UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 28, 1995
UNITED STATES OF AMERICA
THEODORE M. SABARESE, APPELLANT.
On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 93-cr-00389-1)
Before: SCIRICA, COWEN and ROTH, Circuit Judges
ROTH, Circuit Judge
Argued October 19, 1995
Filed November 28, 1995)
OPINION OF THE COURT
Theodore Sabarese was sentenced to a term of imprisonment by the United States District Court for the District of New Jersey after being sentenced to a term of probation by the United States District Court for the Eastern District of Pennsylvania. He now challenges the New Jersey prison sentence claiming that, pursuant to the United States Sentencing Guidelines, a subsequent sentence for a related offense must be imposed concurrently. He argues that the New Jersey district court was constrained by Section(s) 5G1.3 of the Guidelines, read in conjunction with 18 U.S.C. Section(s) 3564(b), to impose either a probationary term or a prison sentence of no longer than 30 days. Finding no merit in Sabarese's challenge, we will affirm the New Jersey district court's sentence. *fn1
Sabarese played a key role in a scheme to defraud financial institutions by obtaining loans that exceeded the market value of the boats and airplanes financed. Sabarese was convicted after a trial in Pennsylvania on a two-count indictment charging him with making false statements on loan applications in order to obtain financing for non-existent yachts. After his conviction in Pennsylvania, Sabarese entered a guilty plea on a one-count indictment returned against him in Connecticut. The Connecticut case was transferred to the Eastern District of Pennsylvania where the judge sentenced Sabarese on the two Pennsylvania counts and the one Connecticut count.
Under the Sentencing Guidelines, Sabarese could have been sentenced by the Pennsylvania court to a prison term of 24 to 30 months. The presentence investigation report ("PSI") noted Sabarese's involvement in the "related" New Jersey scheme. The district court in Pennsylvania agreed that the conduct in New Jersey was related, which allowed the judge to elevate the offense conduct level by two points. Upon motion of the Government, however, the judge granted a substantial downward departure and sentenced Sabarese to concurrent five-year probationary terms, conditioned on three months house arrest and a payment of restitution in the amount of $1,170,511.
After he was convicted and sentenced in Pennsylvania, Sabarese pled guilty to the charges brought against him in New Jersey. The New Jersey indictment charged Sabarese with a total of thirty counts: one count of conspiracy, six counts of bank fraud, and twenty-three counts of wire fraud. These counts stemmed from a conspiracy to obtain financing for airplanes. The New Jersey judge concluded that the airplane fraud was not related to the boat fraud in Pennsylvania.
Under the Sentencing Guidelines, Sabarese could have been sentenced to prison for a term of 24 to 30 months for the New Jersey convictions. However, because of Sabarese's substantial assistance, the Government again moved for a downward departure. The New Jersey district court granted the Government's motion, sentencing Sabarese to sixteen months imprisonment, three years supervised release, and restitution totaling $439,000.
Sabarese's principal argument is that the language of Section(s) 5G1.3 of the Guidelines required the district court in New Jersey to impose a sentence that would run concurrently with the sentence imposed in the Eastern District of Pennsylvania. The parties agree that the 1988 version of the Guidelines applies in this case. In 1988, Section(s) 5G1.3 provided:
If at the time of sentencing, the defendant is already serving one or more unexpired sentences, then the sentences for the instant offense(s) shall run consecutively to such unexpired sentences, unless one or more of the instant offense(s) arose out of the same transactions or occurrences as the unexpired sentences. In the latter case, such instant sentences and the unexpired sentences shall run concurrently, except to the extent otherwise required by law. U.S.S.G. Section(s) 5G1.3 (Oct. 1987).
Sabarese claims that the district court in New Jersey was bound by the finding in the Eastern District of Pennsylvania that the fraud schemes were "relevant and related." He argues that the term "relevant and related" is defined in Section(s) 1B1.3 of the Guidelines and should be construed as being synonymous with the phrase "a[rising] out of the same transactions or occurrences" of Section(s) 5G1.3. He then contends that the "relevant and related" finding in the Eastern District of Pennsylvania, taken together with the language of Section(s) 5G1.3, mandates a sentence that would run concurrently with Sabarese's unexpired Pennsylvania probationary term. *fn2
Sabarese next turns to 18 U.S.C. Section(s) 3564(b) and argues that the only type of sentence which can run currently with a sentence of probation is a sentence of imprisonment for less than thirty days or a sentence of probation. Section 3564(b) provides in pertinent part: "A term of probation does not run while the defendant is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than thirty consecutive days." 18 U.S.C. 3564(b). Combining this language with his Section(s) 5G1.3 argument, Sabarese concludes that the district judge was constrained by the Guidelines and Section(s) 3564(b) to impose a sentence of imprisonment of less than thirty days imprisonment or a sentence of a concurrent probationary term. We disagree.
We hold that the district judge in New Jersey was not so confined in imposing sentence by the provisions of Section(s) 3564(b). This section merely clarifies that a term of probation will run only during a concurrent term of probation or during a sentence of imprisonment of less that 30 consecutive days. Section 3564(b) does not require that a subsequently imposed sentence be of any certain term or of any particular type, such as a sentence of incarceration, of a fine, of community confinement, or of probation. There is no reason to believe that either Congress or the Sentencing Commission intended Section(s) 5G1.3 and 3564(b) to be read in a conjunctive or restrictive manner. Moreover, the use of the term "sentence" in Section(s) 5G1.3 clearly refers to a sentence of imprisonment. Otherwise, the language of Section(s) 5G1.3 would make no sense. A sentence imposing a fine cannot run concurrently or consecutively with a sentence of 12 months imprisonment.
Moreover, even if the Pennsylvania and the New Jersey offenses were considered to arise from the same transaction or occurrence, the Guidelines provision in Section(s) 5G1.3 could not trump the statutory provision of Section(s) 3564(b). See United States v. Nottingham, 898 F.2d 390, 393 (3d Cir. 1990). Indeed, even if the offenses did arise from the same transaction or occurrence, the "except to the extent otherwise required by law" language of Section(s) 5G1.3 would incorporate by reference into Section(s) 5G1.3 the provision of Section(s) 3564(b) that a term of probation may not run concurrently with a sentence of imprisonment (unless that sentence of imprisonment is for less that 30 consecutive days). If the term of imprisonment cannot run concurrently with the sentence of probation, the terms of imprisonment and of probation will have to run consecutively. It is distorted logic to interpret Section(s) 3564(b) to permit a sentence, imposed pursuant to a two-count indictment, to limit a sentence, imposed on the basis of a thirty-count indictment, simply because the two-count indictment was tried first. We reach this conclusion whether the offenses are "related" or not. *fn3
We conclude, therefore, that the sentence of the sixteen month term of imprisonment was properly imposed by the district court in New Jersey and that Sabarese must serve that term; his sentence to three-years of supervised release will then run concurrently with the five-year probationary term imposed in the Eastern District of Pennsylvania.
For the foregoing reasons, the judgment of sentence imposed on Sabarese by the New Jersey district court will be affirmed. *fn4