                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   NOV 30 2000
                                    TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,                                 No.99-1238
 v.                                                     (D.C. No. CR-98-336-WM)
                                                              (D. Colorado)
 JAMES D. CASTLEBERRY,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.


       In this direct criminal appeal, we are called upon to examine a procedure under the

Sentencing Guidelines in effect before amendment in 1995. We also are presented with a

challenge to the restitution ordered by the district court. Our jurisdiction is conferred by 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

                                               I

       Defendant/appellant James D. Castleberry was indicted on eight counts arising out of

an allegedly fraudulent scheme involving the acquisition of a franchise of a business known



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
as Mailboxes, Etc. The scheme allegedly was carried out in 1995 and 1996. Mr. Castleberry

entered into a plea agreement under which he pleaded guilty to two of the eight counts, wire

fraud in violation of 18 U.S.C. §§ 2 & 1343, and bank fraud in violation of 18 U.S.C. §§ 2

& 1344.

        Mr. Castleberry previously had been convicted of mail fraud and embezzlement in the

United States District Court for the District of Minnesota. In sentencing Mr. Castleberry for

those crimes, the federal court in Minnesota determined that the guidelines sentencing range

was twenty-four to thirty months. The district judge departed upwards from the guidelines

range, however, and sentenced Castleberry to sixty months. That judgment was entered in

1997.

        In the instant case, the district court determined the guidelines sentencing range to be

fifteen to twenty-one months. III R. 58. The district court then faced the rather difficult

problem of applying U.S.S.G. § 5G1.3, which we discuss in Part II below, to determine what

part, if any, of the sentence should run consecutively to the Minnesota sentence and what

part, if any, should run concurrently with that previous sentence. For now, we will simply

note that the judge decided on a sentence of twenty-one months on each count, to run

concurrently with each other. The judge originally ordered six months of that sentence to

be served consecutively with the prior sentence, but he later amended his ruling and imposed

the sentence so that only three months is to be served consecutively. The judge also ordered

defendant to pay restitution in the amount of $126,658.26. Mr. Castleberry now appeals the


                                              -2-
decision that he serve three months of his sentence consecutively and the order of restitution.

                                               II

       Mr. Castleberry’s first challenge is to the district court’s application of U.S.S.G. §

5G1.3, which resulted in the decision that Castleberry would have to serve three months of

his sentence in the instant case consecutively to the Minnesota sentence. Castleberry

contends that the entire sentence should have been made to run concurrently with the

Minnesota sentence. The parties agreed below, and continue to maintain on appeal, that this

case must be governed by the 1994 version of the guidelines, and all references hereinafter

are to that version.

       In addressing this area before, we have observed that

       [i]n general, a district court has broad discretion in choosing to sentence a
       defendant to a consecutive or concurrent sentence. See 18 U.S.C. §§ 3553(a),
       3584(a), (b). The court’s discretion is confined, however, by § 5G1.3 of the
       Guidelines when it seeks to impose a consecutive or concurrent sentence upon
       a defendant subject to an undischarged term of imprisonment.

United States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994). Because this is an area of

trial court discretion, our review is for abuse of discretion, provided that the sentencing court

recognized the limits on its discretion set by the guidelines. See United States v. Burt, 134

F.3d 997, 1000 (10th Cir. 1998).

       The parties agree that the applicable guideline provision is section 5G1.3, subsection

(c). That subsection, which is identified as a Policy Statement, provides in pertinent part:

“[T]he sentence for the instant offense shall be imposed to run consecutively to the prior


                                               -3-
undischarged term of imprisonment to the extent necessary to achieve a reasonable

incremental punishment for the instant offense.” (Emphasis added.) The highlighted term,

“reasonable incremental punishment,” seems to be the touchstone for this narrow area of

sentencing issues. And the guidelines created a procedure for determining the “reasonable

incremental punishment.”

       It must first be noted, however, that this procedure is not required in all cases.

Instead, the application note states: “To the extent practicable, the court should consider” the

product of the procedure to be “a reasonable incremental penalty.” U.S. Sentencing

Guidelines Manual § 5G1.3, cmt. n.3 (amended 1995) (emphasis added). The procedure is

first to calculate a hypothetical sentence based on what would have happened had the two

proceedings been instead a single one. The court then is to calculate a hypothetical sentence

that would have been imposed “had all the offenses been federal offenses for which

sentences were being imposed at the same time.” Id. Defendant asserts that under this

procedure, the hypothetical sentence would have been a guidelines range of twenty-seven to

thirty-three months. The government does not dispute this assertion, which is said to be

consistent with a calculation actually made by the probation department.

       The next step is to compare the hypothetical sentence with the actual previous

sentence. As the illustrations to the application note demonstrate, this comparison will often

define a range within which the second sentence should fall. In this case, the hypothetical

sentencing range, as we have noted, apparently was calculated to be twenty-seven to thirty-


                                              -4-
three months.1 The sentencing range for the previous convictions was twenty-four to thirty

months. Comparing these ranges, the district court could have concluded that three months

was a reasonable incremental punishment. Indeed, it appears that this was the reasoning

employed by the district judge in this case. See III R. 64-65. Although the district judge did

not explain his reasoning in sufficient detail for us to follow it step by step, he did cite the

appropriate guideline, referred specifically to the Minnesota sentence and the upward

departure included therein, and noted that the departure by the previous sentencing court left

it “anything but clear” how to apply section 5G1.3(c) and application note 3. III R. at 65.

Significantly, the judge also said that he had “strong feelings about the need of punishment.”

Id. at 64.

       Defendant’s argument seems to be that a concurrent sentence was required in this case

as a matter of law because the hypothetical maximum sentence of thirty-three months was

less than the time left to be served on his previous sentence of sixty months. We disagree.

Instead, had the district judge in the instant case adopted the defendant’s suggested approach,

the result would have been to fail to impose any reasonable incremental punishment for the

instant offense. This approach would have the effect of giving the defendant “license” to

commit fraud.

       To explain how defendant’s approach would amount to license to commit fraud, we


       1
        The reader is reminded that the hypothetical sentencing range is calculated based
on the presumption or fiction that the two sentencing proceedings were combined into
one, which was under the federal guidelines.

                                              -5-
refer to our unpublished decision in United States v. Christopher, 216 F.3d 1088 (table),

2000 WL 702397 (10th Cir. 2000). The parties have not referred us to any published

decisions of our court, or of any court, applying section 5G1.3(c) in a situation like this in

which the previous sentence included an upward departure from the guidelines range. Our

unpublished opinions are not binding precedent, of course, but we find the analysis in

Christopher persuasive. See 10th Cir. R. 36.3. Moreover, the circumstances of that case are

closely analogous to those of the instant case. We therefore feel it appropriate to cite and rely

on our unpublished Christopher opinion under our Rule.

       In Christopher, the defendant had first been convicted of wire fraud in federal court

in Rhode Island. The Rhode Island federal court had sentenced the defendant there to 121

months’ imprisonment, a sentence which included a 75 month upward departure. After his

conviction for a similar scheme in the District of Colorado, the district court followed the

procedure of section 5G1.3(c) and calculated a hypothetical sentence range, one that included

the fraudulent schemes in both Rhode Island and Colorado, of 63 to 78 months. The court

determined that the sentencing range in the Rhode Island case, before the departure, was 46

to 57 months. The federal district judge in Colorado then subtracted the bottom numbers

from these two ranges and arrived at seventeen months, which the judge concluded

represented a reasonable incremental punishment. He therefore sentenced the defendant to

a total of 46 months, with seventeen months to be served consecutively.

       In reaching this conclusion, the district judge in Christopher made some pertinent


                                               -6-
observations about the impact of the prior court’s upward departure on the sentencing

calculus for subsequent convictions. As reflected in the order of our court approving the

rationale of the trial court in Christopher, the district judge reasoned that an unintended and

undesirable result would be obtained if it, as the second sentencing court, included the

upward departure by the first sentencing court in its analysis under section 5G1.3(c). If the

upward departure were considered, the sentence for the first fraud would be much greater

than the hypothetical sentence for both frauds calculated under note 3. The result would be

that the first court’s upward departure “would have the effect of shielding Mr. Christopher

from punishment for his Colorado offenses. Indeed, any court’s decision to upwardly depart

would substantially insulate a defendant from punishment on future similar offenses.” 2000

WL 702397 at *2, n.2.

       We are persuaded by the analysis of Christopher, approving the reasoning of the

district court in that case. As in that case, the district judge here clearly believed that some

consecutive time was necessary to achieve a reasonable incremental punishment for the

instant offense. We see no abuse of discretion in the instant case. We have considered Mr.

Castleberry’s argument that the sentence imposed upon him amounted to an upward

departure in violation of the government’s agreement not to seek such a departure. This

argument is unfounded; there is no upward departure here.

                                              III

       As for the restitution order, Mr. Castleberry makes the unsupported assertion in his


                                              -7-
brief (actually only in a heading in the brief) that the district court erred in calculating the

amount of loss. We will not consider this argument because counsel has failed to even

explain the assertion, much less to support it with references to the record which would

enable us to review the sentencing court’s calculations.

         Castleberry also contends that the district judge failed to take into account his limited

ability to pay restitution. We review underlying findings of fact for clear error and the

amount of the restitution for abuse of discretion. United States v. Olson, 104 F.3d 1234,

1237 (10th Cir. 1997).2 The sentencing court is not required to make specific findings

regarding the defendant’s ability to pay “so long as sufficient evidence was available to and

considered by the sentencing court.” United States v. Wiktor, 146 F.3d 815, 819 (10th Cir.

1998).       We conclude that, as in Wiktor, the presentence report contained sufficient

information, which the district judge clearly considered in reaching his decision to require

restitution and in finding, on the other hand, that the defendant did not have ability to pay a

fine in addition to restitution. See id.

         The court ordered the $126,658.26 of restitution to be paid in monthly installments

of at least $50.00. Obviously, if defendant were to pay only the minimum amount, he could

not possibly make full restitution in his lifetime. But the presentence report reviewed



        In the instant case, the probation office recommended that the court apply the
         2

Victim and Witness Protection Act, rather than the Mandatory Victims Restitution Act of
1996 because the offense was committed before April 24, 1996, and the court apparently
did so. Neither party has objected to this, and we likewise apply the earlier statutory
provisions. See United States v. Olson, 104 F.3d at 1237 & n.2.

                                                -8-
defendant’s educational level and employment history and concluded that he had the capacity

to earn a substantial amount of money in the future. In light of this, and the defendant’s

failure to show specifically why the district court should not have relied on this statement,3

we see no abuse of discretion in the order for restitution.

                                        Conclusion

       The defendant’s sentence is AFFIRMED.



                                                   Entered for the court



                                                   William J. Holloway, Jr.
                                                   Circuit Judge




       See United States v. Copus, 110 F.3d 1529, 1537 (10th Cir. 1997) (burden on
       3

defendant to show inability to pay the full restitution).

                                             -9-
