Сборник текстов для перевода. Борисова Л.А. - 53 стр.

§ 2314, and interstate transportation of a stolen motor vehicle in violation of 18
U.S.C. § 2312. He raises two issues. First, he contends that the district court
erred at sentencing by enhancing his base offense level by three levels pursuant
to U.S.S.G. § 3A1.2(b) (official victims) and by two levels pursuant to U.S.S.G.
§ 3C1.2 (reckless endangerment). Austin argues that the conduct underlying the
enhancements formed the basis of a term of imprisonment imposed by a Massa-
chusetts state court for offenses related to the federal violations. Second, Austin
contends that the district court erred at sentencing by aggregating Counts One,
Four, and Five, and by aggregating the value of the money taken in the bank
robbery and the value of the stolen vehicle transported interstate, which resulted
in a one level enhancement to his base offense level pursuant to U.S.S.G. §
2B3.1(b)(7). The district court had jurisdiction pursuant to 18 U.S.C. § 3231.
We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742 (a)(2). We affirm in part, vacate in part, and remand for
resentencing.
       Austin’s presentence report (Report) recommended an adjusted offense
level of 32 for Count One and an adjusted offense level of 26 for Count Three.
The Report grouped together Counts Four and Five pursuant to U.S.S.G.
§ 3D1.2(d) and recommended a combined adjusted offense level of 11. The Re-
port then grouped this subgroup with Count One pursuant to U.S.S.G.               §
3D1.2(c), and grouped Count Three with Count One pursuant to U.S.S.G.             §
3D1.2(c). Pursuant to U.S.S.G. § 3D1.3(a), the Report recommended a com-
bined offense level of 32, determined by the highest offense level of the counts
in the group, which was Count One. Austin's criminal history category was VI.
His total offense level and criminal history category together resulted in a sen-
tencing range of 210 to 262 months. U.S.S.G. § 5A. In addition, pursuant to
U.S.S.G. § 72K2.4, Count Two called for a mandatory 60-month consecutive
prison term.
       At the time of Austin's federal sentencing, he was serving a term of im-
prisonment imposed by the Commonwealth of Massachusetts for the related
state convictions. The Report stated that, because of this, U.S.S.G. § 5G1.3 was
implicated and concluded that, pursuant to provisions (b) or (c) of section
5G1.3, Austin's sentence could be imposed to run concurrently with, partially
concurrently with, or consecutively to the prior undischarged term of state im-
prisonment, depending on the circumstances.
       Austin argued for a fully concurrent sentence pursuant to U.S.S.G.
§ 5G1.3(b), with the exception of the 60-month mandatory consecutive sentence
(Count Two). He contended that because the recommended federal sentence
fully took into account conduct that formed the basis of his Massachusetts sen-
tence, section 5G1.3(b) required that his federal sentence run concurrently with
his undischarged state term. In addition, Austin argued that the Report's group-
ing of Counts Four and Five with Count One was improper under section 3D1.2
and resulted in an improper one-level enhancement under Count One.
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