On Appeal from the United States District Court for the District of New Jersey
(D.C. Cr. Action No. 95-cr-00206)
Before: COWEN, ROTH and LEWIS, Circuit Judges
Argued on September 25, 1997
(Opinion Filed October 17, 1997)
This is an appeal by the government of a criminal sentencing order. The defendant, Kenneth Higgins, was sentenced for an offense committed while serving a previous term of imprisonment. The district court ordered a portion of the sentence to run concurrently with the previously imposed sentence. The issue on appeal is whether the district court properly construed its discretion to order concurrent sentencing in view of Sentencing Guideline Section(s) 5G1.3. The district court had jurisdiction under 18 U.S.C. Section(s) 3231, and we have jurisdiction over the appeal of the sentence pursuant to 28 U.S.C. Section(s) 1291 and 18 U.S.C. Section(s) 3742. Because we find that the district court employed an erroneous legal standard, we will vacate the judgment of sentence and remand for resentencing.
On May 5, 1995, a federal grand jury indicted Kenneth Higgins on a charge of conspiring to mail threatening communications as prohibited by 18 U.S.C. Section(s) 876, in violation of 18 U.S.C. Section(s) 371. While incarcerated in a Maryland state correctional facility, Higgins caused a letter to be sent to a corporate executive in New Jersey. The letter falsely claimed knowledge of a contract to kill the executive. In the letter, Higgins offered for a $2,500 fee to furnish a copy of a tape recording which purportedly contained the name of the person who wanted the executive dead as well as the actual murder solicitation. The executive contacted the FBI, which discovered that Higgins had had his girlfriend send the letter. When questioned, the girlfriend
admitted typing and mailing the letter at Higgins' direction. The FBI determined that Higgins was responsible for 10 identical letters which had been sent to executives throughout the country.
Following his indictment, Higgins pled guilty to conspiracy to commit mail fraud, a charge carrying a statutory maximum sentence of 5 years. At the sentencing hearing on December 11, 1996, Higgins did not dispute the length of the 5-year term of imprisonment imposed, which was less than his Guidelines range of 77 to 96 months. *fn1 Higgins did request, however, that the court exercise its discretion to run all or part of the 5-year sentence concurrently to his previously imposed state sentence. In response, the government argued that, because Higgins' offense was committed while he was serving a term of imprisonment, Sentencing Guideline Section(s) 5G1.3(a) mandated that the 5-year sentence be imposed consecutive to his state sentence.
Citing our decision in United States v. Nottingham, 898 F.2d 390 (3d Cir. 1990), the district court held that, notwithstanding the mandatory language of Section(s) 5G1.3(a), a trial judge had discretion under 18 U.S.C. Section(s) 3584(a) to order a sentence to run concurrently or consecutively. Believing that a 5-year consecutive sentence would be excessive punishment in Higgins' case, *fn2 the court ordered that 48 months of ...