United States v. Washington ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30334
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDDIE WASHINGTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 96-CR-10016-2
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April 8, 1998
Before JOLLY, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:*
Freddie Washington appeals from his sentencing pursuant to a
guilty plea for food stamp fraud. He argues that the trial
court’s imposition of the instant sentence as consecutive to a
prior undischarged sentence is in opposition to Federal
Sentencing Guideline § 5G1.3(b).
A district court’s decision to order consecutive or
concurrent sentences is reviewed for abuse of discretion, but its
application of the sentencing guidelines is reviewed de novo.
United States v. Richardson, 87 F.3d 706, 710 (5th Cir. 1996).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-30334
-2-
We have reviewed the record, the parties briefs, and the district
court’s opinion and find that the imposition of a consecutive
sentence is in keeping with 18 U.S.C. § 3584(a)’s premise that
multiple terms of imprisonment imposed at different times run
consecutively, and the court took the factors listed in 18 U.S.C.
§ 3553(a) into consideration in constructing the sentence. See
Richardson, 87 F.3d at 710. Moreover, the prior conviction was
used in calculating the criminal history score, but was not used
to determine the base offense level and was not fully taken in to
account such that the exception of U.S.S.G. § 5G1.3(b) would
apply. See United States v. Hornsby, 88 F.3d at 336, 339 (5th
Cir. 1996). Therefore, the sentence as imposed is not a
misapplication of the guidelines and there was no abuse of
discretion under § 5G1.3(c).
AFFIRMED.