United States v. Daleno Hayes , 90 F. App'x 476 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1841
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Daleno Antwaynne Hayes, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 7, 2004
Filed: March 2, 2004
___________
Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Daleno Hayes appeals from the final judgment entered in the District Court1 for
the District of Nebraska after he pleaded guilty to bank robbery in violation of 18
U.S.C. §§ 2113(a) and 2. The district court sentenced Hayes to 63 months
imprisonment and 3 years supervised release. For reversal Hayes argues the district
court erred by (1) denying him a mitigating-role reduction and (2) not granting credit
or a downward departure to reflect time already served on a Maryland prison term for
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
a robbery committed a few days after the instant robbery. For the reasons discussed
below, we affirm the judgment of the district court.
The district court did not clearly err in denying Hayes a mitigating role
reduction because Hayes knew of the plan for the bank robbery, he assisted in the
robbery, and he shared equally in the proceeds. See U.S.S.G. § 3B1.2, comment.
(n.4) (defendant’s lack of knowledge or understanding of scope and structure of
criminal activity is indicative of minimal participation); United States v. Jankowski,
194 F.3d 878, 881 (8th Cir. 1999) (standard of review); cf. United States v.
Christmann, 193 F.3d 1023, 1025 (8th Cir. 1999) (affirming denial of minor role
reduction for getaway driver who had advance knowledge of bank robbery and
shared in proceeds), cert. denied, 529 U.S. 1044 (2000).
Whether Hayes’s Maryland prison term was discharged or undischarged, we
conclude that U.S.S.G. § 5G1.3 did not entitle Hayes to any credit for time served on
that sentence. If his Maryland prison term was undischarged (in that he was still on
parole), Hayes was not entitled to concurrent sentencing because the Maryland
robbery--which was different criminal conduct--was not fully taken into account in
determining his offense level for the instant offense. See U.S.S.G. § 5G1.3(b) (if
defendant’s “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”); United States v. Harris, 324 F.3d 602, 605 (8th Cir.)
(Guidelines § 5G1.3(b)’s requirement that undischarged-term offense be “fully taken
into account” is stringent and has only narrow reach; section “can apply only when
a defendant has been sentenced in state or federal court for the same criminal conduct
or for criminal conduct necessarily included in the later federal charges”), cert.
denied, 124 S. Ct. 209 (2003). If Hayes’s Maryland prison term was undischarged,
the district court could have exercised its discretion to make the federal sentence
concurrent or partially concurrent with the remaining portion of the undischarged
-2-
term, see U.S.S.G. § 5G1.3(c), p.s. (in any case not otherwise addressed by
Guidelines § 5G1.3, sentence “may be imposed to run concurrently, partially
concurrently, or consecutively to” prior undischarged prison term to achieve
reasonable punishment for instant offense), but could not have given Hayes credit for
time already served in Maryland, see United States v. Fermin, 252 F.3d 102, 109-10
(2d Cir. 2001) (under Guidelines § 5G1.3(c), new sentence may be concurrent with
remaining portion of preexisting sentence; section does not authorize court to reduce
defendant’s sentence below Guidelines range for time already served on different
sentence, and does not provide same “credit” for time served that is available under
Guidelines § 5G1.3(b)).
If Hayes’s Maryland prison term was discharged, the downward departure
provision in Application Note 7 does not help him because, as discussed above,
Guidelines § 5G1.3(b) would not have applied to his Maryland prison term if it had
been undischarged. See U.S.S.G. § 5G1.3, comment. (n.7) (“In the case of a
discharged term of imprisonment, a downward departure is not prohibited if
subsection (b) would have applied to that term of imprisonment had the term been
undischarged.”).
Hayes further argues that the district court should have granted him a
downward departure because the delayed prosecution of the instant robbery denied
him the opportunity to serve this federal sentence concurrently with his Maryland
prison term. The denial of a motion for downward departure is not reviewable on
appeal. Nonetheless, to the extent Hayes is arguing that the delay was
unconstitutional, this argument fails because Hayes conceded that the prosecution’s
delay was not in bad faith and he did not argue the delay was unreasonably long. See
United States v. Los Santos, 283 F.3d 422, 428-29 (2d Cir. 2002) (delay must either
have been in bad faith or have been longer than reasonable amount of time to have
diligently investigated crime; 4-month delay deemed reasonable); United States v.
Saldana, 109 F.3d 100, 104 (1st Cir. 1997) (district court could consider departures
-3-
for delay that was extreme or implicitly sinister); see also United States v. Meyer, 906
F.2d 1247, 1251 (8th Cir. 1990) (per curiam) (to establish that government denied
defendant due process by delaying indictment, defendant must demonstrate that
government intentionally delayed either to gain tactical advantage or to harass
defendant).
Accordingly, we affirm.
______________________________
-4-