United States v. Figueroa

United States Court of Appeals
Fifth Circuit
F I L E D
January 30, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-50458
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHRISTIAN SAMOL FIGUEROA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 6:05-CR-212-2
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
Christian Figueroa pleaded guilty of bank
robbery and aiding and abetting bank robbery
in violation of 18 U.S.C. §§ 2113(a) and 2,
and he appeals his sentence. We vacate and
remand for resentencing.
I.
Figueroa was arrested after a high-speed
chase following a bank robbery. He was pro-
secuted in a Texas state proceeding for various
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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offenses related to the robbery and was sen-
tenced to fifty years’ imprisonment. He was
subsequently indicted in federal court for the
primary offense of bank robbery and pleaded
guilty.
Based on the presentence report, the court
found that Figueroa’s offense level was 29 and
his criminal history score was VI, yielding a
guideline range of 151 to 188 months’ impris-
onment. The government moved for an up-
ward departure based on several uncharged of-
fenses, and Figueroa moved for a downward
departure, pursuant to U.S.S.G. § 5G1.3(b), to
account for the 15 months he had already
spent in state custody for the related offense.
The court departed upward and sentenced
him to 240 months’ imprisonment to be served
concurrently with his state sentence. The de-
parture was based on his use of an illegal wea-
pon and stolen vehicle in the commission of
the offense. The court did not address Figuer-
oa’s § 5G1.3(b) request at sentencing or in its
Judgment in a Criminal Case Order.
II.
After United States v. Booker, 543 U.S.
220 (2005), we continue to review a district
court’s interpretation of the sentencing guide-
lines de novo. United States v. Medina-Argu-
eta, 454 F.3d 479, 481 (5th Cir. 2006). Be-
fore imposing a non-guideline sentence, a
court must consider the guidelines. United
States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006); United States v. Mares, 402 F.3d 511,
518-19 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). This consideration requires that the
court calculate the appropriate guideline range.
Smith, 440 F.3d at 707. The court must justify
a departure from the guidelines, and “the far-
ther a sentence varies from the applicable
Guideline sentence, the more compelling the
justification . . . must be.” Id.
At issue is whether the district court prop-
erly followed the guidelines’ requirement that
Figueroa be credited with the time he served
on his related state conviction before being
sentenced in federal court. The guidelines,
U.S.S.G. § 5G1.3(b)(1), state that if a defen-
dant has a term of imprisonment resulting from
a related offense, “the court shall adjust the
sentence for any period of imprisonment al-
ready served on the undischarged term of im-
prisonment if the court determines that such
period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons.”
The commentary elaborates on the appro-
priate application of this guideline and pro-
vides an example. The court should first de-
termine the appropriate sentence according to
the guideline range. If credit is due for time
already served on a related state charge, that
time is then subtracted from the sentence. See
U.S.S.G. § 5G1.3 comment. (n.2(D)). If time
is credited under this section, it should be not-
ed on the Judgment in a Criminal Case Order.
See U.S.S.G. § 5G1.3 comment. (n.2(C)).
We have held, in a pre-Booker case, that
the application of § 5G1.3(b) is mandatory.
See United States v. Rangel, 319 F.3d 710,
714 (5th Cir. 2003). Although Booker pro-
vides sentencing judges flexibility to depart
from the guideline range, it does not allow
them to bypass a provision of the guidelines,
which still provide an anchor for our evalua-
tion of a sentence’s reasonableness. Booker
does not nullify § 5G1.3(b), and when that
section applies, sentencing judges must include
its dictates in the calculation of the proper
guideline sentence.1
1 We need not, and do not, consider whether
sentencing courts must, under Booker, follow
(continued...)

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The government argues that the court ac-
tually did grant Figueroa’s request for a down-
ward departure and that the ultimate sentence
reflects that departure. It bases its position on
the court’s statement, at sentencing, that it
would “abide by the mandate of the guideline
range.” Accordingly, the government posits
that the district court decided to depart
upwardly to 255 months before subtracting 15
months for the time already served, to reach an
ultimate sentence of 240 months, and that the
court did so without explaining its reasoning
at sentencing or in the Judgment Order.
Even assuming, arguendo, that the govern-
ment’s characterization is accurate, the court
did not acknowledge § 5G1.3(b) in its sentenc-
ing calculations. Accordingly, we VACATE
the sentence and REMAND for resentencing.
We express no opinion on what sentence the
district court should impose on remand.
1(...continued)
§ 5G1.3(b) and subtract the time served. We
conclude only that courts must include the calcula-
tion required by this section when determining the
proper guideline sentence.

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