Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Before ESCHBACH, COFFEY, and MANION, Circuit Judges.
ARGUED SEPTEMBER 26, 1996
DECIDED DECEMBER 23, 1996
In 1995, John Plantan pled guilty to one count of federal excise tax evasion in violation of 26 U.S.C. sec. 7201 pursuant to a plea agreement with the government. At sentencing, the court imposed a 24 month sentence, to be served consecutively to the sentence Plantan already was serving for a 1992 offense. Plantan appeals, claiming that the district court erred by refusing to impose his sentence concurrently in conformity with Application Note 3 of sec. 5G1.3(c) of the Sentencing Guidelines, such that he only would need to serve an additional 8 months in jail. The district court had jurisdiction pursuant to 18 U.S.C. sec. 3231; we have jurisdiction under 28 U.S.C. sec. 1291 and 18 U.S.C. sec. 3742. We now affirm the imposition of the consecutive sentence.
During 1988 and 1989, Plantan was committing fraud in Illinois. This was neither his first, nor his last, involvement in criminal activity. Plantan falsely represented to the owner of KBC Freightways, an Illinois interstate trucking company, that he wanted to buy the company on behalf of a group of wealthy investors. Based on this fiction, a business relationship developed between Plantan and the owners of KBC. During the next 10 months, Plantan wrote over $60,000 worth of unauthorized checks on KBC bank accounts. On December 9, 1992, Plantan pled guilty to wire fraud based on these activities in the Northern District of Illinois, and was sentenced to 41 months in prison.
Before the 1992 conviction came to be, however, Plantan entered the fuel industry in Indiana. From late 1991 through 1992, Plantan owned Bristol Enterprises, Inc. While operating Bristol, Plantan purchased low grade diesel fuel from distributors, tax free. He then resold the fuel after adding an ingredient from recycled oil to give the fuel a higher octane level such that it would boost mileage. Unfortunately, Plantan failed to file the required federal excise tax returns for the fuel he purchased. This failure resulted in a total tax loss to the government of $70,962. By the time Plantan was indicted for these activities, in April 1995, he was already serving time in Illinois for the 1992 wire fraud conviction. In July 1995, Plantan pled guilty to one count of excise tax evasion.
After determining the guidelines sentencing range to be 24 to 30 months, the district court sentenced Plantan to 24 months in prison. Pursuant to the plea agreement, the government did not object to Plantan's request that the tax evasion sentence run concurrently with his undischarged sentence for wire fraud. At the time of sentencing, Plantan had 16 months left to serve on his wire fraud conviction. Under a concurrent sentence, Plantan would serve 8 additional months on the tax evasion charge. The court, however, imposed the 24 month sentence to run consecutively to the undischarged sentence. Plantan appeals the imposition of a consecutive sentence, claiming the sentencing guidelines required the court to impose the sentence concurrently.
The Sentencing Guidelines applied to Plantan provide a formula for determining the sentence of a defendant who is already incarcerated. *fn1 U.S.S.G. sec. 5G1.3(c), comment, (n.3) (1994). This formula is intended to avoid sentencing disparity by ensuring that the total sentence for two offenses is the same regardless of whether the defendant was charged and convicted of the offenses at the same or different times. See United States v. McFarland, 37 F.3d 1235, 1236 (7th Cir. 1994). Because offenses are grouped for sentencing purposes when a defendant is charged for all offenses at the same time, a defendant charged separately for each offense ordinarily would serve significantly more time for the same acts. The guidelines avoid this result by providing a methodology to approximate the sentencing result if the offenses had been grouped as they would be if the defendant were charged for all offenses at once.
Under sec. 5G1.3(c) (1994), a policy statement, *fn2 "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." ...