United States of America v.  James Douglas Smith

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4358 
JAMES DOUGLAS SMITH,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4359 
JAMES DOUGLAS SMITH,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4360 
JAMES DOUGLAS SMITH,
Defendant-Appellant. 
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:05-cr-00466-TLW-1; 4:05-cr-00736-TLW; 4:05-cr-00930-TLW)
Argued: November 29, 2006
Decided: December 29, 2006
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.

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Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Widener and Judge Niemeyer joined.
COUNSEL
ARGUED: Michael Allen Meetze, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Flor-
ence, South Carolina, for Appellant. Arthur Bradley Parham, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Florence, South Carolina, for Appellee. ON BRIEF:
Reginald I. Lloyd, United States Attorney, Columbia, South Carolina,
for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
James Douglas Smith, convicted of five counts of bank robbery,
challenges his sentence on two grounds. He asserts that the district
court erred in (1) failing to sentence him at the lowest end of the
applicable United States Sentencing Guidelines range; and (2) impos-
ing the condition that its sentence run consecutively to any future,
not-yet-imposed sentence. Although the district court did not err in
failing to sentence Smith at the lowest end of the applicable guide-
lines range, it did err in attempting to impose a sentence consecutively
to future sentences. Because the court did not have authority to
require that its sentence run consecutively to any future sentence, we
vacate and remand for resentencing.
I.
In 2005, Smith pleaded guilty to five counts of bank robbery, in
violation of 18 U.S.C. § 2113(a) (2005). The Presentence Investiga-
tion Report calculated Smith’s guidelines range as 84-105 months on
each of the counts. At sentencing, the district court concluded that
Smith’s extensive criminal record warranted an upward departure
under U.S.S.G. § 4A1.3 (2005) to the resulting guidelines range of
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151-188 months. The court then sentenced Smith to 180 months on
each of the five counts, with the sentences to run concurrently. The
court also ordered that the sentence imposed "will be consecutive to
any other sentence imposed in any other case, or on any other proba-
tion revocation or whatever." Smith appeals from the district court’s
order imposing a 180-month sentence on each count, and directing
that the 180-month sentences run consecutively to any other sentence.
II.
Smith contends that this court’s holding in United States v. Green,
436 F.3d 449, 457 (4th Cir. 2006) — that sentences within a properly
calculated guidelines range are "presumptively reasonable" —
requires that a district court always sentence a defendant to the lowest
term within the relevant guidelines range. Accordingly, Smith main-
tains that the district court erred when it sentenced him to 180 months
instead of 151 months, which was the lowest possible sentence in the
applicable guidelines range of 151-188 months.
In Green, we also instructed district courts to consider the factors
set forth in 18 U.S.C. § 3553(a)(2006) when imposing a sentence. Id.
at 455. That provision requires that a court "impose a sentence suffi-
cient, but not greater than necessary," to achieve the sentencing goals
outlined in the statute. 18 U.S.C. § 3553(a). Smith reads Green’s
"presumptively reasonable" holding in tandem with this portion of
§ 3553(a) to require district courts to sentence defendants to the low-
est end of the applicable guidelines range. Smith argues that under
Green all of the available sentences within a properly calculated
guidelines range are presumptively reasonable. Thus, according to
Smith, the lowest sentence within the presumptively reasonable range
is "sufficient" to comply with § 3553(a)’s sentencing goals, and all
other sentences within the range are "greater than necessary" and
therefore unreasonable.
Smith’s argument, while clever, has no merit. The holding in
Green that a sentence within the properly calculated guidelines range
is presumptively reasonable does not mean that the sentencing judge
must conclude that the lowest possible sentence within that range is
actually sufficient to satisfy § 3553(a)’s goals. Rather, Green requires
a district court to calculate the appropriate guidelines range, and then
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to consider the factors outlined in § 3553(a) to determine which sen-
tence within that range, if any, is sufficient, but not greater than nec-
essary, to comply with § 3553(a). Smith’s argument thus rests on a
logical fallacy: the fact that a sentence at the lowest end of the guide-
lines range could be reasonable if the sentencing judge concluded it
was sufficient does not mean that the sentencing judge must conclude
that it is sufficient. It is the sentencing judge who must initially deter-
mine what is sufficient. To hold that the lowest sentence in an appli-
cable guidelines range is always sufficient would rob § 3553(a) of its
force.
Here, the district court properly followed the methodology we
articulated in Green: it calculated the proper guidelines range; consid-
ered the § 3553(a) factors; concluded that an upward departure better
served the relevant sentencing purposes set forth in § 3553(a); and
then articulated its reasons for selecting the 180-month sentence. It
explained, "I’ve chosen this particular point based on the nature of the
conduct in regards to these five charges and as well, based on the
prior record of this defendant." The district court properly followed
Green and Smith’s sentence of 180 months was reasonable.
III.
Smith also contends that the district court erred when it ordered
that "the sentence [it] imposed in this case based on these five convic-
tions will be consecutive to any other sentence imposed in any other
case, or on any other probation revocation or whatever." At the time
of Smith’s sentencing in the District of South Carolina, he had a
pending supervised release violation in the Eastern District of North
Carolina. However, no sentence had been imposed in that proceeding,
nor was Smith subject to an undischarged sentence in any other state
or federal proceeding. Thus, the district court’s order that its sentence
run consecutively to "any other sentence in any other case" can only
apply to a future, not-yet-imposed sentence. According to Smith, the
district court did not have authority to order that its sentence be con-
secutive to any future sentence. We agree.
Whether the district court had this authority is a question of statu-
tory construction, which we review de novo. See Holland v. Pardee
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Coal Co., 269 F.3d 424, 430 (4th Cir. 2001). The statute in question,
18 U.S.C. § 3584 (2005) states:
(a) Imposition of concurrent or consecutive terms.—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 . . . . Multiple terms of imprisonment imposed
at the same time run concurrently 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.
(b) Factors to be considered in imposing concurrent or
consecutive terms.—The court, in determining whether the
terms imposed are to be ordered to run concurrently or con-
secutively, shall consider, as to each offense for which a
term of imprisonment is being imposed, the factors set forth
in section 3553(a).
The plain language of this statute does not grant a district court
authority to order that its sentence run consecutively to a future sen-
tence. Rather, the statute gives a court power to determine whether a
sentence will "run concurrently or consecutively" only when a defen-
dant is (1) sentenced to "multiple terms of imprisonment . . . at the
same time," or (2) "already subject to an undischarged term of impris-
onment." 18 U.S.C. § 3584(a) (emphasis added).
Because the district court in this case sentenced Smith to multiple
terms of imprisonment for bank robbery at the same time, it had
authority under § 3584(a) to run the five sentences for bank robbery
consecutively or concurrently. However, the statute does not permit
the court to decide whether any future sentence would be consecutive
or concurrent to those five sentences. Rather, when sentences are
imposed at different times, § 3584(a) only authorizes a court to deter-
mine whether a sentence should be consecutive or concurrent if the
defendant is "already subject to an undischarged term of imprison-
ment." 18 U.S.C. § 3584(a) (emphasis added). Another sentence must
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exist at the time a district court imposes its sentence; a court cannot
impose its sentence consecutively to a sentence that does not yet exist.
The better-reasoned cases from our sister circuits have reached the
same conclusion. See Romandine v. United States, 206 F.3d 731, 738
(7th Cir. 2000) (holding that "§ 3584(a) allows the district judge to
specify the sequence of service [of terms of imprisonment] only when
sentences are imposed at the same time, or the other sentence is ‘an
undischarged term of imprisonment’ to which the defendant is
‘already subject’"); United States v. Quintero, 157 F.3d 1038, 1039
(6th Cir. 1998) (holding that "§ 3584(a) does not authorize district
courts to order a sentence to be served consecutively to a not-yet-
imposed state sentence"); United States v. Clayton, 927 F.2d 491, 492
(9th Cir. 1991) ("[A]s a matter of statutory construction, we interpret
the ‘already subject to’ provision of section 3584(a) as only granting
federal courts the power to sentence consecutive to a previously
imposed term of imprisonment." (emphasis added)).
Nevertheless, the Government argues to the contrary by pointing to
the presumption in the last sentence of § 3584(a): "[m]ultiple terms
of imprisonment imposed at different times run consecutively unless
the court orders that the terms are to run concurrently." The Govern-
ment contends that this presumption means that, unless a district court
orders otherwise, a sentence will run consecutively to any sentence
imposed at a "different time[ ]," even one imposed in the future.
According to the Government, the statutory presumption thus indi-
cates that a sentence can be imposed consecutively to a future nonex-
istent sentence. See Brief of Appellee at 10-11. In United States v.
Williams, 46 F.3d 57, 58-59 (10th Cir. 1995), the Tenth Circuit relied
on similar reasoning to hold that § 3584(a) permits a federal court to
order a sentence "to run consecutively to [any state sentence in] any
case then pending in Arkansas or Oklahoma."*
*The Government also relies on other cases holding that a federal dis-
trict court has authority to order that its sentence run consecutively to an
unimposed future state sentence. See United States v. Andrews, 330 F.3d
1305, 1307 (11th Cir. 2003); United States v. Mayotte, 249 F.3d 797, 799
(8th Cir. 2001); United States v. Brown, 920 F.2d 1212, 1217 (5th Cir.
1991); Salley v. United States, 786 F.2d 546, 547 (2d Cir. 1986). Because
none of these cases fully considers the plain language of § 3584, we do
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This interpretation ignores the limiting language contained in the
statute: the presumption only applies when a defendant is "already
subject to an undischarged term of imprisonment." 18 U.S.C.
§ 3584(a). Thus, the presumption does not take effect unless a court
imposes a sentence after a defendant is already subject to an undis-
charged term of imprisonment. It cannot apply before a defendant has
received some unknown future sentence, as suggested by the Govern-
ment. See Quintero, 157 F.3d at 1040 ("‘As defendant was neither
subjected to multiple terms of imprisonment at the same time nor was
he already subject to his state sentence when his federal sentence was
imposed, the presumption that terms of imprisonment imposed at dif-
ferent times run consecutively does not apply to him.’") (quoting
McCarthy v. Doe, 146 F.3d 118, 121-22 (2d Cir. 1998)).
Moreover, the Government’s interpretation of § 3584(a) would put
that section at odds with the remainder of the statute. Section 3584(b)
directs a district court, when "determining whether the terms imposed
are to be ordered to run concurrently or consecutively," to consider
"the factors set forth in section 3553(a)." 18 U.S.C. § 3584(b). Section
3553(a), in turn, requires a court to consider, inter alia, "the nature
and circumstances of the offense," "adequate deterrence to criminal
conduct," and "the need to provide restitution to any victims of the
offense." 18 U.S.C. § 3553(a). Only a court that sentences a defendant
already subject to an undischarged term of imprisonment could prop-
erly consider whether a consecutive or concurrent sentence best
serves the goals of § 3553(a), as only that court knows the circum-
stances attending the later sentence.
Finally, the Government’s interpretation would place one federal
court in the position of abrogating the sentencing authority of another.
If a judge were permitted to impose a sentence consecutive to a future
unimposed sentence, the judge in the later case, who concluded after
properly weighing the § 3553(a) factors that a concurrent sentence
not find them persuasive. Moreover, since these cases do not involve a
federal judge potentially abrogating the future sentencing authority of
another federal judge, their holdings do not address the precise problems
in this case. However, we note that their holdings might implicate
equally serious federalism concerns.
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was appropriate, would be left with the Hobson’s choice of either
ignoring his own judgment or disobeying the order of another district
court. Congress could not have intended this result when it enacted
§ 3584. Our conclusion that the district court did not have authority
to require that its sentence be consecutive to any later sentence not
only comports with the plain language and structure of § 3584, but
also avoids this undesirable practical outcome.
IV.
For the foregoing reasons, we conclude that the district court did
not err in failing to impose a sentence at the lowest end of the guide-
lines range, but did err in ordering Smith’s sentence to be served con-
secutively to any future sentence that Smith might receive.
Accordingly, we vacate Smith’s sentence and remand for sentencing
consistent with this opinion.
VACATED AND REMANDED
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