United States v. Richard D. Pedrioli, (Two Cases)

Appellant pled guilty to one count of smuggling handguns into the Philippines in violation of 22 U.S.C. § 2778 . While he was out on bail awaiting sentencing, he was again caught smuggling guns. A separate indictment was brought for this second smuggling attempt to which appellant also pled guilty. The indictments were consolidated for sentencing and appellant was given consecutive sentences. He appeals, claiming that he should have received overlapping sentences.

It is undisputed that the guidelines required appellant’s sentences to overlap (see U.S.S.G. § 5G1.2 and § 3D1.2); the question is whether the district court nonetheless retained discretion to give consecutive sentences. Although appellant argues that the guidelines absolutely restrict the district court’s discretion in this instance, we have already determined that the district court retains discretion under 18 U.S.C. § 3584 (a) to sentence either concurrently or consecutively despite the guidelines. United States v. Wills, 881 F.2d 823 (9th Cir.1989).

The more difficult question is whether a district court is obliged to follow the usual procedures for departing from the guidelines when it elects to use its discretion…