914 F. 2d 264 - United States v. Moreno

No. 90-10020.

United States Court of Appeals, Ninth Circuit.

Before FARRIS, and DAVID R. THOMPSON, Circuit Judges, and MUECKE,** Senior United States District Judge.

MEMORANDUM***

Leocadio Moreno argues that the trial court abused its discretion in sentencing him to a consecutive rather than a concurrent term of imprisonment. We understand but reject his argument. Moreno correctly cites United States Sentencing Guideline Section 5G 1.3 as controlling. He simply misunderstands its application.

The facts are not in dispute. At a co-conspirator's trial in 1989, he testified about essentially the same events and transactions for which he had been convicted. He committed perjury and pled guilty to the offense. The only question therefore is one of law: Did the perjury conviction arise out of the same transactions or occurrences as the unexpired sentences? The district court properly held that it did not. The crime for which Moreno was originally convicted was completed before the new offense arose. Perjury was not and could not have been considered at the time of the original sentencing. The initial conviction occurred in 1985. The perjury occurred at a trial four years later, in 1989. The trial court's reliance on the analogy of escape convictions was not error. They too, relate to subsequent offenses. See United States v. Ofchinick, 877 F.2d 251, 253 (3d Cir.1989); United States v. Vickers, 891 F.2d 86, 88 (5th Cir.1989). The district court had discretion to impose a concurrent or consecutive sentence. See United States v. Wills, 881 F.2d 823 (9th Cir.1989). We find no abuse.

AFFIRMED.