IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 95-3103

BRIEF OF APPELLANT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

WESLEY B. DEWALT,Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period of Fed.R.App.P.4(b), this court has jurisdiction pursuant to 18 U.S.C. § 3742.

QUESTIONS PRESENTED

I.WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY GIVEN THAT IT WAS ENTERED DURING A DEFICIENT RULE 11 HEARING IN WHICH THE DISTRICT COURT FAILED TO EXPLAIN TO THE DEFENDANT CERTAIN ELEMENTS OF THE CHARGE AND IN WHICH NO FACTUAL BASIS FOR THESE ELEMENTS WAS ESTABLISHED.

II.WHETHER THE DISTRICT COURT ERRED WHEN IT DEFERRED UNTIL AFTER FURTHER CONSULTATION WITH THE PROBATION OFFICER AFTER THE SENTENCING HEARING WHETHER TO RUN THE SENTENCE CONSECUTIVELY OR CONCURRENTLY.

III.WHETHER THE DITRICT COURT ERRED WHEN IT DENIED THE DEFENDANT A DOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY SOLELY ON THE BASIS THAT THE DEFENDANT WAS NOT ADMITTING AN ELEMENT OF THE OFFENSE TO WHICH HE PLEADED GUILTY.

IV.WHETHER THE TRIAL COURT ERRED WHEN IT ORDERED THE DEFENDANT'S SENTENCE TO RUN CONSECUTIVELY TO THE UNDISCHARGED TERM OF IMPRISONMENT IN VIOLATION OF U.S.S.G. § 5G1.3.

STATEMENT OF THE CASE

On July 12, 1994, Mr. Burgess was charged in a three-count indictment. Count one charged him with possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d); count two charged him with possession of an unregistered sawed-off shotgun in violation of §2311(a) of Title 6 of the District of Columbia Code; and count three charged him with possession of unregistered ammunition in violation of § 2361(3) of Title 6 of the District of Columbia Code (A 7-8). Each of the three counts were based on a single incident which occurred on July 5, 1994. On October 26, 1994, the defendant entered a plea of guilty to count one of the indictment (A 4).

On July 5, 1995, the district court sentenced the defendant to a term of incarceration of 33 months, the lower end of the guideline range, to be served consecutively to a ten-year undischarged term of imprisonment for a state conviction (A 5, 19). The government dismissed the remaining two counts of the indictment (A 5).

The defendant filed a timely notice of appeal on July 13, 1995 (A 22).

STATEMENT OF FACTS

On July 5, 1994, the defendant who was then 18 years old and had no prior juvenile or adult arrests or convictions, arrived at the Greyhound Bus Terminal in Washington, D.C. PSI at 3, ¶ 3. He had traveled by bus from Richmond, Virginia and was carrying a long, blue tote bag. Id. Officers from the Narcotics Special Interdiction Division Unit of the Metropolitan Police Department became suspicious of the defendant when they saw him having difficulty carrying the bag which appeared to contain a long, heavy object. Id. The officers watched the defendant stand in the line for buses bound to New York, speak to another man waiting on the same line, and leave his blue bag with the man while he went to buy a soda from a vending machine and food from a fast food restaurant. Id. The man placed a plastic bag and a tote bag on top of the defendant's blue bag. Id.

After the defendant returned to the bus line, the officers thought it suspicious that the defendant periodically glanced at one of them. Id. at 3-4, ¶¶ 3-4. As a result, one of the officers approached the defendant, identified himself and asked the defendant where he was travelling. Id. at 4, ¶ 4. The defendant handed his bus ticket to the officer, provided an identification card and said he lived in Richmond, Virginia. Id. at 4, ¶¶ 4-5. The street address that the defendant gave was one number off from the address listed on the identification card. Id.

When asked by one of the officers if he was carrying any guns or drugs, the defendant answered that he was not. Id. at ¶ 7. The defendant then consented to have an officer search his bags. Id. When the officer searched the defendant's blue tote bag, he found some shotgun shells within a pocket in the bag and also found a shotgun in the bottom of the bag underneath clothing. Id. at ¶¶ 8-9. The shotgun was a JC Higgins .16 gauge bolt action shotgun, with a barrel length of 16.25 inches Id.

The officers then arrested the defendant. Id. at ¶ 8.

Indictment and Plea

On July 12, 1994, the defendant was charged in a three-count indictment with one count of possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d); one count of possession of an unregistered sawed-off shotgun in violation of §2311(a) of Title 6 of the District of Columbia Code; and one count of possession of unregistered ammunition in violation of § 2361(3) of Title 6 of the District of Columbia Code (A 7-8). On July 22, 1994, the district court released the defendant pending trial on a $5000 surety bond (A 4).

On October 26, 1994, the defendant pleaded guilty, pursuant to a plea agreement, to count one of the indictment (A 9-16). The agreement contemplated that the defendant would provide assistance to the government in the prosecution of others and that the government would file a departure motion in the event the information rose to the level of substantial assistance. Plea Agreement at ¶ 3 (A 10-13). Because the defendant ultimately did not provide any assistance, the government did not file such a motion. This decision is not at issue in this appeal.

1.Plea Colloquy

During the plea colloquy, the district court explained to the defendant that by pleading guilty he would waive a number of constitutional rights, including the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers. Plea Hearing at 5-6 (PT 5-6, Tab A).

In discussing the nature of the charge, the district court omitted any reference to the fact that the shotgun in the possession of the defendant was a "firearm", as defined in 26 U.S.C. § 5845(a), in that it had a "barrel that was less than 18 inches in length". See Plea Hearing at 12-13 (PT 12-13, Tab A). The district court also did not address another essential element of the charge -- the defendant's knowledge that the shotgun had a shortened barrel, the characteristic of the shotgun that brought it within the scope of the National Firearms Act, 26 U.S.C. § 5861(d). The government's proffer of proof also omitted any reference to these two elements of the offense.

The transcript reflects the following discussion:

THE COURT: . . . [AUSA] Klein, would you be good enough to give for the record a statement of what the evidence would show briefly if the case were to go to trial.

[AUSA]: Yes, Your Honor.

If this case, criminal number 94-282, were to have gone to trial, the government's case would have proven beyond a reasonable doubt that on July 5th, 1994, at approximately 5:45 p.m. in the 1000 block of first street, northeast at the Greyhound Bus Station, members of the Narcotics Interdiction Unit were interviewing travelers at the bus station.

And they saw Mr. [Burgess] disembark a bus and enter the station. As they saw him walking, they saw him carrying what they believed was a blue tote bag that to them looked a little odd and it looked to them as if Mr. [Burgess] was having difficulty carrying that bag.

Without going into every single detail, what they did, they eventually approached him after observing him for a period of time, and asked him, asked Mr. [Burgess] if they could search his bag.

Mr. [Burgess] consented. They went into the blue tote bag; and underneath clothing, they first encountered the seven rounds of shotgun ammunition.

They then further went into the bag and found the .16-gauge shotgun in the bag. They then placed Mr. [Burgess] under arrest.

A search of the records revealed that Mr. [Burgess] did not have the weapon registered either in D.C. or anywhere in the United States under the National Firearm Registration Act, I believe.

The weapon was test-fired; it test-fired operable; and Mr. [Burgess] was, of course, then indicted on the charges that we have before the court.

THE COURT: All right. Thank you, sir.

Mr. [Burgess], are you basically in agreement with what [the AUSA] said happened in your case?

THE DEFENDANT: Yes.

THE COURT: All right, sir.

Since you acknowledge that you are guilty as charged in count one of the indictment, which was returned on July 12th, you know your right to a trial, you know what the maximum statutory possible punishment is, we've discussed the sentencing guidelines, we've discussed the possibility of departing from those depending on your cooperation, and I find that you are voluntarily pleading guilty, I accept your guilty plea and enter a judgment of guilty to count one of the indictment based upon your plea.

Plea Transcript at 12-13 (PT 12-13, Tab A).

State Offense Resulting In Undischarged Term Of Imprisonment

After his guilty plea on the instant offense, the defendant was charged and convicted in the state of Virginia with robbery and use of a firearm in the commission of a felony. Revision to PSI at 2. Those charges arose out of an offense committed by the defendant on November 14, 1994, while he was released on bond for the instant offense. Id. In that offense, the defendant and a co-defendant robbed a man, with whom they were walking, of some jewelry. Id. During the robbery, the co-defendant hit the victim in the back of the head with the butt of a gun. Id.

On April 14, 1995, the state judge sentenced the defendant to a term of imprisonment of 10 years (25 years on the robbery count, with 18 suspended; and 3 years on the firearm count). Id.

Sentencing On The Instant Offense

The final PSI was prepared by the Probation Officer on April 25, 1995 but was revised, on June 29, 1995, one week before sentencing to include the state conviction and sentence.

1.Offense Level

Pursuant to U.S.S.G. § 2K2.1(b)(5), the base offense level was 18. PSI at 5, ¶ 15. The revised PSI failed to increase the offense level to 20, pursuant to § 2K2.1(b)(4)(B), to account for the fact that as a convicted felon the defendant at the time of sentencing was now a "prohibited person".

2.Acceptance of Responsibility - U.S.S.G. § 3E1.1

The PSI did not award a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 because:

The defendant did not accept responsibility for involvement in the instant offense. Mr. Dewalt asserted he was traveling to South Boston, Virginia, with a friend, Gerald Neal, who had purchased a sawed-off shotgun. Mr. Dewalt claimed that Mr. Neal was travelling to New York City with the gun and he (defendant) was carrying a bag belonging to Mr. Neal containing the weapon. The defendant asserted he pled guilty to the offense, believing he would receive a "slap on the wrist." The defendant stated he gave police an alias when he was arrested, revealing he had been told to give an alias if ever arrested. The defendant stated he believed Mr. Neal was taking the weapon to New York City to sell it illegally.

PSI at 5, ¶ 13.

In response to the defendant's objection to being denied a downward adjustment for acceptance of responsibility, the probation officer prepared an addendum to the PSI. The addendum notes that when the defendant was interviewed by a probation officer from the Eastern District of Virginia the defendant "denied knowing the weapon was in a bag he was carrying". PSI at 12; see Objection to PSI, filed April 18, 1995 (A 17); see also Sentencing Hearing at 11-12 (ST 11-12, Tab B).

At the sentencing hearing, defense counsel asserted that at the center of the dispute over acceptance of responsibility was the probation officer's misunderstanding of the defendant's description of the events that led up to his possession of the shotgun (ST 5-8, 15-16, Tab B). Defense counsel argued that the probation officer mistook as a denial of responsibility, the defendant's statement that he initially had been unaware that Neal, the person with whom he was travelling and for whom he carried the gun, had placed the shotgun in the blue bag (ST 5-6, 13-14, Tab B).

It was ludicrous to conclude that defendant had denied knowledge of the shotgun, defense counsel argued, when he had admitted that very fact to all others connected with the criminal justice system (ST 6, Tab B). In pleading guilty, defendant had admitted his knowing possession to the district court (ST 4, Tab B). During a debriefing by the Assistant United States Attorney, in contemplation of the cooperation plea, defendant had fully admitted "his role, what he was doing, how he came to do that" (ST 4-5, Tab B). Defense counsel also represented that defendant had admitted responsibility and disclosed his involvement to her (ST 5, Tab B).

Lastly, defense counsel asserted that a number of factors pertinent to the accuracy of the information contained in the PSI contributed to the misunderstanding, namely (1) that the PSI interview had been conducted without the assistance of counsel though counsel had requested to be present, (2) by a probation officer in Virginia rather than by the local probation officer who prepared the PSI, and (3) that the local probation officer had not attempted to clarify the misunderstanding directly with the defendant after the objection had been filed (ST 5-8, Tab B). As a result, defense counsel asked the district court to question the defendant directly and ascertain for itself the extent of the defendant's admission of his involvement and acceptance of responsibility for the offense (ST 6, Tab B).

The defendant, who has a ninth-grade education and suffers from a learning disability, tried to explain to the district court how he had been misunderstood. PSI at 8, ¶¶ 36, 38-39. During his allocution, the defendant explained what he had told the probation officer:

THE DEFENDANT: Your Honor, as the lawyer stated that I didn't take full responsibility for knowing the weapon was in the bag, I stated -- presentence folks asked me what happened. He never came directly to and asked, "Well, Mr. Burgess, do you accept responsibility for the weapon?"

He asked me what happened. "What was the story? What was your story? What went down when you were caught with the gun in the bus station?"

I told him the story. He never came directly to me and asked me any question about do I want to take full responsibility for it.

And, therefore, I didn't know what to say, you know; I didn't go into that part of the story; but I just told him what exactly happened and that was the end of the story.

Sentencing Hearing at 15-16 (ST 15-16, Tab B). The district court did not ask the defendant any questions.

In denying the adjustment for acceptance of responsibility, the district court stated:

I might say I find the argument that you did not know there was a gun in that bag incredible. With the weight of a sawed-off shotgun and the configuration of such, I simply could not believe that you'd be unaware of what's in that.

Sentencing Hearing at 19 (ST 19, Tab B).

3.Criminal History

Because the defendant had no prior convictions, his criminal history category was initially calculated as I. PSI at 6, ¶ 27. Although the defendant committed and sustained the conviction for the state offense subsequent to the instant offense, the state conviction resulted in the addition of three criminal history points. This increased the defendant's criminal history category from I to II. PSI Revision at 2-3.

4.Sentencing Range

The increased criminal history in the revised PSI increased the defendant's sentencing range from 27 - 33 months (OL 18, CH I) to 30 - 37 months (OL 18 - CH II). PSI at 9, ¶ 46; PSI Revision at 2-3.

5.Consecutive Sentence and U.S.S.G. § 5G1.3

The defendant requested that the district court impose the sentence, pursuant to U.S.S.G. § 5G1.3(c), to run concurrently to the Virginia undischarged term of imprisonment (ST 8-10, 14-15, Tab B). The Probation Officer incorrectly informed the court that U.S.S.G. § 5G1.3(a) was the applicable guideline and that the sentence must therefore be imposed to run consecutively to the undischarged state term (ST 12-13, Tab B). The government, without reference to the requirements of § 5G1.3, also argued that the sentences should run consecutively (ST 17-18, Tab B).

Without undertaking the grouping methodology required by § 5G1.3(c), the district court imposed the sentence to run consecutively to the state sentence (ST 20, 23, 26-28, Tab B). When defense counsel requested a specific ruling on the applicability of § 5G1.3(c), the district court took a short recess and retired to chambers with the probation officer (ST 23, 26-28, Tab B). Upon reconvening after a 21-minute recess, the district court again imposed the sentence to run consecutively following this colloquy with defense counsel:

THE COURT: Okay. Ms. Rainey, your specific question was do I find 5G1.3(c) or (a) applicable.

[Counsel]: Yes.

THE COURT: As I switch back and forth there, I'm not sure exactly what it is you're asking about.

[Counsel]: Specifically, subsection (c). Actually, Your Honor, it's the entire provision there, 5G1.3, that I believe that has to be addressed. And my position is that subsection (c) specifically applies to our set of facts.

THE COURT: Well, it comes closer to it than anything else. I think (a) does not apply.

[Counsel]: I agree.

THE COURT: Subsection (c) comes the closest to applying. It says: "In any other case the sentence for the instant offense shall be imposed consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense."

This really is sort of a backward situation from the way this is written in that the undischarged term of imprisonment arose from the offense committed before we were able to sentence him in this case. He committed it while he was on release in this case.

In any event, we have not wanted to hold you all up. The probation officer has advised me that he will go back and do more intensive research.

In the meantime, I conclude that the two sentences shall be consecutive since that is necessary to achieve a reasonable incremental punishment for the instant offense.

Also, the overall tenor of the guidelines generally provides that sentences shall be consecutive rather than concurrent. But as all of us rather painfully know, the sentencing guidelines are almost 400 pages in length; and then when we get hit with unanticipated problems, it's hard to put one's finger right away on the precise section.

. . .

Okay. So I will hear from Probation. Assuming what I said and concluded is confirmed by the communication I receive later from Probation, we will not get back together. If there is any change, we will communicate with you promptly.

Sentencing Hearing (ST 26-29, Tab B).

After imposition of the sentence on July 5, 1995, the district court did not hold any other hearings. On July 11, 1995, the district court signed the final Judgment and Commitment Order (A 18).

SUMMARY OF ARGUMENT

ARGUMENT

I.THE GUILTY PLEA WAS NOT KNOWING AND WAS ENTERED IN A PROCEEDING THAT WAS NOT IN COMPLIANCE WITH RULE 11, FED.R.CRIM.P., BECAUSE TWO ELEMENTS OF THE OFFENSE WERE OMITTED WHEN THE NATURE OF THE CHARGE WAS EXPLAINED TO THE DEFENDANT AND NO FACTUAL BASIS FOR THOSE ELEMENTS WAS ESTABLISHED AT THE PLEA HEARING

A.Standard of Review

Whether the defendant's guilty plea was knowing and voluntary is generally reviewed de novo. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995). A conviction must be vacated when it is entered pursuant to a plea taken in a proceeding that is not in compliance with Fed.R.Crim.P. 11. The burden is on the government to prove that a variance from the procedures required by Rule 11 is harmless. United States v. Lyons, 53 F.3d 1321, 1322 n. 1 (D.C. Cir. 1995).

Moreover, where the variance affects the substantial rights of a defendant, the error is not harmless. Fed.R.Crim.P. 11(h). See United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995); United States v. Watley, 987 F.2d at 848. Rule 11 variances which affect the defendant's decision to plead guilty are not harmless. United States v. Lyons, 53 F.3d at 1322. The nature of the charge, including "an understanding of the law in relation to the facts" is one of the most important components of the "constitutionally required determination that the defendant's guilty plea is truly voluntary. McCarthy v. United States, 394 U.S. 459, 465-467 (1969) (holding that the core concerns of Rule 11 are the defendant's understanding of the "nature of the charge", the "consequences of his plea", and the "existence of a factual basis for the plea").

B.Section 5861(d) Requires Proof, Among Other Things, That The Weapon In Question Is A "Firearm" As Defined Under The National Firearms Act And That The Defendant Knew That The Weapon In His Possession Had Characteristics Which Brought It Within The Scope Of The Act

Section 5861(d) makes it "unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration Record." 26 U.S.C. § 5861(d). For the purposes of § 5861(d), "firearm" includes machineguns, shotguns and rifles, with short barrels, but "excludes the more common types of guns such as most ordinary rifles, shotguns, and handguns". United States v. Harris, 959 F.2d 246, 259 (D.C. Cir.), cert. denied, 113 S.Ct. 362 (1992). See 26 U.S.C. § 5845(a).

As this Court explained in Harris, presaging the Supreme Court's decision in Staples v. United States, 114 S.Ct. 1793 (1994):

In prosecutions under section 5861(d), unlike those under section 924(c), the defendant is not necessarily someone who has already been proven to have engaged knowingly in criminal behavior with the very gun in question. Instead, it might be any person who has come into the possession of an automatic weapon, and who quite possibly has no reason to be aware that the weapon is "firearm" within the meaning of the statute.

. . .

We believe that if Congress, against the background of widespread lawful gun ownership, wished to criminalize the mere unregistered possession of certain types of firearms -- often indistinguishable from other, non-prohibited types -- it would have spoken clearly to that effect.

Harris, 959 F.2d at 259-261.

For this reason, a prosecution for possession of an unregistered sawed-off shotgun requires proof beyond a reasonable doubt that the defendant knew that the weapon he possessed had characteristics which brought it within the scope of § 5861(d). United States v. Starkes, 32 F.3d 100, 101 (4th Cir. 1994) (vacating conviction for possession of unregistered, sawed-off shotgun because jury had been instructed that so long as defendant knew that he possessed a gun of any type, he was strictly liable for possessing a proscribed "firearm") ; see also Staples v. United States 114 S.Ct. 1793 (1994)(finding that conviction under §5861(d) for possession of unregistered machine gun requires proof that defendant knew that his firearm had characteristics that brought it within statutory definition of machine gun); United States v. Harris, 959 F.2d at 261 (requiring mens rea in conviction for possession of unregistered machine gun).

C.The Rule 11 Proceeding Was Deficient Because The District Court Did Not Properly Explain The Mens Rea Required For A Violation Of § 5861(d) And Did Not Ascertain That The Defendant Possessed The Requisite Mens Rea

A guilty plea cannot be truly voluntary unless the defendant understands the interplay of the law to the facts. McCarthy v. United States, 394 U.S. at 466. In taking the defendant's guilty plea, the district court did not properly explain to him the nature of a § 5861(d) violation. Nowhere in the record of the Rule 11 proceeding, is there any mention that the shotgun in question had a barrel less than 18 inches long such as to fit the statutory definition of "firearm". More importantly, there is not a single reference to whether the defendant knew that the shotgun had a shortened barrel.

Rule 11 expressly commands a district court, among other things, to explain to the defendant the nature of the charge, to ascertain that he understands it and to satisfy itself that there is a factual basis for the plea. See Rule 11(c), (d), & (f), FED.R.CRIM.P. The purpose of these requirements is two-fold. First, they assist the district court in making the necessary determination that the defendant's waiver of his constitutional rights to a jury trial, to confront his witnesses, and to be free from compelled self-incrimination is knowing and voluntary. McMcarthy v. United States, 394 U.S. at 465-66. Second, the requirements are intended to generate a contemporaneous and thorough record of the voluntariness inquiry to permit expeditious resolution of any post-conviction challenges. Id.

Here, the record of the guilty plea reveals an admission by the defendant that on July 5, 1994, he carried a bag which contained an unregistered shotgun (PT 12-13, Tab A). The defendant was never told by the district court that possession of an unregistered shotgun did not make him guilty of the crime charged unless he also knew that the shotgun had a shortened barrel. This is especially significant because there is no evidence that the defendant, who was eighteen years old, with no prior arrests or convictions, and with a limited education, had any particularized knowledge of the criminal law or of guns and their characteristics. Compare United States v. Watley, 987 F.2d 841, 844 (D.C. Cir. 1993)(vacating plea and reversing district court's refusal to grant motion to withdraw plea even though defendant who had a criminal history category three and some understanding of pleas and sentences had been misinformed about the mandatory nature of the sentence he would receive). The district court's failure to explain to the defendant the mens rea element of the charge violated Rule 11(c).

Given the government's failure to mention the shortened barrel and the defendant's mens rea in its proffer of proof, it is unclear whether government counsel himself also was unaware of the requisite mens rea and limited reach of the registration requirement. Indeed, the plea agreement, which was signed the day of the Rule 11 hearing, sets out the maximum penalties yet also makes no mention of the type of shotgun involved, the length of the barrel, or the defendant's knowledge of the shortened barrel. See Plea Agreement at ¶ 1 (A 9).

Thus while it is clear that the defendant wished to plead guilty, it is not clear that he understood that the conduct to which he admitted does not actually fall within the charged offense. Such a plea cannot be said to be a knowing and voluntary "relinquishment ... of a known right" as is required for a valid waiver of constitutional rights. McCarthy v. United States, 394 U.S. at 466 citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Consequently, the district court also failed to comply with Rule 11(d)'s requirement that it insure that the plea is voluntary. See United States v. Watley, 987 F.2d at 845 (finding that "voluntariness" requirement of Rule 11(d) had not been met where defendant was "not equipped intelligently to accept plea" because he had been misinformed about the mandatory penalty he faced).

Lastly, there was a failure in this case to comply with Rule 11(f) which requires the district court to satisfy itself that there was a "factual basis for the plea". FED.R.CRIM.P. 11(f). The government failed to proffer proof of the shortened barrel and of the defendant's mens rea concerning that characteristic of the shotgun. The district court did not separately obtain an admission from the defendant on this point. Accordingly, the factual basis for the plea was not established.

A guilty plea that is not both knowing and voluntary "has been obtained in violation of due process and therefore void." McCarthy v. United States, 394 U.S. at 466. As in McCarthy, this Court should vacate the judgment and remand the case to permit the defendant to plead anew. Id. at 471-72.

II.THE DISTRICT COURT ERRED WHEN IT DEFERRED, UNTIL AFTER THE SENTENCING HEARING AND AFTER IT CONSULTED FURTHER WITH THE PROBATION OFFICER, MAKING A FINAL DETERMINATION WHETHER TO ORDER THE DEFENDANT'S SENTENCE TO RUN CONCURRENTLY OR CONSECUTIVELY

A.Standard Of Review

Whether the district court violated Rule 43(a) by deferring until after the sentencing hearing its determination whether to run the sentence concurrently or consecutively is reviewed de novo. United States v. Lastra, 973 F.2d 952 (D.C. Cir. 1992).

B.The District Court Violated The Defendant's Right, Guaranteed By The Sixth Amendment And Federal Rule of Criminal Procedure 43(a), To Be Present At His Sentencing

A defendant's right to be present at his own sentencing is constitutionally protected by the Sixth Amendment's Confrontation Clause and embodied in Rule 43(a), FED.R.CRIM.P. United States v. Lastra, 973 F.2d at 955. In Lastra, this Court vacated the sentence because the district court deferred until after the sentencing hearing its final determination whether to impose the sentence to run concurrently or consecutively to an undischarged term of imprisonment. 973 F.2d at 954. As in this case, the district court in Lastra had deferred its final decision to research the effect of U.S.S.G. § 5G1.3 on the sentence to be imposed. Id.

Judge Buckley explained this Court's decision to vacate the sentence:

It suffices that, on the record before us, it is quite possible that the district court had reserved the right to sentence Lastra consecutively rather than concurrently. This being the case, we cannot consider the earlier sentencing proceeding, at which the defendant was present, as "final".

. . .

Rule 43(a) requires the defendant's presence for all but the most ministerial of sentencing actions. In applying it, form is as important as substance because a defendant's presence at this sentencing is the best guarantee of his right of allocution; at the same time, it encourages public confidence in the fairness of the proceedings. Because we cannot say that the district court's decision was merely ministerial, we must vacate her sentence and remand the case for resentencing.

United States v. Lastra, 973 F.2d at 956.

In this case, the district court at sentencing expressly reserved the right to change the sentence once the probation officer reported back to the court, after the sentencing hearing, on the result of his research concerning the application of § 5G1.3. In imposing sentence, the district court stated:

In any event, we have not wanted to hold you all up. The probation officer has advised me that he will go back and do more intensive research.

In the meantime, I conclude that the two sentences shall be consecutive ...

Sentencing Hearing at 27 (ST 27, Tab B) (emphasis added). Once

again before concluding the proceeding, the district court

affirmed that the sentence he had announced was conditional:

Okay. So I will hear from Probation. Assuming what I said and concluded is confirmed by the communication I receive later from Probation, we will not get back together. If there is any change, we will communicate with you promptly.

Sentencing Hearing at 29 (ST 29, Tab B).

Although the record does not reveal the nature or extent of any additional communication with the probation officer, the district court delayed until July 11, 1995, six days after the hearing, signing the Judgment and Commitment Order (A 18). See Sentencing Hearing at 27, 29 (ST 27, 29, Tab B). By using the term "in the meantime" and reiterating that the sentence would remain tentative until the probation officer furnished additional information, the district court clearly expressed that the sentence lacked finality. The district court's deferral of its final sentencing determination until after the hearing falls squarely within the prohibition stated in Lastra. The sentence must therefore be vacated.

Moreover, FED.R.CRIM.P. 32 grants the defendant the right to review and comment on any determinations made by the probation officer that relate "to the appropriate sentence". FED.R.CRIM.P. 32(b)(6)(C) & (c)(1). Under Rule 32, any determinations made by the probation officer as a result of its "more intensive research" that the sentence should be imposed consecutively was required to be disclosed to the defendant for his comment. The district court's failure to disclose to the defendant the probation officer's determination on the application of § 5G1.3 also requires reversal of the sentence. See also Cite

III.THE DISTRICT COURT ERRED WHEN IT DENIED THE DEFENDANT A DOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY ON THE BASIS THAT HE DENIED KNOWING THAT THE SHOTGUN WAS IN THE BAG IN HIS POSSESSION

A.Standard of Review

The factual findings made by the district court in denying an adjustment for acceptance of responsibility is reviewed for clear error. United States v. Reid, 997 F.2d 1576 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 1105 (1994). "Purely legal questions" involving application of the guidelines are reviewed de novo. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994)See novoAs with other guidelines

B.The District Court Was Bound By Its Earlier Finding At The Rule 11 Proceeding That The Defendant Had Admitted Knowing Possession of The Shotgun

The district court clearly erred when it denied the defendant a downward adjustment for acceptance of responsibility on the ground that he was not fully admitting his guilt. See Sentencing Hearing at 19 (finding incredible the defendant's statement that he "did not know there was a gun in the bag" (ST 19, Tab B)). This finding is inconsistent with the earlier finding made by the district court, in accepting the defendant's guilty plea, that the defendant "acknowledge[d] that [he] was guilty as charged." Plea Hearing at 13 (PT 13, Tab A). See United States v. Vance, 62 F.3d 1152, 1158 (9th Cir. 1995).

At the guilty plea hearing, the defendant admitted under oath that he agreed with the proffer of proof made by the government (PT 13, Tab A). In accepting the plea and entering judgment upon the plea, the district court necessarily found that there was a "factual basis for the plea". FED.R.CRIM.P. 11(f). See Plea Hearing at 13 (PT 13, Tab A). The only predicates for the factual basis was the government's proffer and the defendant's admission that he agreed with the proffer. Because the knowing possession of the unregistered firearm is an element of a § 5861(d) charge to which defendant pleaded guilty, see Staples v. United States, supra, the district court "was bound by its finding, in accord with FED.R.CRIM.P. 11(f), that the plea was supported by an independent basis in fact containing each of the essential elements of the offense." United States v. Vance, 62 F.3d at 1158.

Moreover, the only evidence from which the district court could have found that the defendant denied knowing about the gun is the internally contradictory narration found in the PSI which includes a conclusory statement that the defendant "did not accept responsibility for involvement in the instant offense". PSI at 5, ¶ 13. Nothing in the subsequent narration supports a conclusion that the defendant denied knowing the gun was in the bag. To the contrary, the narration reveals the defendant's knowledge of the gun. Thus, the defendant is said to have asserted that he was traveling to Virginia, with a friend, "who had purchased a sawed-off shotgun." Id. There is a further reference to the defendant carrying his friend's bag which contained the weapon. Lastly, the defendant is said to have "believed that [the friend] was taking the weapon to New York City to sell it illegally." Id.

 At the sentencing hearing, the probation officer related that the Virginia probation officer, who had interviewed the defendant, told him that the defendant had denied knowing the bag had a gun in it when the defendant carried it off the bus. That narration is not inconsistent with the defendant's admission that he in fact knowingly possessed the gun at some point before he was arrested. Indeed, the record reveals that the person with whom the defendant momentarily left his bag, presumably the friend who had purchased the gun, had two other bags with him when they waited on the bus line. The fact that the defendant may not have initially known which of three bags contained the weapon, is not a denial that he knowingly possessed the gun. Indeed, the defendant's other admissions concerning when and by whom the gun had been purchased, that he had been advised to give an alias if arrested, and the gun would ultimately be sold in New York City, describe the type of detail that supports the conclusion that defendant had knowingly aided and abetter the possession and transportation of the shotgun. By volunteering those details to the probation officer, the defendant was admitting the conduct comprising the possession of the shotgun. The commentary to § 3E1.1 makes clear that entry of a guilty plea "constitute[s] significant evidence of acceptance of responsibility" where it is combined with an admission of the conduct comprising the offense of conviction. U.S.S.G. § 3E1.1, comment. (n. 3). Here, at the guilty plea hearing, the defendant, while under oath, admitted that he had done the acts proffered by the government. See also United States v. Vance, 62 F.3d at 1159. Lastly, as defense counsel argued below, it is not reasonable to conclude that the defendant would deny knowledge of the gun when he had pleaded guilty to possessing the gun and admitted his conduct to the district court; had admitted the conduct to the government during a proffer session; and had admitted his conduct to his counsel.

Under the circumstances, the district court clearly erred when it denied the defendant an adjustment for acceptance of responsibility on this basis.

IV.THE DISTRICT COURT ERRED WHEN IT ORDERED THE DEFENDANT'S SENTENCE TO RUN CONSECUTIVELY TO THE UNDISCHARGED TERM OF IMPRISONMENT IN VIOLATION OF THE REQUIREMENTS OF § 5G1.3 OF THE UNITED STATES SENTENCING GUIDELINES

A.Standard Of Review

Whether the district court correctly applied U.S.S.G. § 5G1.3 in determining to order a consecutive sentence is reviewed de novo. Williams v. United States, 112 S. Ct. 1112, 1120 (1993); United States v. , .

B.Section 5G1.3

Section 5G1.3 of the United States Sentencing Guidelines limits the discretion of district courts to order a sentence to run consecutively or concurrently on a defendant who is "already subject to an undischarged term of imprisonment." 18 U.S.C. § 3584; U.S.S.G. § 5G1.3, comment. (backg'd). United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994); United States v. Brewer, 23 F.3d 1317, 1321 (8th Cir. 1994). This guideline implements a number of Congressional directives to the Sentencing Commission concerning the imposition of sentences for multiple offenses. See 28 U.S.C. § 994(a)(1)(D)(requiring Commission to determine whether multiple sentences should be ordered to run consecutively or concurrently) & § 994(l)(requiring Commission to insure incremental punishment for offenses). It also promotes the primary goals of the guidelines -- uniformity and proportionality -- by limiting the disparity that would result among similar defendants if district courts were free to determine whether to order sentences to run concurrently or consecutively to undischarged terms of imprisonment. See 28 U.S.C. § 994(b)(1)(B). See also Questions Most Frequently Asked About the Sentencing Guidelines, No. 121, United States Sentencing Commission, Guidelines Manual, App. E (Nov. 1994) (West) ("MFAQ").

With respect to most cases, § 5G1.3 resolves the issue by requiring the district court to impose "an appropriate incremental punishment for the federal offense that most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time." U.S.S.G. § 5G1.3, comment. (backg'd). In this case, the "appropriate incremental punishment" required by § 5G1.3(b) or (c) was a sentence that was entirely concurrent or, in the alternative, almost wholly concurrent, with the ten-year undischarged term which the defendant is serving in the commonwealth of Virginia.

Section 5G1.3 consists of three subsections. Each succeeding subsection applies only if the previous subsection does not. Section 5G1.3 states:

Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment

(a)If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.

(b)If subsection (a) does not apply, and the 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 of imprisonment.

(c)(Policy Statement) In any other case, the sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.

U.S.S.G. § 5G1.3 (Nov. 1994).

It is clear that subsection (a) does not apply. On July 5, 1994, when the defendant committed the instant offense he was not "serving a term of imprisonment (including work release, furlough, or escape status)". U.S.S.G. § 5G1.3(a). Indeed, at that time, he had never been arrested for, charged with, or convicted of any other offense. PSI at 6, ¶¶ 25-27. Accordingly, § 5G1.3(a) does not apply.

Subsection (b) applies, although no one alerted the district court to this effect, because the state conviction should have been taken into account in setting the defendant's base offense level. See U.S.S.G. § 2K2.1(b)(4)(B). As subsection (b) requires the district court to make the instant sentence run concurrently with the undischarged state term of imprisonment, imposition of a consecutive sentence was in error.

If subsection (b) does not apply, imposition of a consecutive sentence was nevertheless in error. As discussed below, a proper application of the methodology required by § 5G1.3(c) results in a determination that the defendant's sentence must be made to run concurrently or almost wholly concurrently with the undischarged term.

C.Section 5G1.3(b) Requires Imposition Of A Concurrent Sentence Whenever The Conviction That Gave Rise To The Undischarged Term Is Taken Into Account In Determining The Offense Level For The Instant Offense

In determining the base offense level for the instant offense, possession of an unregistered firearm, one of the factors taken into account is whether the defendant "is a prohibited person". U.S.S.G. § 2K2.1(a)(4)(B). A "prohibited person" is defined as anyone who "is under indictment or has been convicted of, a 'crime punishable by imprisonment for more than one year,' as defined in 18 U.S.C. § 921(a)(20)." U.S.S.G. § 2K2.1, comment. (n.6). The state felony offenses of which defendant stood convicted fit within this definition.

Moreover, § 2K2.1(a)(4)(B), written as it is in the present tense, demonstrates that whether a defendant is a "prohibited person" must be determined in the present, sentencing for purposes of application of § 2K2.1. This contrasts, for example, with §§ 2K2.1(a)(1)-(2) which query whether the defendant "had at least two prior felony convictions". These latter provisions are written in the past tense because they refer to those "prior felony convictions" in existence at the time the offense was committed, the past for purposes of application of § 2K2.1. See Cite . The defendant's state offenses should thus have been taken into account in setting the offense level for the instant offense. See U.S.S.G. § 2K2.1(a)(4)(B); 2K2.1, comment. (n.3).

If the state offenses had been taken into account, the defendant's offense level would have been 20 rather than 18. Id. This would have triggered application of § 5G1.3(b) which applies when the offenses that gave rise to the undischarged term have been fully taken into account "in the determination of the offense level for the instant offense." U.S.S.G. § 5G1.3(b). Section 5G1.3(b) requires imposition of a sentence that is concurrent to the undischarged term.

D.Section 5G1.3(c) Requires a Court To Determine The Appropriate Incremental Punishment For The Instant Offense By Reference To A Hypothetical Guideline Range Which Groups The Instant Offense With The Offense Which Gave Rise To The Undischarged Term of Imprisonment As If Both Offenses Were Federal Offenses For Which A Sentence Were Being Imposed At The Same Time

Although § 5G1.3(c) misleadingly appears to require the imposition of consecutive sentences in situations falling within its purview, the explanatory commentary makes clear that § 5G1.3(c) dictates consecutive sentences only "to the extent necessary to achieve a reasonable incremental punishment for the instant offense." U.S.S.G. § 5G1.3(c). Indeed, the Commentary dictates the imposition of a concurrent, rather than a consecutive sentence, when one is sufficient to achieve a "reasonable incremental punishment." United States v. Holifield, 53 F.3d at 13.

The Commentary explains that

a reasonable incremental penalty [is] a sentence for the instant offense that results in a combined sentence of imprisonment that approximates the total punishment that would have been imposed under § 5G1.2 (Sentencing on Multiple Counts of Conviction) had all of the offenses been federal offenses for which sentences were being imposed at the same time.

U.S.S.G. § 5G1.3(c), comment. (n. 3) (emphasis added).

The methodology described in the Commentary is the common application procedure, found in Chapter 3, Part D of the Guidelines, for determining the offense level in cases involving multiple counts. District courts regularly apply this methodology for grouping multiple counts. See U.S.S.G. § 5G1.2; § 5G1.3(c), comment. (n.3). In this case, application of the methodology would not have been "unduly complicat[ed] or prolong[ed] the sentencing process". U.S.S.G. § 5G1.3(c), comment. (n.3). See United States v. Sorensen, 58 F.3d 1154, 1159 (7th Cir. 1995) (holding that district court would not be free to disregard § 5G1.3(c) methodology, as argued by the government on appeal, on the ground that it was unduly complicated where the state priors (armed robbery and aggravated assault) were not very esoteric or intricate, and had "relatively simple elements and federal equivalents"). The district court was thus required to apply the § 5G1.3(c) methodology.

The issue of the proper application the 1994 version of § 5G1.3(c) is one of first impression in this Court. In three previous cases that have mentioned § 5G1.3(c) either a materially different version of § 5G1.3(c) was at issue, see United States v. Lastra, 973 F.2d 952, 954 (D.C. Cir. 1992)(considering 1987 version but remanding on other grounds); United States v. Johnson, 970 F.2d 907, 915 (D.C. Cir. 1992) (considering 1990 version); there is no substantive discussion of the proper application of § 5G1.3(c), see United States v. Sobin, 56 F.3d 1423 (D.C. Cir. 1995); or both. Id.

In Sobin there is no reference to the methodology described in the Commentary to § 5G1.3 at issue in this appeal. In Sobin, a prosecution for bankruptcy fraud, the defendant had argued that § 5G1.3(b) was applicable. Sobin, 56 F.3d at 1429. This Court concluded that § 5G1.3(b) did not require that the sentence on the bankruptcy fraud run concurrent to seven, prior concurrent sentences, five of which were for sexual offenses. This Court then cited to § 5G1.3(c), concluding that the bankruptcy sentence

must therefore "be imposed to run consecutively" to [the prior] sentences "to the extent necessary to achieve a reasonable incremental punishment for the instant offense[s]," § 5G1.3(c). Because the five sexual offense sentences did not result at all from conduct taken into account here, the district court properly imposed fully consecutive sentences as "reasonable incremental punishment" for the instant offenses.

United States v. Sobin, 56 F.3d at 1430 (emphasis original). This is the entire reference to § 5G1.3(c).

Significantly, Sobin does not disclose what version of the guidelines was under consideration though it appears from the citations to § 5G1.3(b) that the manual in effect on November 1, 1991 was at issue. See U.S.S.G. App. C, amendments 385 & 465. This was possible because the manual in effect on the date the offense was committed in lieu of the one in effect on the date of sentencing may at times be required by the ex post facto clause. See U.S.S.G. § 1B1.11. Sobin had filed for bankruptcy in May, 1987 but the fraudulent acts were apparently undertaken prior to and subsequent to the filing. See Sobin, 56 F.3d at 1425-26. As Sobin surrendered himself to the FBI in May, 1992, it is unlikely that the offense continued beyond that date. See Id. Sobin was sentenced in July, 1993. Id. at 1426. There have been material amendments to §§ 5G1.3 (b) and (c) effective November 1, 1989, 1991, 1992, and 1993. See U.S.S.G. App. C, amendments 289, 385, 465 & 494, respectively. The explicit application examples found in the commentary to § 5G1.3(c) which are at issue in this appeal and to which this Court in Sobin made no reference did not come into effect until November 1, 1992, after the offenses in Sobin were committed. Sobin, thus, does not constrain this Court's analysis in this appeal.

1.Grouping Methodology of § 5G1.3(c)

The § 5G1.3(c) methodology requires a district court to calculate a hypothetical guideline range based on the instant offense and the offense which gave rise to the undischarged term of imprisonment. U.S.S.G. § 5G1.3(c), comment. (n. 3); see, e.g., United States v. Sorensen, 58 F.3d at 1157-58; United States v. Wiley-Dunaway, 40 F.3d 67, 70-71 (4th Cir. 1994). As a first step, the district court must calculate an offense level for the offense that gave rise to the undischarged term as if the offense were a federal offense. Id. Once that hypothetical offense level is determined, the district court must group the two offense levels (the hypothetical offense level and the offense level for the instant offense) using the grouping rules in Chapter 3, Part D. Id. With this combined offense level, the district court is able to determine the hypothetical guideline range from the sentencing table. Id. This sentence imposed on the offenses that give rise to the undischarged term is then subtracted from the hypothetical, combined range to determine the "reasonable incremental punishment", if any, that should be imposed on the instant offense. Id.

If the district court needs to impose additional time to have the sentence fall within the hypothetical range, it can order the sentence to run consecutively to the undischarged term. Id. When the previously imposed sentence is equal to or exceeds the hypothetical range, then no additional incremental punishment is necessary and the district court must order the sentence to run concurrently. Id. The district court may, but is not required to, depart from the instant guideline range in order to impose a "reasonable incremental punishment". United States v. Holifield, 53 F.3d 11, 16 (3d Cir. 1995); Wiley-Dunaway, 40 F.3d at 71. Moreover, although the district court may, when it believes it justified, impose a sentence that is greater than the "reasonable incremental punishment", in doing so it "must follow usual guideline procedures ... providing specific reasons for doing so." Marsanico, 61 F.3d at 669.

2.The Virginia Offenses Produce An Offense Level Of 22 For The Robbery To Be Followed By A Five-Year Consecutive Term Of Imprisonment For The Use Of A Firearm In The Commission Of A Felony

The first step in the § 5G1.3(c) methodology is to calculate an offense level for the offense that forms the basis of the undischarged term of imprisonment -- here, the Virginia state convictions for robbery and use of a firearm in the commission of a felony. The guideline for robbery is found at U.S.S.G. § 2B3.1. The guideline for use of a weapon in the commission of a felony is found at U.S.S.G. § 2K2.4.

a.Robbery

The robbery guideline sets the base offense level at 20. U.S.S.G. § 2B3.1(a). A two-level adjustment for bodily injury is added because the codefendant in the robbery case used the butt of a gun to hit the victim in the back of the head. See U.S.S.G. § 2B3.1(b)(3)(A); 1B1.1, comment. (n.1(b)); PSI at 6, ¶¶ 28-29. This results in an offense level of 22.

b.Use Of A Firearm In A Felony

  In the federal system, a prosecution for use of a firearm in the commission of a felony, such as robbery, requires a mandatory, minimum, consecutive five-year term of imprisonment. See 18 U.S.C. § 924(c); U.S.S.G. § 2K2.4. As a result, no other guideline calculation is required for the use of the firearm.

The Virginia offenses would thus produce an offense level of 22 to be followed by a five-year term of imprisonment.

3.The Hypothetical Combined Range For The Instant Offense and the Virginia Offenses Is 111 To 123 Months

The second step in the § 5G1.3(c) methodology is to group the instant offense with the Virginia offenses to determine a hypothetical, combined guideline range. See U.S.S.G. §§ 3D1.1 - 3D1.5. The conviction for use of a firearm in the commission of an offense is excepted from the grouping procedure, however. U.S.S.G. § 3D1.1(b).

Under § 3D1.4, the offense level (22) for the Virginia robbery generates one unit. U.S.S.G. § 3D1.4(a). The offense level (18) for the instant offense generates another unit. Id. Two units increase the highest offense level by 2 levels. U.S.S.G. § 3D.1.4. The combined offense level for the Virginia robbery and the instant offense is, therefore, 24.

An offense level of 24 and a criminal history I produces a guideline range of 51 to 63 months. The total punishment required under § 5G1.2 of the guidelines had the Virginia offenses and the instant offense been sentenced at the same time is a range of 51 to 63 months to be followed by a 5-year consecutive sentence for the use of the firearm.

4.The Maximum Incremental Punishment For The Instant Offense Is Three Months Consecutive To The Undischarged Term

The third step in the § 5G1.3(c) methodology is to fashion a sentence, within the guideline range for the instant offense, which best approximates the appropriate incremental punishment. U.S.S.G. § 5G1.3(c), comment. (n.3). The range for the instant offense was 30 to 37 months; the hypothetical combined range is 111 to 123 months; and at the time of sentencing on July 5, 1995, the defendant was serving a ten-year sentence in Virginia which had been imposed on April 14, 1995 and for which he had been incarcerated since his arrest for that offense on November 14, 1995. As of July 5, 1995, the defendant had already served 7 months and 20 days with a remaining undischarged term of 9 years and 4-1/3 months.

Under § 5G1.3(c), the maximum incremental punishment called for by § 5G1.3(c) was thus a sentence of 3 months (111 to 123 months less the 120 months imposed for the state offenses). A sentence of 37 months, with 3 months to be served consecutively and 34 months "to be served concurrently with the remainder of the undischarged term of imprisonment would (1) be within the guideline range for the instant offense, and (2) achieve an appropriate total punishment" (123 months). See U.S.S.G. § 5G1.3(c), comment. (n. 3(A)).

C.Error

Section 5G1.3(c) requires a methodology that, as with other policy statements and commentary, is binding on the courts. See Stinson v. United States, 113 S.Ct. 1913, 1917 (1993); United States v. Hernandez, 64 F.3d 179, 182-83 (5th Cir. 1995); United States v. Wiley-Dunaway, 40 F.3d 67, 70-71 (4th Cir. 1994); United States v. , F.2d (D.C. Cir. 1992). The district court did not calculate an offense level for the Virginia offenses. The district court also did not identify the "reasonable incremental punishment" as that term is defined in § 5G1.3(c). It is clear, therefore, that the district court did not apply the methodology required by § 5G1.3(c). Under the circumstances, the case must be remanded to the district court to apply § 5G1.3(c). See United States v. Sorensen, 58 F.3d at 1159.

In place of the § 5G1.3(c) methodology, the district court relied on "the overall tenor of the guidelines" which, the court believed, favors consecutive sentences (A 27, Tab B). In fact, there is no such preference expressed in the guidelines. Compare U.S.S.G. § 5G1.2. Indeed, a contrary principle which seeks to provide "incremental" rather than unguided cumulative punishments may be seen at work in the grouping rules of Chapter 3 and §§ 5G1.2 & 5G1.3(c). Nevertheless, even if the district court were correct in its assessment of a "general tenor", where the guidelines expressly provide guidance on an issue, a district court is not free to disregard it in favor of an undefined alternative. See United States v. Valentine, 21 F.3d 395, 397 n. 5 (11th Cir. 1994) (noting that imposition of sentence that the district court "deemed appropriate, regardless of what the sentencing guidelines mandated ... [without] provid[ing] factual foundation to justify [the] sentence ... [is] th[e] type of baseless, unguided enhancement [that] destroys uniformity of sentences and undermines the purposes of the sentencing guidelines.") This amorphous type of discretionary determination is exactly the type of decision-making that the guidelines were intended to eliminate.

II.ACCEPTANCE OF RESPONSIBILITY

CONCLUSION

For all these reasons, this Court should vacate the conviction and remand this case for further proceedings to permit the defendant to plead anew or, alternatively, this Court should vacated the sentence and remand this case to the district court for resentencing with instructions that the district court reconsider its determination with respect to the acceptance of responsibility adjustment and to follow the methodology set out under U.S.S.G. § 5G1.3(c).