On Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Criminal Nos. 94-cr-00003J, 94-cr-00011J & 94-cr-00012J).
Before: Scirica, Roth and Sarokin, Circuit Judges.
Defendant Robert Holifield pled guilty in 1994 to five counts of wire fraud in violation of 18 U.S.C. § 1343 (Supp. V 1993). The sole issue on appeal is whether the district court acted within its discretion in its application of the United States Sentencing Guidelines. We will affirm.
From March 13, 1992, to June 12, 1992, Holifield engaged in a wire fraud scheme in the Middle and Western Districts of Pennsylvania. Holifield telephoned various persons, falsely representing himself to be a corporate officer of Diamond Marketing Company, V.I.P. Promotions, and other companies. After advising them they had won prizes through a sweepstakes drawing, Holifield told them that it was necessary to pay an advance fee to cover expenses and taxes on the prize. He then instructed them to wire the money to Western Union offices in Pennsylvania and Georgia to persons that he claimed were company associates. The scheme caused losses to five individuals totaling more than $25,000.
Two years earlier, from December 1, 1989, through November 1, 1990, Holifield engaged in a similar scheme in the Northern District of Georgia, this time purportedly as a salesman for International Marketers, Incorporated. Holifield also trained others to be salespersons for IMI. Three victims in this scheme lost a total of $2,700. The cases from the Northern District of Georgia and the Middle District of Pennsylvania were transferred to the Western District of Pennsylvania under Federal Rule of Criminal Procedure 20 and were consolidated for purposes of Disposition ("the Pennsylvania charges").
At the time the Pennsylvania charges were filed, Holifield was serving a 21-month sentence for another wire fraud scheme in which he posed as an Internal Revenue Service agent during February 1993. That charge was filed in the District of Colorado, and Holifield pled guilty in August 1993.
As we have noted, Holifield later pled guilty to five counts of wire fraud in the Western District of Pennsylvania. The guideline range for each count was 15-21 months imprisonment. He was sentenced to 15 months on each count, each to run concurrently and also concurrently with the remaining time on the Colorado sentence, which was four months.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231 (1988). We have jurisdiction under 28 U.S.C. § 1291 (1988). Our review of the construction of the Sentencing Guidelines is plenary. United States v. Nottingham, 898 F.2d 390, 392 (3d Cir. 1990).
Under 18 U.S.C. § 3584 (1988), a sentencing court is permitted to order a defendant's sentence to run either concurrently or consecutively to another sentence imposed at the same time or to an earlier, undischarged term of imprisonment. That discretion is subject to § 5G1.3 of the United States Sentencing Guidelines, which was promulgated in response to the statutory duty imposed upon the Sentencing Commission to include in the guidelines "a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively." 28 U.S.C. § 994(a)(1)(D) (1988).
The government and Holifield apparently agree that § 5G1.3(c) governs this dispute.*fn1 Subsection (c) provides that "the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense." U.S.S.G. § 5G1.3(c) (Policy Statement) (emphasis added).*fn2 The Commentary's Application Note to subsection (c) states that a consecutive sentence is not required when reasonable incremental ...