On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before a reconstituted panel of SLOVITER, Chief Judge, ROTH and ROSENN, Circuit Judges *fn*
Argued on Rehearing September 20, 1996
Appellant Neil Oser was sentenced in the United States District Court for the Eastern District of Pennsylvania for his role in two drug conspiracies to which he pled guilty. He argues that the district court erred in ordering that the sentences imposed should run consecutively rather than concurrently and/or co-terminously with the term of imprisonment which he is serving for a currency reporting violation to which he pled guilty in the federal court in New York. He also argues that the district court erred in setting his criminal history level.
On June 19, 1991, United States Customs Agents at JFK Airport arrested Neil Oser before he boarded a flight bound for Lagos, Nigeria for understating on customs forms the amount of United States currency he was transporting. He had reported that he was carrying $65,000 in cash, when in fact he carried a total of $790,000. Oser pled guilty in the United States District Court for the Eastern District of New York to a charge of failing to accurately report the transport of cash abroad in violation of 31 U.S.C. Section(s) 5316. That plea, a waiver of indictment, and a plea agreement were entered on November 26, 1991. Oser was released pending sentencing on condition and with notice that he would be subject to an additional sentence should he commit another offense while on pretrial release. On July 23, 1993, the district court in New York rejected Oser's various requests for a downward departure and sentenced him to 28 months in prison.
In the interim, Oser was indicted on July 29, 1992, in the Eastern District of Pennsylvania and charged with conspiracy to import heroin into the United States in violation of 21 U.S.C. Section(s) 963 and money laundering of $7,200 in postal money orders that were drug payments to his brother in violation of 18 U.S.C. Section(s) 1956(a). The Pennsylvania indictment included as an overt act Oser's June 19, 1991 "attempt to smuggle" approximately $800,000 cash out of the United States from New York, although that paragraph made no reference to drugs or the subsequent heroin conspiracy described in the indictment. The substance of the Pennsylvania indictment and all of the remaining overt acts refer to transactions pertinent to a conspiracy to import heroin through March 1992.
On September 3, 1993, Oser was again indicted in the District of New Jersey and charged with conspiracy to import heroin into the United States in violation of 21 U.S.C. Section(s) 963 and possession of heroin with intent to distribute in violation of 21 U.S.C. Section(s) 841(a)(1). The New Jersey indictment alleged that the criminal activity charged took place from July 1992 through February 1993, a period that included activity after Oser pled guilty to the false currency charge in New York. The government contends that although both the Pennsylvania and New Jersey indictments involve international heroin smuggling activities, they involved different participants and different time periods, a contention supported by the facts set forth in the pre-sentence report. *fn1
Oser pled guilty to the Pennsylvania conspiracy and money laundering charges on December 3, 1992. The New Jersey case was transferred to the Eastern District of Pennsylvania in May 1994 in order to consolidate for disposition. On June 13, 1994, Oser also pled guilty to the New Jersey conspiracy charge.
On January 26, 1995, the district court sentenced Oser to a nine year term of imprisonment on the New Jersey charge, with an additional one year enhancement pursuant to 18 U.S.C. Section(s) 3147 and U.S.S.G. Section(s) 2J1.7 because Oser committed the New Jersey offense while on pre-sentence release from the New York conviction. The district court imposed an identical sentence on the Pennsylvania conspiracy charge to run concurrently with the New Jersey sentence. On the Pennsylvania money laundering charge, the court sentenced Oser to five years, plus an additional one-year sentence for commission of the crime while on release, also to run concurrently with the other sentences. However, the district court ordered the New Jersey and Pennsylvania sentences to run consecutively to the 10 months remaining on Oser's New York sentence.
Oser originally argued in his appellate brief that he was not put on adequate notice that committing a crime while on pre-sentence release could result in an increased sentence pursuant to 18 U.S.C. 3147 and U.S.S.G. Section(s) 2J1.7. He withdrew that argument following a showing by the government that before Oser was released on the New York charges, he signed an Appearance Bond which stipulated the conditions of his release and expressly stated that "DEFENDANT ADVISED BY MAGISTRATE OF APPLICABLE PROVISIONS OF 18 U.S.C. Section(s) 3156/3147 IN WRITING." Gov't App. at 1. That advice appeared on a separate page under the heading, "Advice of Penalties and Sanctions" that was also signed by Oser and that clearly warned Oser of the enhanced penalty he faced for committing a crime while on bond. Id. at 4. On oral argument, Oser conceded that he did, in fact, receive sufficient notice that any offense committed while on bond would result in an enhanced sentence, and he no longer challenges the one year enhancement imposed by the district court.
Instead, Oser's argument now is limited to his contention that under U.S.S.G. Section(s) 5G1.3(b) and Section(s) 5G1.3(c) the district court here was required to impose the conspiracy sentences to be served concurrent to the New York currency charges, and that the district court erred in fixing his criminal history level.
We have jurisdiction over the appeal of this sentence pursuant to 28 U.S.C. Section(s) 1291. Our review of the construction of the Sentencing Guidelines is plenary. United States v. Holifield, 53 F.2d 11, 13 (3d Cir. 1995).
Section 5G1.3 of the Sentencing Guidelines is the provision designed to guide the district courts in determining whether a sentence on a defendant subject to an undischarged term of imprisonment is to run consecutively or concurrently. At the time of sentencing, that section, which has since been amended, provided:
Section(s) 5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment
(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 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. Section(s) 561.3 (1994).
Both parties agree that Section(s) 5G1.3(a) is inapplicable here. The second offense (subject of the Pennsylvania indictment) was committed before Oser was sentenced on the first offense, the New York money reporting charge. The dispute ...