United States v. Velasquez ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    
    
    9-20-2002
    
    USA v. Velasquez
    Precedential or Non-Precedential: Precedential
    
    Docket No. 01-1599
    
    
    
    
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/590
    
    
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    PRECEDENTIAL
    
           Filed September 20, 2002
    
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    
    Nos. 01-1599 and 01-1820
    
    UNITED STATES OF AMERICA,
    
    v.
    
    REYNALDO VELASQUEZ,
    a/k/a REGGIE
    
    Reynaldo Velasquez,
    
           Appellant/Cross-Appellee
    
    APPEAL FROM THE   UNITED STATES DISTRICT COURT
    FOR THE EASTERN   DISTRICT OF PENNSYLVANIA
    (D.C. Crim. No.   99-cr-00066-1)
    District Judge:   Honorable Edmund V. Ludwig
    
    Argued July 16, 2002
    
    Before: McKEE, WEIS, and DUHE,*
    Circuit Judges.
    
    (Filed: September 20, 2002)
    
           Paul J. Hetznecker, Esquire
            (ARGUED)
           1420 Walnut Street, Suit 911
           Philadelphia, PA 19102
    
           Attorney for Appellant/Cross-Appellee
    _________________________________________________________________
    
    *Honorable John M. Duhe, Jr., United States Circuit Judge for the
    Fifth Circuit Court of Appeals, sitting by designation.
    
    
    
    
           Robert A. Zauzmer, Esquire
            (ARGUED)
            Assistant United States Attorney,
           Senior Appellate Counsel
           Patrick L. Meehan, Esquire
            United States Attorney
           Laurie Magid, Esquire
            Deputy United States Attorney for
           Policy and Appeals
           Kathy A. Stark, Esquire
            Assistant United States Attorney
           615 Chestnut Street, Suite 1250
           Philadelphia, PA 19106-4476
           Attorneys for Appellee/Cross-
           Appellant
    
    OPINION OF THE COURT
    
    WEIS, Circuit Judge.
    
    The defendant in this case was convicted of a drug
    conspiracy and use of a telephone in connection with the
    trafficking. We conclude that defendant’s assertions of trial
    error lack merit and we will affirm the conviction. On the
    government’s cross-appeal, we are persuaded that the
    District Court did not abuse its discretion in imposing
    concurrent rather than the consecutive sentences arguably
    provided in the Sentencing Guidelines. Accordingly, we will
    affirm the judgment.
    
    A jury convicted the defendant on one charge of
    conspiracy to distribute more than five kilograms of cocaine
    in violation of 21 U.S.C. S 846 and one count of use of a
    communications facility in violation of 21 U.S.C.S 843(b).
    From 1996 through October 4, 1998, defendant worked for
    a large-scale organization distributing cocaine at the corner
    of 8th and Tioga Streets in Philadelphia, Pennsylvania.
    Defendant kept the street-level dealers supplied with
    packages for sale and collected the proceeds. He then
    delivered the money to his immediate supervisor or the
    head of the organization. Defendant earned between $500
    
                                    2
    
    
    and $600 per week for his efforts. In carrying out his
    duties, he made more than 100 telephone calls to a pay
    phone located at the corner of 8th and Tioga Streets.
    
    At trial, three co-conspirators testified to the defendant’s
    participation in the drug organization. Police surveillance
    and recordings of the defendant’s telephone calls
    corroborated that testimony to some extent. Defendant was
    seen frequently driving a grey Oldsmobile automobile
    registered in his name to the corner site. He also used the
    automobile to travel to other locations connected with the
    organization’s activities.
    
    During presentation of the government’s case, an ATF
    agent testified about intercepting the defendant’s telephone
    calls, and described efforts to discover the defendant’s
    pager number. Objections to portions of this testimony as
    hearsay were sustained by the District Court. Using a chart
    that had been prepared based on evidence presented at the
    trial, the agent testified about the composition of the
    organization and defendant’s position within the group.
    
    After the jury had begun its deliberations, it sent a
    question to the trial judge inquiring, inter alia, "is 50
    kilograms of cocaine a significant part of the conspiracy? Is
    it necessary to agree that 50 kilograms was sold to be guilty
    of the conspiracy?" The judge then consulted with counsel.
    Defendant’s lawyer argued that the question should be
    answered in the affirmative because quantity was an
    element of the offense. The prosecutor, however, contended
    that the 50 kilograms was only a sentencing factor. The
    judge then instructed the jury that quantity was not an
    element required for conviction.
    
    In performing preliminary calculations for Sentencing
    Guideline purposes, the District Court held the defendant
    responsible for 60 kilograms of cocaine because of his
    involvement in the conspiracy. This estimation, together
    with other enhancements, resulted in a Guideline range of
    292 to 365 months.
    
    However, after the Guideline computations were
    determined but before sentence was imposed, the Supreme
    Court decided Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), holding that the quantity of drugs in cases of this
    
                                    3
    
    
    nature must be submitted to and determined by a jury. The
    trial judge, therefore, concluded that in light of Apprendi
    the statutory maximum of 240 months set out in 21 U.S.C.
    S 841(b)(1)(C), applied to the conspiracy conviction, rather
    than the Guideline computation of 292-365 months. The
    Court grouped the conspiracy with the communications
    offense, denied the government’s request for consecutive
    sentences totaling 288 months, and directed incarceration
    for 240 months.1
    
    The defendant has appealed his conviction and the
    government has cross-appealed the sentence.
    
    The defendant contests several evidentiary aspects of his
    trial, the trial judge’s finding that the amount of cocaine
    involved as to the defendant exceeded 50 kilograms, and
    the trial judge’s failure to have the jury decide whether the
    amount of cocaine was more than 50 kilograms.
    
    Because the defendant made no objections in the District
    Court, the plain error standard of Rule 52(b) governs. See
    Fed. R. Crim. P. 52(b); Johnson v. United States , 
    520 U.S. 461
    , 466-67 (1997); United States v. Adams, 
    252 F.3d 276
    ,
    278-79 (3d Cir. 2001).
    
    I.
    
    We will first consider the challenges to the testimony of
    the ATF agent based on the chart of the organization that
    showed defendant as a member. The use of summaries and
    charts is proper and may be put before a jury with limiting
    instructions. United States v. Kapinson, 
    743 F.2d 1450
    ,
    1458 (10th Cir. 1984); United States v. Winn, 
    948 F.2d 145
    ,
    157-59 (5th Cir. 1991) (summary/testimony charts are
    admissible and Rule 1006 should not be interpreted
    literally or restrictively as to the "voluminous document"
    requirement).
    
    As noted earlier, the chart was based on testimony that
    had been introduced into evidence and the exhibit therefore
    _________________________________________________________________
    
    1. The maximum statutory sentence for the communications offense is
    48 months. Adding the 240 months term for the conspiracy results in a
    maximum statutory sentence of 288 months.
    
                                    4
    
    
    acted as a summary. Kapinson, 743 F.2d at 1458; Winn,
    948 F.2d at 157. Defendant did not object to the
    introduction of this evidence and under the applicable plain
    error standard, his challenge must be rejected. See Fed. R.
    Crim. P. 52(b); Johnson, 520 U.S. at 466-67; Adams, 252
    F.3d at 278-79.
    
    On cross-examination, the ATF agent stated that he had
    not been able to determine the name of the subscriber of a
    pager used by defendant. Having answered the precise
    question put to him, the agent then added that an
    employee of Express Paging, after studying a photograph,
    said defendant had been inside that store. Although this
    was hearsay, defendant did not move to strike the non-
    responsive portion of the answer nor request a curative
    instruction. In considering the totality of the evidence
    properly admissible at trial, this gratuitous answer was
    harmless and does not constitute grounds for reversal
    under the plain error standard. See id.
    
    Similarly, the defendant did not object to evidence
    obtained from the Pennsylvania Bureau of Motor Vehicles
    demonstrating that he was the registered owner of the grey
    Oldsmobile. Admission of that evidence does not constitute
    plain error. See id. Nor was it plain error to admit material
    obtained by wire-taps. See id. Nor do we find that the entry
    of evidence from the pen-register, which was not objected to
    at trial, constitutes reversible error under the plain error
    standard. See id.
    
    Defendant also challenges the District Court’s finding
    that for Guideline purposes he be held responsible for
    between 50 and 150 kilograms of cocaine. We are satisfied
    that based on the evidence submitted covering the length of
    time defendant served in the organization, his participation
    in distribution, and the amount of cocaine sold, the
    sentencing judge was within his authority to find the
    amount involved exceeded 50 kilograms.
    
    Defendant also raises an Apprendi challenge to the
    Court’s failure to have the jury decide whether the amount
    of cocaine was more than 50 kilograms. It is somewhat
    curious that he raises that issue here. The judge’s refusal
    to submit the quantity to the jury seems favorable to the
    
                                    5
    
    
    defendant because the ruling limited the possible maximum
    sentence to a lower level than that which would have been
    applicable if the jurors had found that the amount of
    cocaine was in excess of 50 kilograms. We find no merit to
    the defendant’s challenge.
    
    In sum, we conclude that defendant has failed to
    demonstrate reversible error and, consequently, his
    conviction will be affirmed.
    
    II.
    
    Although the defendant has not mounted a strong case
    contesting his conviction, the government in its cross-
    appeal has presented a serious challenge to the sentence.
    Succinctly, the government insists that the district judge
    should have made the sentence for use of a
    communications device consecutive, instead of concurrent.
    Although the issue is straightforward, an analysis of its
    resolution is somewhat complex involving, as it does, the
    interplay between various provisions of the Sentencing
    Reform Act and the Sentencing Guidelines.
    
    Under the Guidelines, the first question that arises when
    a defendant is convicted on a number of counts, is whether
    they should be grouped. The introductory comment in Part
    D of the Guidelines explains, "some convictions from a
    multi-count indictment are so closely intertwined with each
    other that increasing the Guideline range is not warranted.
    . . . To prevent multiple punishment for substantially
    identical offense conduct" multiple convictions should be
    grouped. See U.S.S.G. ch. 3, pt. D, intro. comment.
    "Convictions on multiple counts do not result in a sentence
    enhancement unless they represent additional conduct that
    is not otherwise accounted for by the Guidelines." Id.
    
    If a defendant is convicted of only one count and the
    computation under the Guidelines exceeds that of the
    statutory maximum, then the statutory sentence is the
    "Guideline Sentence." See 5G1.1. However, if a defendant is
    sentenced on a number of counts (absent exceptions not
    relevant here), "the sentence imposed on each other count
    shall be the total punishment . . ." See 5G1.2.
    
                                    6
    
    
    Total punishment is calculated by combining the factors
    in the relevant sections of the Guidelines without respect to
    maximum statutory sentences. See 3D1.5. For example, if
    a maximum sentence is 100 months for a particular crime,
    but the guideline calculation for that offense, including
    various enhancements, such as recidivism, is 120 months,
    then the "total punishment" is 120 months.
    
    According to the Guidelines, if the sentence for the count
    carrying the highest statutory maximum is less than the
    total punishment, then the sentence imposed on one or
    more of the other counts shall run consecutively to the
    extent necessary to make the final sentence "equal to the
    total punishment." See 5G1.2(d). However, the final
    sentence may not exceed the total of the maximum
    sentences set by statute for each count. See id. Otherwise,
    in general, the sentences shall run concurrently. See id.
    
    Trial courts traditionally exercised discretion to impose
    consecutive or concurrent sentences as required by the
    facts of the case. Congress restricted this power somewhat
    in the Sentencing Reform Act, but recognized that judges
    still retain substantial discretion. The Act provides that "[i]f
    multiple terms of imprisonment are imposed on a
    defendant at the same time . . . the terms may run
    concurrently or consecutively . . . ." 18 U.S.C.S 3584.
    Generally, sentences imposed at the same time run
    concurrently unless a statute mandates or the court orders
    otherwise.
    
    In considering whether terms are to be consecutive or
    concurrent, 18 U.S.C. S 3584(b) requires the court to
    consider factors set out in 18 U.S.C. S 3553(a). That
    subsection lists matters traditionally used in sentencing
    and also includes a reference to "the kinds of sentences and
    the sentencing range established for the applicable category
    of offense committed by the applicable category of
    defendant as set forth in the guidelines issued by the
    Sentencing Commission pursuant to section 994(a)(l) . . ."
    18 U.S.C. S 3553(a)(4)(A).
    
    In turn, 28 U.S.C. S 994(a)(l) instructs the Commission to
    insure that its Guidelines reflect the appropriateness of
    imposing an incremental penalty for each offense when "a
    
                                    7
    
    
    defendant is convicted of multiple offenses committed in the
    same course of conduct that result in the exercise of
    ancillary jurisdiction over one or more of the offenses . . . ."
    28 U.S.C. S 994(l)(1)(A). The guidelines must also reflect
    "the general inappropriateness of imposing consecutive
    terms of imprisonment for an offense of conspiring to
    commit an offense . . . and for an offense that was the sole
    object of the conspiracy . . . ." 28 U.S.C. S 994(l)(2).
    
    Section 994(a)(1)(D), however, also allows the
    Commission to promulgate guidelines for determining
    "whether multiple sentences to terms of imprisonment
    should be ordered to run concurrently or consecutively
    . . . ." 28 U.S.C. S 994(a)(1)(D).2
    
    The combination of Guidelines and statutory provisions
    has led to a substantial number of opinions by the Courts
    of Appeals. Most of the appeals address situations where
    the sentencing judge imposed a consecutive, rather than a
    concurrent sentence. In many of these cases the practical
    result was imprisonment in excess of the statutory
    maximum for the principal offense. See, e.g., United States
    v. Stewart, 
    190 F.3d 389
     (5th Cir. 1999) (92 month
    sentence imposed when the statutory maximum for the
    principal offense was 60 months); United States v. Chase,
    
    296 F.3d 247
     (4th Cir. 2002) (360 month sentence imposed
    when the statutory maximum for the principal offense was
    240 months). See also United States v. Feola, 
    275 F.2d 216
    (2d Cir. 2001) (24 month sentence for bank fraud offense
    was enhanced by conduct relevant to defendant’s tax
    offense for which the statutory maximum sentence was 12
    months); United States v. White, 
    240 F.3d 127
     (2d Cir.
    2001) (240 month sentence exceeded the statutory
    maximum sentence for any one of the crimes of which the
    defendant was convicted).
    _________________________________________________________________
    
    2. In United States v. Willis, 
    881 F.2d 823
    , 826 (9th Cir. 1989), the Court
    commented that "[a]lthough section 994(a)(1)(D) apparently would allow
    the Commission to eliminate the discretion, section 994(b)(1) requires
    that the Commission’s guidelines be consistent with the provisions of
    Title 18, which include section 3584(a). If the guidelines are to be
    consistent with Title 18, the discretion cannot be taken away." See also
    United States v. Nottingham, 
    898 F.2d 390
    , 395 (3d Cir. 1990); 28 U.S.C.
    S 994(b)(1).
    
                                    8
    
    
    A number of the Courts of Appeals have concluded
    essentially that the discretion allocated to the sentencing
    judge by section 3584 is subservient to the provisions of
    5G1.2. However, in affirming sentences at variance with the
    Guidelines, these Courts have, in effect, implemented the
    discretion granted by section 3584 by relying on the
    departure power. See United States v. Quinones , 
    26 F.3d 213
     (1st Cir. 1994) (upward departure because of excessive
    brutality by defendant); United States v. Kings , 
    981 F.2d 790
     (5th Cir. 1993) (offense level did not adequately
    recognize seriousness of defendant’s conduct).
    
    In cases involving a conflict between section 3584 and
    5G1.2, a majority of the Courts of Appeals have favored the
    Guidelines over the statutory grant of discretion. However,
    in United States v. Vasquez-Zamora, 
    253 F.3d 211
    , 214 (5th
    Cir. 2001), the Court recognized that the District Court had
    discretion to impose concurrent rather than consecutive
    sentences.
    
    In United States v. Rahman, 
    189 F.3d 88
    , 156 (2d Cir.
    1999), the Court considered the "tension" between section
    3584 and 5G1.2, and conceded that sentences could run
    concurrently, but were limited by the departure authority.
    "Just as there is discretion to depart upward to impose
    consecutive sentences where the guidelines call for
    concurrency, we believe there is discretion to depart
    downward to sentence concurrently where the guidelines
    call for consecutive sentencing." Rahman, 189 F.3d at 157.
    
    There is often little, if any, discussion in the case law of
    the fact that section 3584 recognizes the authority of the
    sentencing judge to impose concurrent or consecutive
    sentences without dependence on departure provisions in
    the Guidelines. Traditionally, judges possessed this power
    and because section 3584 restricts that authority, the
    limitation on the court’s power should be carefully
    scrutinized and narrowly applied.
    It is curious that appellate courts in affirming
    consecutive sentences in excess of that provided by the
    Guideline in multi-count cases have chosen to justify the
    result on departure grounds rather than forthrightly
    recognizing the district judge’s right to do so under the
    
                                    9
    
    
    discretion implicit in section 3584. Some Courts have
    stated flatly that sentencing judges "must" follow 5G1.2
    and impose consecutive terms. See, e.g. , United States v.
    White, 
    238 F.3d 537
    , 543 (4th Cir. 2001). However, section
    3584 contains no such direction, but rather provides that
    courts "shall consider" factors listed in 28 U.S.C. S 3553(a).
    The Sentencing Reform Act does not require that the
    sentencing judge deciding upon concurrent or consecutive
    sentences "must follow" or even "defer" to those elements.
    Instead, the statutory obligation is to "consider" these
    factors.
    
    In addition to the matters traditionally considered by
    sentencing judges, 18 U.S.C. S 3553 lists, as points to be
    considered, the kinds of sentences and ranges established
    by the Sentencing Commission as well as policy statements.3
    It bears repeating that the sentencing judges’ statutory
    obligation is to "consider" these factors, rather than
    subordinate or surrender their discretion as to whether
    consecutive or concurrent sentences should be imposed.
    
    28 U.S.C. SS 994(a)(l) & (l)(2) instruct the Commission to
    design Guidelines that affect the appropriate use of
    multiple counts committed at different times, and the
    general inappropriateness of imposing consecutive terms of
    imprisonment for an offense of conspiracy to commit an
    offense and for an offense that was the sole object of the
    conspiracy. Nevertheless, Courts that have insisted that
    sentences for multiple group counts must be consecutive to
    achieve "total punishment" have rejected section 994(l)(2) as
    a prohibition on consecutive sentencing for conspiracies
    and the underlying substantive offenses. See United States
    v. Kapaev, 
    199 F.3d 596
    , 598 (2d Cir. 1999) (holding that
    _________________________________________________________________
    
    3. One Court remarked that this reference to the Guidelines
    "incorporates [its] own procedures for departing . . . [and thus] avoids a
    ‘loophole’ which the district courts might use to second-guess the
    Sentencing Commission." United States v. Pedrioli, 
    931 F.2d 31
     (9th Cir.
    1991) (case remanded because reasons for imposing consecutive
    sentences might not be grounds for departure). The concern should have
    been over infringement of the sentencing court’s statutory discretion by
    Guidelines, rather than a misplaced misgiving over a"loophole," which
    amounted to no more than the statutorily recognized authority of
    sentencing judges.
    
                                    10
    
    
    sentencing courts must impose consecutive sentences in
    such circumstances); United States v. Kleinbreil , 
    966 F.2d 945
    , 952 (5th Cir. 1992) (same); United States v. Saccoccia,
    
    58 F.3d 754
     (1st Cir. 1995) (same).
    
    Although we have some doubts that those decisions are
    in congruence with the congressional intent expressed in
    section 994(l)(2), we are not confronted with that matter
    here. We merely point out the anomaly that case law
    appears to give a very restrictive meaning to 28 U.S.C.
    SS 994(a)(1) & (l)(2), but nevertheless construes section
    3584 to diminish the power of the sentencing judge.
    
    The commentary to Part D of the Guidelines observes
    that grouping is employed "[i]n order to limit the
    significance of the formal charging decision and to prevent
    multiple punishment for substantially identical offense
    conduct . . ." U.S.S.G. ch.3, pt. D, intro. comment. The
    commentary also observes that some offenses are so clearly
    intertwined with others that the Guideline ranges should
    not be increased. Id.
    
    Chase discusses the conflicting concepts of grouping and
    the use of consecutive sentencing sometimes referred to as
    "stacking." The Court concluded that at least in the factual
    circumstances there, de-grouping was permissible in order
    to impose consecutive sentences under 5G1.2. Chase, 296
    F.3d at 250-51. However, the Court did not discuss the
    discretion granted in section 3584, nor whether the
    sentencing judge should consider the relationship of the
    various convictions within the group before "de-grouping."
    The Court noted a distinction between selecting the range
    and deciding on consecutive or concurrent sentences, but
    did not comment on the fact that although grouping only
    affects range, it is a determinate element in setting the
    length of the sentence.
    
    As some Courts have read 5G1.2, if the total of the
    Guideline’s computations exceeds the statutory maximum
    for the primary count, then sentences on the lesser counts
    must be consecutive to the extent necessary to achieve
    "total punishment." See United States v. McLeod, 
    251 F.3d 78
     (2d Cir. 2001); United States v. White, 
    238 F.3d 537
     (4th
    Cir. 2001); United States v. Diaz, 
    296 F.3d 680
     (8th Cir.
    2002).
    
                                    11
    
    
    In following that approach, however, there is a potential
    for conflict with the aims of Part D to prevent imposition of
    additional punishment for conduct inextricably intertwined
    with the principal offense. Grouping attempts to avoid a
    sentence that "piles on" imprisonment for conduct that
    makes up the principal offense, but was charged in
    separate fragments to increase the punishment potential.
    Familiar examples are separate counts for each phone call
    or letter in a fraud case.
    
    The Guidelines can be seen as inconsistent in inveighing
    against excessive sentences, but abandoning that
    admonition in 5G1.2 when the computation for the
    principal offense cannot be implemented because of the bar
    of a statutory maximum sentence. Through the use of the
    "total punishment" theory, consecutive sentences for the
    minor counts are used to impose a total sentence exceeding
    that authorized by Congress for the principal offense.
    
    The parties have not cited nor has our research
    uncovered any precedent of this Court interpreting the
    interplay between section 3584 and 5G1.2. We have had
    some experience with 5G1.3 in determining whether
    concurrent or consecutive sentences apply when the
    defendant is already subject to an undischarged term of
    imprisonment.
    
    In United States v. Nottingham, 
    898 F.2d 390
    , 391 (3d
    Cir. 1990), the defendant was on parole at the time he
    committed an offense. We concluded that the version of
    5G1.3 then in effect failed to recognize the discretion
    granted the sentencing judge by section 3584. Nottingham,
    898 F.2d at 392-94. Therefore, the Guideline was not
    applied.
    
    The defendant in United States v. Holifield, 
    53 F.3d 11
    (3d Cir. 1995), was sentenced to terms concurrent to those
    previously imposed in another district. In affirming, we
    observed that the district judge need not follow the
    methodology of 5G1.3, and was free to use other means,
    but should indicate the reason for selecting the sentence.
    Holifield, 53 F.3d at 16. We explained that 5G1.3 provides
    for discretion in the sentencing judge, and noted,
    "Furthermore, the government points out that this case
    
                                    12
    
    
    demonstrates the wisdom of leaving discretion in the hands
    of the district court." Id. at 15.
    
    United States v. Higgins, 
    128 F.3d 138
    , 143 (3d Cir.
    1997), required the District Court to apply the consecutive
    sentence provided by 5G1.3 unless on remand the
    defendant could provide sufficient reasons for downward
    departure. In Higgins, the defendant committed a crime
    while incarcerated in a state prison, unlike the situation in
    Nottingham where the defendant was on parole at the time
    of his offense. Although it agreed with Nottingham that a
    guideline cannot trump a statute with which it conflicts,
    Higgins harmonized the general discretion granted under
    section 3584(a) and the limitation of 5G1.3. Higgins, 128
    F.3d at 141-42. Specifically, "5G1.3(a) is not in conflict with
    [section] 3584(a) merely because the Guideline limits
    sentencing discretion in the exceptional case of an offense
    committed while serving . . . a term of imprisonment." Id.
    at 142. See also United States v. Spiers, 
    82 F.3d 1274
     (3d
    Cir. 1996) (court permitted to impose consecutive sentence
    because defendant "did not deserve" concurrent terms);
    United States v. Brannan, 
    74 F.3d 448
     (3d Cir. 1996)
    (District Court had discretion to direct sentence to be
    wholly concurrent with previously imposed state term).
    However, these cases do not control here because they do
    not involve grouping, nor a statutory maximum sentence.
    
    In this case there is no dispute that the counts were
    properly grouped. As in almost all drug trafficking cases,
    the use of telephones is an integral part of the offense. Case
    law reveals the overwhelming number of convictions where
    telephone conversations were a significant evidentiary
    factor in obtaining convictions.
    
    Although charging choices are the prerogatives of
    prosecutors, the grouping guidelines are designed to control
    the amount of punishment when excess counts are
    employed in an indictment. The communication charge
    here clearly covers conduct within the drug trafficking
    violation and indeed comes close to coming within the rule
    of merger applied to lesser included offenses.
    
    This case illustrates the need for respecting the discretion
    of the sentencing judge preserved in section 3854. By
    
                                    13
    
    
    simply adding a count for conduct that is within the
    trafficking offense, the government puts 5G1.2 into play
    and effectively nullifies congressional judgment on the
    proper maximum sentence.
    
    If only the drug trafficking conviction were at issue, here
    the "Guideline sentence" would be the statutory maximum
    of 240 months. Adding a consecutive sentence under 5G1.2
    without consideration of other factors, is in conflict with the
    Guideline policy of imposing "incremental punishment ‘only’
    for significant additional criminal conduct." No such
    "significant additional criminal conduct" exists in the case
    before us.
    
    By imposing concurrent sentences as authorized by
    section 3854, the district judge carried out the Guideline
    policy of avoiding excessive sanctions caused by blindly
    allowing a legally distinct, but realistically indistinct,
    offense inherent in the principal count to gain sway. The
    district judge in this case described the sentence of 20
    years as "a very long period of custody and in this instance
    constitutes just punishment." We agree.
    
    The district judge also considered the use of concurrent
    sentences as a downward departure justified by the facts.
    He noted that the defendant was a low-level worker for the
    organization earning $500 to $600 per week, had no prior
    record, and the amount of cocaine actually supplied by him
    was far less than that attributable to him under the
    Guidelines as a member of the conspiracy. Although these
    might be adequate reasons for a departure, we need not
    use that basis for affirmance. We believe the better
    reasoning is to treat the sentence as a proper exercise of
    discretion under section 3854.
    
    The sentencing judge fulfilled his obligation to"consider"
    the ramifications of the Sentencing Guidelines listed in
    section 3553. Having done so in a thoughtful manner, he
    decided that the imposition of concurrent sentences
    resulted in a "just punishment."
    
    We conclude that the sentencing judge properly exercised
    his discretion under section 3854 of the Sentencing Reform
    Act, and in accordance with the policy expressed in the
    
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    Guidelines grouping provisions, decided that concurrent
    sentences were appropriate.
    
    Accordingly, the judgment of the District Court will be
    affirmed.
    
    A True Copy:
    Teste:
    
           Clerk of the United States Court of Appeals
           for the Third Circuit
    
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