
Philadelphia, Pa. 19106
Attorneys for Appellee
David L. McColgin (argued)
Assistant Federal Defender
Supervising Appellate Attorney
Maureen Kearney Rowley
Chief Federal Defender
Federal Court Division
Defender Association of Philadelphia
Suite 540 West - Curtis Center
Independence Square West
Philadelphia, Pa. 19106
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on Kenneth Randolph’s (“Randolph”)
appeal from a judgment of conviction and sentence entered in this criminal case on
September 9, 2002. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 and
we have jurisdiction under 28 U.S.C. § 1291.
The background of the case is as follows. On February 26, 2002, a grand jury
indicted Randolph for possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1). Randolph previously had been convicted in the Court of Common
Pleas of Philadelphia County of armed robbery, burglary and criminal conspiracy arising

-- 2 of 14 --

3
out of a March 24, 1994 home invasion gunpoint robbery. On M arch 27, 1995, the state
court sentenced him to five to ten years imprisonment and, with credit for time served
before the sentencing, he had served five years in prison as of March 25, 1999, on the
state sentence. In late May 1999, the Pennsylvania Board of Probation and Parole
(“parole board”) directed him to serve nine months at GPCCC/Kintock (“Kintock”), a
halfway house in Philadelphia. On July 17, 1999, Randolph absconded from Kintock,
leading Robin Taylor, Randolph’s parole agent, to obtain a warrant for his arrest.
After receiving a tip from a confidential informant as to Randolph’s whereabouts
and potential involvement in further criminal activity including drug trafficking and a
shooting, Taylor and several other parole agents on the morning of April 25, 2000, went
to the home of Randolph’s sister, Felicia Randolph, looking for him. Ms. Randolph’s
daughter Melissa answered the door and then Ms. Randolph opened the door and
permitted the agents to enter. She informed the agents that her brother was upstairs in his
bedroom. Agents Howard White, Joseph Gillespie and Taylor proceeded up the stairs to
arrest Randolph. As they walked up the stairs, Randolph walked into the hallway from
one of the bedrooms wearing only boxer shorts. Taylor handcuffed him and she and
Gillespie entered the bedroom that Randolph just had exited while White remained with
Randolph in the hallway. In the bedroom they saw a cell phone and pager in plain view.
Randolph’s possession of these items was a violation of the conditions of his parole. The
agents then lifted up the bed and frame in Randolph’s bedroom and discovered a handgun

-- 3 of 14 --

1Though Randolph’s act of absconding and his possession of the cell phone and pager
were treated as technical parole violations, we think that most persons hardly would
consider his flight to be a “technical” matter. It appears that in Pennsylvania a violation
of a condition of parole is considered “technical” but a conviction of a crime while on
parole is categorized separately. See Gundy v. Commonwealth Bd. of Prob. & Parole,
478 A.2d 139, 140 (Pa. Commw. Ct. 1984). Thus, a parolee may be a “technical violator”
or a “convicted violator,” or, as here, both. Id.
2Randolph also moved to suppress statements he made that day but at the hearing on
the motion to suppress, he withdrew his motion to suppress the statements and we
therefore are not concerned with them.
4
and drug paraphernalia. On September 18, 2000, the parole board recommitted Randolph
to state prison for 18 months for technical parole violations.1
After his indictment in February 2002, for possession of a weapon by a convicted
felon, Randolph filed a motion to suppress the physical evidence obtained on April 25,
2000.2 The district court held a hearing on Randolph’s motion to suppress and then in a
Memorandum and Order dated M ay 28, 2002, denied the motion. United States v.
Randolph, 210 F. Supp. 2d 586 (E.D. Pa. 2002). The district court found that the search
of Randolph’s bedroom was permissible for several different reasons. First, the district
court held that as a parole absconder Randolph was not entitled to Fourth Amendment
protections with respect to the search. In the alternative, the court found that the agents
had reasonable suspicion to search the bedroom, the standard the Supreme Court adopted
in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587 (2001), for searches of
probationers. The district court further concluded that the search Taylor and Gillespie
conducted qualified as either a search incident to a lawful arrest or a proper protective

-- 4 of 14 --

5
sweep of Randolph’s bedroom.
On June 3, 2002, Randolph entered a conditional plea of guilty to possession of a
weapon by a convicted felon, pursuant to Federal Rule of Criminal Procedure 11(a)(2)
and United States v. Zudick, 523 F.2d 848, 851-52 (3d Cir. 1975). The district court
subsequently sentenced Randolph to a 42-month custodial term. After colloquy with the
attorneys regarding whether the sentence should be consecutive to or concurrent with the
additional state time that the parole board would require Randolph to serve for the parole
violation beyond the 18 months it already had ordered Randolph to serve, the court stated
that the sentence “will be consecutive to whatever back-time the Commonwealth of
Pennsylvania deems appropriate in this case.” App. at 365. In the subsequent judgment
of conviction and sentence, the district court, in accordance with its prior statement at the
sentencing, ordered that “[t]he sentence imposed on this charge is to run consecutively
with any back time the defendant may be facing in the Commonwealth of Pennsylvania.”
App. at 5. Of course, the sentence also was to be consecutive to the 18-month term the
parole board already had assessed. After the district court sentenced him, the parole
board held a revocation hearing and assessed Randolph an additional six months of state
time predicated on his conviction in federal court.
On appeal Randolph challenges the district court’s denial of his motion to
suppress as well as the authority of the district court to sentence him to a term consecutive
to any future time the Commonwealth of Pennsylvania would order him to serve. We

-- 5 of 14 --

3Notwithstanding the colloquy regarding whether the sentences would be concurrent or
consecutive, Randolph acknowledges in his brief that we should apply the plain error
standard on this point.
6
review the district court’s denial of a defendant’s motion to suppress for clear error with
respect to its underlying factual findings and we exercise plenary review over the district
court’s application of the law to those facts. United States v. Perez, 280 F.3d 318, 336
(3d Cir. 2002) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)).
Inasmuch as Randolph did not suggest in the district court that the court could not run the
sentences consecutively with respect to state time to be imposed in the future, we review
the district court’s direction that he serve his federal sentence consecutively to any
subsequent state sentence for his parole violation on a plain error basis.3 Fed. R. Crim. P.
52(b); United States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002). Under this standard,
in order to grant an appellant relief “we must find that (1) an error was committed; (2) the
error was plain, i.e., clear or obvious; and (3) the error affected the [appellant’s]
substantial rights.” United States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001). In
addition, in exercising our discretionary authority to grant relief if we find plain error we
are “guided by whether the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id.
We hold that the district court properly denied Randolph’s motion to suppress.
Even assuming that Randolph was entitled to the same level of Fourth Amendment
protection afforded to probationers under Knights, 534 U.S. 112, 122 S.Ct. 587, it is clear

-- 6 of 14 --

7
that the parole agents had reasonable suspicion to search the bedroom Randolph occupied
in his sister’s home. Randolph was a state parolee and fugitive who had absconded from
a halfway house. Furthermore, a confidential informant had advised Taylor of
Randolph’s location and informed her that Randolph recently had been involved in drug
trafficking and a shooting. To the extent that the informant was correct as to Randolph’s
whereabouts on April 25, 2000, he demonstrably was reliable as the agents found
Randolph at the place the informant said he would be. In the circumstances, it surely was
not unreasonable for the agents to search Randolph’s bedroom when they were
apprehending him. Indeed, we think that they probably would have been remiss if they
had not made the search.
Randolph also challenges the district court’s decision to sentence him
“consecutively with any back time the defendant may be facing in the Commonwealth of
Pennsylvania” with respect to the additional six months the parole board imposed
following imposition of the federal sentence. App. at 5.
18 U.S.C. § 3584(a) (emphasis added) states:
If multiple terms of imprisonment are imposed
on a defendant at the same time, or if 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, except that the terms may not
run consecutively for an attempt and for another
offense that was the sole objective of the
attempt. Multiple terms of imprisonment
imposed at the same time run concurrently

-- 7 of 14 --

8
unless the court orders or the statute mandates
that the terms are to run consecutively. Multiple
terms of imprisonment imposed at different
times run consecutively unless the court orders
that the terms are to run concurrently.
Randolph argues that he was not “already subject” to the six-month assessment when the
district court sentenced him as the parole board made that assessment at a later date.
There is a split of opinion among the courts of appeals as to whether a district
court may order a sentence to run consecutively to a sentence a state court has not yet
imposed. Compare Romandine v. United States, 206 F.3d 731, 737-39 (7th Cir. 2000)
(stating that district court may not require its sentence to be served consecutively to a
state sentence that will be imposed in the future because by its terms section 3584(a) only
provides such authority in cases involving “an undischarged term of imprisonment”),
United States v. Quintero, 157 F.3d 1038, 1039-41 (6th Cir. 1998) (holding that section
3584(a) “does not authorize district courts to order a sentence to be served consecutively
to a not-yet-imposed state sentence”), and United States v. Clayton, 927 F.2d 491, 492-93
(9th Cir. 1991) (finding that “Congress did not vest federal courts with the authority to
impose a federal sentence to run consecutively to a state sentence that has not yet been
imposed.”), with United States v. Williams, 46 F.3d 57, 58-59 (10th Cir. 1995) (holding
that district court had the authority under section 3584(a) to order defendant to serve his
federal sentence consecutively to any sentence of imprisonment imposed in two state
cases pending at the time of his federal sentencing and did not abuse its discretion in

-- 8 of 14 --

9
doing so), United States v. Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993) (finding that
district court did not interfere with the state’s sentencing authority when it ordered
defendant’s federal sentence to be served consecutively to an unimposed state sentence
where defendant “deliberately and admittedly committed his federal offense with the
intention of . . . avoiding state incarceration”), and United States v. Brown, 920 F.2d
1212, 1215-17 (5th Cir. 1991) (holding that district court did not abuse its discretion “in
determining that Brown’s crime warranted a sentence consecutive to any sentence
imposed in pending state proceedings”).
The government in effect views this conflict as immaterial in the present context
as it maintains that inasmuch as the Court of Common Pleas initially sentenced Randolph
in 1995 to a five to ten-year custodial term, he already was subject to an undischarged
term of imprisonment under section 3584(a) that included the six months the parole board
later assessed when the district court sentenced him. Therefore, according to the
government, the additional time the parole board assessed on Randolph both by reason of
his technical violations of the conditions of parole and because he committed a crime
while on parole, including the six-month period the parole board assessed following his
district court sentencing, should be regarded as having been imposed earlier by the state
court. Thus, in the government’s view, the sentence the district court imposed was lawful
inasmuch as the district court undoubtedly had the authority to require Randolph to serve
his federal sentence consecutively to his previously imposed term of state imprisonment.

-- 9 of 14 --

10
Viewing this matter under state law, the government’s argument has considerable
force. In Gundy v. Commonwealth Board of Probation & Parole, 478 A.2d 139 (Pa.
Commw. Ct. 1984), a parolee who had been convicted of another crime while on parole
petitioned for review of the parole board’s order recommitting him as a technical violator
and as a convicted violator. Among other things, Gundy claimed that the parole board’s
actions in recommitting him violated double jeopardy protections. The court disagreed,
as it indicated that “the [parole board’s] revocation proceedings are not part of a criminal
prosecution but rather basically [are] administrative proceedings. . . .” Id. at 141 (citing
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972)). The Gundy court then went
on to state that
[t]he [parole board’s] imposition of backtime was not the imposition of
a new sentence but merely the directed completion of the original
judicially-imposed sentence. The sentence imposed for a criminal
offense is the maximum sentence and the minimum sentence merely sets
the date prior to which a prisoner may not be paroled.
Gundy, 478 A.2d at 141 (citing McClure v. Commonwealth Bd. of Prob. & Parole, 461
A.2d 645 (Pa. Commw. Ct. 1983)).
Yet notwithstanding Gundy the government’s argument is not necessarily
correct. Though it is true that the Court of Common Pleas sentenced Randolph in 1995 to
serve a five to ten-year custodial term and that he served five years in state prison prior to
being paroled to Kintock, thereafter the parole board rather than the court had the
authority to order Randolph to serve additional periods of custodial time for his parole

-- 10 of 14 --

11
violations or to revoke his parole. As a result, at the time of his federal sentencing we
question whether Randolph was “already subject” to the six months of imprisonment the
parole board later ordered him to serve within the meaning of section 3584(a). We
express this reservation as Congress may have intended that the term “already subject” be
viewed from a national perspective not dependent on state law with respect to how the
imposition of an assessment of an additional period of incarceration on a parole violation
is viewed. But, as we shall explain, we need not decide whether the government is
correct because, regardless of Gundy, Randolph is not entitled to relief.
Section 5G1.3 of the United States Sentencing Guidelines addresses the
imposition of a sentence on a defendant subject to an undischarged term of imprisonment.
In particular Application Note 6 states in pertinent part:
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. § 5G1.3, Application Note 6 (2001) (emphasis added) (citation omitted).
Randolph acknowledges that the district court could provide, as it did, that its
sentence would be consecutive to the additional 18-month period of incarceration the
parole board earlier had assessed by reason of his technical parole violations. Thus, the
dispute here centers on the fact that after his federal sentencing, the parole board required

-- 11 of 14 --

12
Randolph to serve an additional six months. But as of the time of his federal sentencing,
his “probation, parole, or supervised release” had not been revoked as to the six months.
Accordingly, inasmuch as Application Note 6 is not forward looking, it is questionable
whether it gave the district court the authority to order Randolph to serve the sentence it
imposed consecutively to any additional time the parole board thereafter might impose.
See United States v. Rosario, 134 F. Supp. 2d 661, 667 (E.D. Pa. 2001) (“[A]pplication
note 6 ‘by its terms . . . applies only when the defendant has had his probation revoked
before sentencing on the new offense.’”) (alteration in original) (quoting United States v.
Vaughn, 211 F.3d 1279 (table), No. 99-7012, 2000 WL 472843, at *2 (10th Cir. Apr. 20,
2000)). Thus, notwithstanding Gundy, it may not be possible to justify the district court’s
sentence under U.S.S.G. § 5G1.3 on the theory that the state had imposed the six-month
state term earlier. Accordingly, it might be thought that we would have to address the
conflict among the courts of appeals that we identified above as to whether a district court
may order a sentence to run consecutively to a not yet court-imposed state sentence.
Yet, as the Court of Appeals for the Seventh Circuit recognized in Romandine,
the division of opinion as to whether a district court has the authority to order its sentence
to be served consecutively to a later imposed state prison term is illusory because of the
last sentence in section 3584(a), which states that “[m]ultiple terms of imprisonment
imposed at different times run consecutively unless the court orders that the terms are to
run concurrently.” See Romandine, 206 F.3d at 738 (“the final sentence of § 3584(a)

-- 12 of 14 --

13
makes the federal sentence presumptively consecutive in all unprovided-for cases”).
Therefore, if the district court had not addressed whether Randolph’s sentence would be
consecutive or concurrent to a later imposed period of incarceration for his parole
violation, section 3584(a) would have required that the sentences be consecutive as they
unquestionably were multiple terms of imprisonment imposed at different times
regardless of whether we view the six months as having been imposed by the court before
or the parole board after the federal sentencing. As a result, Randolph would have had to
serve his federal and state sentences consecutively even if the district court had not
ordered him to do so.
We emphasize that we are not holding that the parole board’s action in requiring
Randolph to serve the six-month term is a sentence within the meaning of section 3584(a)
or perhaps more precisely in the language of that section a “term[ ] of imprisonment.”
Rather, we have no need to determine whether it should be characterized in that way. Our
point is that whether the six-month term is, in harmony with Gundy, regarded as having
been imposed by the state court or whether it is regarded as having been imposed by the
parole board the district court did not commit plain error in directing that the sentence it
imposed be served consecutively to that six-month term.
In the circumstances, even assuming that Gundy is not applicable here and that
the district court did not have the authority to order Randolph to serve his two terms of
imprisonment, i.e., the federal sentence and the six-month state term, consecutively, such

-- 13 of 14 --

14
error certainly does not constitute plain error, inasmuch as it did not affect the length of
time Randolph is to spend in custody. See Knight, 266 F.3d at 206-07. As we made clear
in Barden v. Keohane, 921 F.2d 476, 483-84 (3d Cir. 1991), and the Court of Appeals for
the Seventh Circuit explained in Romandine, a defendant in Randolph’s position must
serve his state and federal terms of imprisonment consecutively unless he can convince
the Bureau of Prisons to designate the state prison as “the official detention facility at
which the sentence is to be served.” 18 U.S.C. § 3585(a); 18 U.S.C. § 3621(b); Barden,
921 F.2d at 481-84; Romandine, 206 F.3d at 738-39. If the Bureau of Prisons makes such
a designation, the federal and state sentences effectively will be concurrent. But
regardless of what the Bureau of Prisons may or may not do, the district court’s direction
that the sentence be served consecutively in itself made no difference and consequently
could not be a plain error.
Accordingly, we will affirm the judgment of conviction and sentence of the
district court entered September 9, 2002.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge

-- 14 of 14 --