United States of America v. Timothy Milton Vales

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-3505
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UNITED STATES OF AMERICA
v.
TIMOTHY MILTON VALES,
Appellant
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Appeal from the Order of the United States District Court
for the Western District of Pennsylvania
(Crim. No. 03-cr-00014)
District Judge: Honorable Gary L. Lancaster
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Submitted Under Third Circuit L.A.R. 34.1(a)
on March 10, 2008
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Before: FUENTES, CHAGARES, and ALDISERT, Circuit Judges
(Filed: April 4, 2008)
OPINION
FUENTES, Circuit Judge:
Timothy Vales appeals from his 27-month post-Booker resentencing following a
guilty plea for bank fraud in violation of 18 U.S.C. § 1344(1). He argues that the District

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction1
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
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Court erred by not utilizing United States Sentencing Guidelines (“Guidelines”) § 5G1.3
to reduce his sentence by the same amount of time already served in state custody for
violating the terms of his probation for unrelated convictions. In the alternative, Vales
alleges that the District Court erred by believing that it was incapable of granting such
discretionary relief. For the reasons stated below, we will affirm.1
I.
Because we write exclusively for the parties, we only discuss the facts and
proceedings to the extent necessary for resolution of this case. At the time Vales pled
guilty to one count of bank fraud on September 26, 2003, he was on probation for several
state law offenses in Pennsylvania. The bank fraud conviction violated the terms of
Vales’ state probation, prompting the Allegheny County Court of Common Pleas to
revoke the probation and sentence him to a term of 30 months’ to 6 years’ imprisonment
(“state sentence”). Meanwhile, Vales appealed his initial bank fraud sentence of 27
months’ imprisonment and 5 years’ supervised release, and we summarily remanded for
resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Vales began
serving the state sentence before he was resentenced in this case. At resentencing, Vales
again received a 27-month prison sentence (“federal sentence”). He requested, and was
denied, a reduction in the federal sentence to reflect time already served in state custody,

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The District Court used the 2002 edition of the Guidelines. Section 5G1.3,2
entitled “Imposition of a Sentence on a Defendant Subject to an Undischarged Term of
Imprisonment,” states:
(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.
Guidelines § 5G1.3 (2002).
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pursuant to Guidelines § 5G1.3(b) and (c). However, the District Court used its2
discretion to run the federal sentence concurrently with the state sentence going forward.
On appeal, Vales argues that the District Court committed legal error by not
applying § 5G1.3(b) to reduce the federal sentence; he further argues that the District
Court failed to recognize that such a reduction was within its discretion pursuant to §
5G1.3(c). We exercise plenary review over a district court’s interpretation of the
Guidelines, reviewing its factual determinations for clear error. United States v. Grier,
475 F.3d 556, 570 (3d Cir. 2007) (en banc). A district court’s decision to impose a
concurrent sentence is reviewed for an abuse of discretion. United States v. Saintville,

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218 F.3d 246, 248 (3d Cir. 2000). We review a district court’s ultimate determination of
a sentence for reasonableness. United States v. Cooper, 437 F.3d 324, 326-27 (3d Cir.
2006).
II.
A.
Vales argues that the District Court erred in not applying Guidelines § 5G1.3(b) to
backdate the federal sentence to the date he began serving the state sentence. However, §
5G1.3(b), by its own terms, only applies if “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.” Vales was on probation for state law
convictions unrelated to his later conviction for bank fraud. His “undischarged term of
imprisonment,” for violating the terms of his probation, “resulted from” his state law
convictions for the purposes of § 5G1.3(b). See United States v. Chasmer, 952 F.2d 50,
52 (3d Cir. 1991) (“[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 guidelines § 5G1.3. By a parity of reasoning we will apply the
same rule when the offense is committed by a defendant on probation.” (citation
omitted)); United States v. Garcia-Hernandez, 237 F.3d 105, 110 (2d Cir. 2000)
(“[W]hen a criminal defendant is imprisoned as a result of his violation of the terms of

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his parole, the ‘offense’ that ‘results’ in his imprisonment is, for the purposes of §
5G1.3(b), the underlying prior offense of conviction, not the conduct violative of his
parole conditions.”).
This outcome is supported by the Application Notes to § 5G1.3. Application Note
6 states that “[i]f the defendant was on . . . state probation . . . at the time of the instant
offense, and has had such probation . . . revoked, the sentence for the instant offense
should be imposed to run consecutively to the term imposed for the violation of
probation . . . .” Guidelines § 5G1.3, App. Note 6 (2002).
In sum, we conclude that the District Court did not err in refusing to apply §
5G1.3(b) to backdate Vales’ federal sentence to account for the state sentence.
B.
Vales also argues that the District Court erred by failing to recognize that it had
the discretion to adjust the federal sentence under § 5G1.3(c). Vales asserts that if the
District Court was aware that it had this discretion, it would have reduced the federal
sentence because Vales had been incarcerated continuously since his arrest for bank
fraud.
Contrary to Vales’ contention, the District Court clearly understood its discretion
under § 5G1.3(c). During the resentencing hearing, counsel for Vales argued for a
concurrent sentence and stated to the District Court that it “has the legal authority under .
. . [§] 5G1.3 . . . to order and fashion a sentence that runs concurrent with the state

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sentence.” App. 62. However, the District Court replied that the sentence being served
for the probation violation was a result of “other charges,” App. 63, and further stated
that it “will not backdate the date of the sentence as requested by the Defendant,” App.
68-69. However, the District Court did exercise its discretion and impose a federal
sentence concurrent with the state sentence going forward.
Therefore, we conclude that the District Court recognized, and did not abuse, its
discretion under § 5G1.3(c).
C.
Having addressed Vales’ arguments on appeal, we further conclude that the
federal sentence of 27 months’ imprisonment was reasonable. The record is clear that
the District Court adequately considered the sentencing considerations in 18 U.S.C. §
3553(a) and ultimately imposed a sentence at the bottom of the advisory guideline range.
In particular, the District Court noted the “sheer number” of crimes Vales has committed,
dating back to childhood. App. 71.
III.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.

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