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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-2968
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN PETER KINGS, a/k/a,
COMFFORT, PETER ONYEMA PENN,
NETESON GOLDEN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
( January 14, 1993 )
Before KING, JOHNSON, and DUHÉ, Circuit Judges.
PER CURIAM:
From 1987 through 1990, Melvin Peter Kings was engaged in
fraudulent schemes to obtain credit. After violently resisting
an attempted arrest in Houston, Texas by State Department
security agents in July 1990, Kings was arrested in Cobb County,
Georgia in November 1990. Charged in a ten-count indictment with
assaulting a federal officer and various crimes involving use of
false social security numbers and fraudulently obtained credit
cards, Kings pled guilty to one count of false use of a social
security number, one count of fraudulent use of a credit card,
and one count of assault on a government officer. The district
court sentenced Kings to: 120 months of imprisonment on the

credit card count; a consecutive term of 30 months on the assault
count; a consecutive 60-month term on the pre-Guidelines social
security offense; a 36-month term of supervised release on the
credit card count; and a concurrent 12-month term of supervised
release on the assault count. Additionally, the court imposed a
fine of $12,500 and ordered total restitution in the amount of
$21,439.65. Kings appeals from his sentence, and, finding no
error, we affirm.
I. Discussion
Kings raises the following issues on appeal:
A.
Whether the district court erred in making an
"official victim" enhancement to Kings'
sentence;
B.
Whether the district court erred by (i)
considering Kings' pre-Guidelines offense as
relevant conduct under the Guidelines, and
(ii) then imposing a consecutive sentence for
that same pre-Guidelines offense:
C.
Whether the district court erred in using
Kings' social security (pre-Guidelines)
offense to increase his criminal history
category under the Guidelines;
D.
Whether the district court erred in assessing
consecutive sentences on the credit card and
assault (Guidelines) counts; and
E.
Whether the district court's application of
the Guidelines violates due process, the
Eighth Amendment, the Separation of Powers
Clause, and the non-delegation doctrine.
In considering these challenges to Kings' sentence, "[b]eyond
even the clearly erroneous standard, this court must give due
deference to the sentencing court's application of the
[G]uidelines to the facts." United States v. Harris, 932 F.2d
2

1529, 1536 (5th Cir. 1991) (internal quotation omitted), cert.
denied, __ U.S. __, 112 S. Ct. 270 (1991); United States v.
Parks, 924 F.2d 68, 71 (5th Cir. 1991) (citations omitted); see
also 18 U.S.C.A. § 3742(e) (West Supp. 1993).1 Moreover, we
recognize that Kings' sentence "must be upheld unless [he]
demonstrates that it was imposed in violation of the law, was
imposed because of an incorrect application of the Guidelines, or
is outside the range of applicable Guidelines and is
unreasonable." Parks, 924 F.2d at 71, citing United States v.
Goodman, 914 F.2d 696, 697 (5th Cir. 1990) (other citations
omitted), recognizing supersession, United States v. Fitzhugh,
954 F.2d 253, 254-55 (5th Cir. 1992); see also 18 U.S.C. §
3742(f) (establishing standard of review for sentencing); Harris,
932 F.2d at 1536 (sentences not imposed in violation of the law,
not resulting from an incorrect application of the Guidelines,
and not outside the applicable Guidelines range must be upheld).
A. "Official Victim" Enhancement
Pursuant to Guidelines section 3A1.2 (enhancement where the
victim is an officer),2 the district court increased Kings' base
1 Section 3742(e) provides that "[t]he court of appeals
. . . shall give due deference to the district court's
application of the guidelines to the facts." Id.
2 Section 3A1.2 provides that, if:
(a)
the victim was a law enforcement or
corrections officer; a former law enforcement
or corrections officer; an officer or
employee included in 18 U.S.C. § 1114; a
former officer or employee included in 18
U.S.C. § 1114; or a member of the immediate
family of any of the above, and the offense
of conviction was motivated by such status;
3

offense level by three for assaulting a federal officer carrying
out her official duties. Kings contends that this increase
constitutes an impermissible double counting in violation of the
Due Process clause of the Fifth Amendment to the United States
Constitution because Kings was convicted of assaulting a federal
officer in violation of 18 U.S.C. § 111 (the relevant Guidelines
sections for this offense are 2A2.2 and 2A2.4), and an element of
that offense is the federal officer status of the victim.3
We have recently addressed this issue. See United States v.
Kleinebreil, 966 F.2d 945, 955 (5th Cir. 1992). In Kleinebreil,
we recognized that, although Guidelines section 2A2.4
("Obstructing or Impeding Officers") incorporates the official
status of the victim, section 2A2.4 also contains a cross-
or
(b)
during the course of the offense or immediate
flight therefrom, the defendant or a person
for whose conduct the defendant is otherwise
accountable, knowing or having reasonable
cause to believe that a person was a law
enforcement or corrections officer, assaulted
such officer in a manner creating a
substantial risk of serious bodily injury,
increase by 3 levels.
U.S.S.G. § 3A1.2.
3 Section 11 provides in pertinent part that whoever:
(1) forcibly assaults, resists, opposes,
impedes, intimidates, or interferes with any
person designated in section 1114 of this
title while engaged in or on account of the
performance of official duties; or
(2) forcibly assaults or intimidates any
person who formerly served as a person
designated in section 1114 on account of the
performance of official duties during such
person's term of service,
shall be fined under this title or imprisoned not more than
three years, or both. 18 U.S.C. § 111.
4

reference to section 2A2.2 (simply "Aggravated Assault") for
situations in which the defendant is convicted under 18 U.S.C. §
111. Specifically, section 2A2.4 provides that, "[i]f the
defendant is convicted under 18 U.S.C. § 111 and the conduct
constituted aggravated assault, apply § 2A2.2 (Aggravated
Assault)." U.S.S.G. § 2A2.4(c)(1). Moreover, the Application
Notes accompanying section 2A2.4 state that the official victim
assessment under Guidelines section 3A.1.2 should only be applied
when this cross-reference in section 2A2.4 ("Obstructing or
Impeding Officers") requires that the offense level be determined
under section 2A2.2 ("Aggravated Assault"). See U.S.S.G. §
2A2.4, comment. (n.1). Therefore, we held that:
Kleinebreil was convicted under 18 U.S.C. § 111,
and his conduct constituted aggravated assault.
Accordingly, pursuant to the cross-reference in §2A2.4,
§2A2.2 ("Aggravated Assault") applies. Unlike the base
offense level for §2A2.4, the base offense level for
2A2.2 does not reflect the fact that the victim was a
government official. See U.S.S.G. 3A1.2, comment.
(n.3) (the only offense guideline in Chapter Two, Part
A, that specifically incorporates the official status
of the victim is §2A2.4 ("Obstructing or Impeding
Officers")). Therefore, the district court properly
increased the assault group offense level for an
official victim.
Kleinebreil, 966 F.2d at 955 (emphasis in original); see also
United States v. Padilla, 961 F.2d 322, 327 (2d Cir.) (also
noting that Guidelines section 3A1.2(b), unlike 18 U.S.C. § 111,
requires that the defendant know that he is assaulting an
official victim), cert. denied, __ U.S. __, 113 S. Ct. 138
(1992); United States v. Sanchez, 914 F.2d 1355, 1362 (9th Cir.),
cert. denied, __ U.S. __, 111 S. Ct. 1626 (1990). Similarly, we
5

now conclude that the district court properly increased Kings'
group offense level for assaulting a government official.
B. Double Counting Contention
Kings also raises a double-counting contention regarding the
district court's consideration of his pre-Guidelines social
security offense4 as relevant conduct under Guidelines section
1B1.3. Specifically, Kings asserts that the district court (i)
considered this offense as "relevant conduct" for purposes of
sentencing him for his credit card offense, and (ii) then ordered
him to serve a consecutive sentence for the same pre-Guidelines
offense, and that this constitutes an impermissible double-
counting for a single offense. According to Kings, the district
court only had two legitimate options for utilizing his pre-
Guidelines offense--(i) the district court could have used his
social security offense to increase his criminal history category
under the Guidelines for his credit card Guidelines offense, and
then ordered that Kings serve a concurrent sentence for this pre-
Guidelines offense; or (ii) the court could have considered the
pre-Guidelines and Guidelines offenses to be unrelated and
ordered consecutive sentences for them. We disagree.
We addressed this very issue in United States v. Parks, 924
F.2d 68, 71-74 (5th Cir. 1991). In that case, the district court
considered pre-Guidelines conduct in calculating a sentence for
Guidelines convictions, and then ordered consecutive sentences
4 According to Kings' presentence report, this offense
involved Kings use of another person's name and social security
number to obtain a credit card.
6

for the pre-Guidelines and Guidelines convictions. In
considering challenges which closely echo those now articulated
by Kings, we held that:
Although district courts often do order concurrent
sentences for defendants in Parks' situation, we
conclude that the Guidelines do not require that result
and that the district court here did not err in
applying the Guidelines to Parks. We recognize that
due deference is afforded to the district court's
application of the Sentencing Guidelines. We hold that
it is within the district court's discretion to order
consecutive sentences for pre-Guideline and Guideline
convictions even if it uses pre-Guideline conduct in
arriving at the Guideline offense level.
Parks, 924 F.2d at 71; see also United States v. Gaudet, 966 F.2d
959, 963 (5th Cir. 1992) (relying upon Parks, and holding that
district court's have discretion to impose consecutive sentences
for Pre-Guidelines and Guidelines offenses even if pre-Guidelines
conduct is used to arrive at a Guidelines offense level); United
States v. Ewings, 936 F.2d 903, 910 (7th Cir. 1991);5 United
5 In Ewings, the Seventh Circuit held that:
[E]ven though the guidelines generally eschew
consecutive sentences except where necessary to
implement the applicable guideline range, "nothing in
the guidelines or the Sentencing Reform Act precludes
the court from ordering that a sentence imposed on a
preguidelines count be served consecutively to a
sentence imposed on a guidelines count." United States
v. Watford, 894 F.2d 665, 669 (4th Cir. 1990). Making
the sentence on the pre-guidelines counts concurrent
with the sentence on the guidelines count would have
been more consistent with the approach of the
guidelines, but neither [18 U.S.C.] § 3553 nor the
guidelines obligated the court to apply the guidelines
to nonguidelines counts. We therefore conclude, along
with every other circuit to address this question, that
the district court had the discretion to make the
defendant's guidelines and pre-guidelines counts
consecutive.
936 F.2d at 902 (internal citation omitted).
7

States v. Watford, 894 F.2d 665, 667-68 (4th Cir. 1990) (written
by the Chairman of the United States Sentencing Commission, Judge
Wilkins). The principles guiding our Parks decision--principles
that also guide us in the case at issue--are that (i) pre-
Guideline conduct may be considered in arriving at a Guidelines
offense level,6 (ii) district court's generally have broad
discretion--especially for pre-Guidelines offenses--in deciding
whether sentences should run concurrently or consecutively, so
long as the overall sentence remains within statutory limits,7
6 Guidelines section 3D1.2 provides that "[a]ll counts
involving substantially the same harm shall be grouped together
into a single Group[,]" and section 1B1.3(a)(2) provides that,
under section 3D1.2(d), "all such acts and omissions that were
part of the same course or conduct or common scheme or plan as
the offense of conviction" should be considered relevant conduct
for determining the appropriate Guidelines range. Applying these
sections, the Fourth Circuit has held that:
Since Relevant Conduct is a real offense concept, it
encompasses criminal activity in the entirety of a
common scheme regardless of whether the conduct
occurred before or after November 1, 1987, the
effective date of the Guidelines. However, only counts
of conviction that occur, in whole or in part, after
that date are subject to a guidelines sentence.
Watford, 894 F.2d at 668 n.2 (emphasis added).
7 See United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct.
589, 591 (1972) (judges have almost complete discretion in
fashioning a pre-Guidelines sentence); United States v. Helms,
897 F.2d 1293, 1299 (5th Cir.), cert. denied, __ U.S. __, 111 S.
Ct. 257 (1990) (upholding consecutive sentences on pre-Guideline
counts and emphasizing that "[t]he district court has broad
discretion in sentencing determinations"); Watford, 894 F.2d at
667 (4th Cir. 1990) ("[P]rior to the effective date of the
guidelines, judges, subject to few limitations not applicable
here, were given unbridled discretion in fashioning a
sentence."); see also 18 U.S.C. § 3584 (district courts generally
have discretion to determine whether Guidelines sentences should
run concurrently or consecutively).
A number of circuits addressing this issue have found that
district courts' broad discretion to sentence for pre-Guidelines
offenses is controlling. For example, in United States v.
8

and (iii) sentences for pre-Guidelines offenses may run
consecutively to sentences for offenses which fall under the
Guidelines.8 See Parks, 924 F.2d at 72 (discussing the
jurisprudence establishing each of these principles). Although
we recognized in Parks that an advisory by the United States
Sentencing Commission9 "suggests that defendants in Parks' [and
Litchfield, the Eleventh Circuit recently held that:
We join the other circuits that have faced this issue
and hold that sentencing courts may impose consecutive
sentences if a defendant is convicted of both a pre-
sentencing guidelines offense and a post-sentencing
guidelines offense, even if the guidelines, had they
applied to both offenses, would have required
concurrent sentences. The district court has
"unfettered discretion to impose sentences on pre-
guidelines counts consecutively or concurrently. And
nothing in the guidelines or the Sentencing Reform Act
precludes the court from ordering that a sentence
imposed on a pre-guidelines count be served
consecutively to a sentence imposed on a guidelines
count."
959 F.2d 1514, 1524 (10th Cir. 1992) (internal citations
omitted), quoting Watford, 894 F.2d at 669. Similarly, the Third
Circuit recently held that a defendant's "assertion that his one
Guideline count of tax evasion has some limiting effect on the
district court's discretion to impose consecutive sentences for
his pre-Guideline counts fails." United States v. Pollen, No.
91-5703, 1992 WL 277338, at *12 (3d Cir. Oct. 13, 1992); see also
Ewings, 936 F.2d at 910 ("Given the wide scope of the court's
discretion to sentence the defendant on the pre-guidelines
counts, it is immaterial whether the court made the defendant's
sentences on those counts consecutive to his sentence on the two
guidelines counts.").
8 See United States v. Garcia, 903 F.2d 1022, 1025 (5th
Cir.) ("We agree with Judge Wilkins' opinion in Watford[, 894
F.2d at 667,] that sentencing courts have the discretionary power
to impose consecutive sentences contrary to the mandate of the
Sentencing Guidelines where a defendant is convicted for both
Guidelines and pre-Guidelines offenses."), cert. denied, __ U.S.
__, 111 S. Ct. 364 (1990); see also supra note 7.
9 This advisory provides that:
Relevant conduct for offenses subject to the guidelines
is to be determined without regard to the November 1
9

Kings'] situation should usually receive concurrent sentences[,]"
924 F.2d at 73, we also recognized that "[t]he advisory sets out
no absolute rule[,]" and that "[t]he district court's decision to
impose consecutive sentences is entitled to due deference." Id.
at 73-74.10
In short, the district court "had the broadest of discretion
in determining whether the sentences were to be concurrent or
consecutive[,] and it had the right to invoke the thoroughly
established principle that related criminal conduct can be taken
into account in sentencing." Id. at 74. Therefore, we conclude
that the district court's (i) consideration of Kings' pre-
Guidelines social security offense in determining an offense
implementation date. If the relevant conduct for an
offense committed on or after November 1, 1987,
overlaps with conduct sanctioned as part of a pre-
November 1 count, there would be a potential for double
counting unless the pre-guideline counts were sentenced
concurrently. The court will have to carefully fashion
the sentence with these concerns in mind.
United States Sentencing Commission, Questions Most Frequently
Asked About the Sentencing Guidelines 3-4 (5th ed. March 1992)
(emphasis added) (provided in response to question 13: "If an
indictment includes separate counts under pre-guideline law and
post-guideline law, how should the defendant be sentenced?").
10 Beyond its actual language, our interpretation of the
advisory is supported by the disclaimer on the cover of the
Sentencing Commission publication containing it. This disclaimer
provides that:
Information provided by the Commission's Training Staff
is offered to assist in understanding and applying the
sentencing guidelines. The information does not
necessarily represent the official position of the
Commission, should not be considered definitive, and is
not binding upon the Commission, the court, or the
parties in any case.
Sentencing Commission, Questions Most Frequently Asked, supra at
note 9.
10

level for his credit card offense under the Guidelines and (ii)
imposition of a consecutive sentence for that pre-Guidelines
offense does not constitute an impermissible double counting.11
C. Kings' Criminal History Category
Kings has added a third tier to his multiple-counting
contention. Specifically, Kings asserts that the district
court's use of his pre-Guidelines social security offense to
increase his criminal history category under the Guidelines--
piled on top of its (i) consideration of the same social security
offense as "relevant conduct" for purposes of calculating an
appropriate offense level for his credit card offense, and (ii)
11 Because we find that Parks decisively controls this
issue, and it is an issue tangled to other contentions raised by
Kings and addressed later in this opinion, we have considered the
merits of Kings' double-counting contention. Nevertheless, we
note that the district court's consideration of Kings' social
security offense as conduct relevant to his credit card offense
did not have any ultimate bearing on Kings' adjusted offense
level under the Guidelines. Specifically, the Guidelines section
which guides courts in calculating the combined offense level in
a multiple-count case requires district courts to "[d]isregard
any [offense] that is 9 or more levels less serious than the
[offense] with the highest offense level." U.S.S.G. § 3D1.4
(emphasis added). The base offense level for Kings' assault
count--an offense totally unrelated to and unaffected by Kings'
social security offense--is 26, while the base offense level for
his credit card count is either 12 or 15, depending upon whether
the adjustment for relevant conduct which Kings has challenged is
included. Because the assault and credit card offenses are
separated by a minimum of 11 (the difference between 26 and 15)
levels, Kings' combined offense level under the Guidelines is
wholly determined by his assault count. Accordingly, at least
for the limited purpose of determining Kings' offense level under
the Guidelines, any error resulting from consideration of Kings'
social security offense as conduct relevant to his credit card
offense would be harmless. See Williams v. United States, __
U.S. __, 112 S. Ct. 1112, 1120-21 (1992) (remand for resentencing
is required "only if the sentence was `imposed as a result of an
incorrect application of the Guidelines").
11

imposition of a consecutive sentence for this offense--
constitutes a triple sanction for a single offense. We disagree.
We have already determined that the district court's (i)
consideration of Kings' pre-Guidelines social security offense as
relevant conduct under the Guidelines and (ii) imposition of a
consecutive sentence for that offense does not constitute an
impermissible double counting. See supra Part I.B. However, we
still must determine whether the district court's (i)
consideration of Kings' social security offense as relevant
conduct under the Guidelines and (ii) use of that conduct to
enhance Kings' criminal history category constitutes an
impermissible double counting.
The Second Circuit has recently addressed this very issue,
holding that:
[I]t may be appropriate to count a single factor both
in assessing the defendant's criminal history category
and in calculating the applicable offense level since
the two measure different things. The offense level
represents a judgment as to the wrongfulness of the
particular act. See 28 U.S.C. § 994(c). The criminal
history category principally estimates the likelihood
of recidivism. See U.S.S.G. Chapter 4, Introductory
Commentary ("The specific factors included in § 4A1.1
and § 4A1.3 are consistent with the extant empirical
research assessing correlates of recidivism and
patterns of criminal behavior.").
United States v. Campbell, 967 F.2d 20, 24 (5th Cir. 1992).12
12 The Eleventh Circuit has also dealt with this issue,
holding that:
Double counting a factor during sentencing is
permissible if the Sentencing Commission intended the
result, and if the result is permissible because "each
section concerns conceptually separate notions relating
to sentencing." . . . The criminal history section is
designed to punish likely recidivists more severely,
12

Accordingly, so long as Kings' social security offense "is
relevant to determining both [Kings'] criminal history category
and the offense level for the charged conduct[,]" the district
court did not err. Campbell, 967 F.2d at 25. "While this may be
double counting in a literal sense, double counting is legitimate
where a single act is relevant to two dimensions of the Guideline
analysis." Id.
We find that "double counting" was legitimate in the case
before us. First, we find that Kings' social security fraud
conviction was relevant for determining the offense level for his
credit card fraud conviction. In short, the 1987 social security
offense for which Kings has been convicted constitutes one
fraudulent act on a continuum of similar efforts by Kings to
disguise his identity and obtain credit. Given the explicit
language of Guidelines sections 1B1.3(a)(2) and 3D1.2 (see supra
note 6), we find that the district court did not err in
determining that Kings' conviction for using another person's
social security number "for the purpose of obtaining credit,
money, goods, and services" in 1987 is relevant for measuring the
wrongfulness of that same behavior from May 1989 through May of
1990.
Second, Kings' social security fraud conviction was relevant
for determining his criminal history category. Under Guidelines
while the enhancement under § 2L1.2 is designed to
deter aliens who have been convicted of a felony from
re-entering the United States.
United States v. Strachan, 968 F.2d 1161, 1161 (11th Cir. 1992)
(internal citations omitted).
13

section 4A1.1(e), if an offense is committed while the defendant
is on parole and less than two years after release from prison,
three points should be added to the defendant's criminal history
category. Kings was released on parole from the Texas Department
of Corrections on April 22, 1986, and his parole terminated on
October 22, 1988. He committed his social security offense on
August 3, 1987--a period during which he was on parole and less
than two years after his release from prison. Because the
commentary accompanying Guidelines sections 4A1.1(d) and 4A1.1(e)
specifies that enhancement is appropriate "if the defendant
committed any part of the instant offense (i.e., any relevant
conduct)"13 while on parole or within two years of release from
prison, and the district court determined that Kings' credit card
fraud offense was actually a continuation of his social security
fraud offense, the district court found that a three-point
enhancement to Kings' criminal history category was
appropriate.14 See United States v. Harris, 932 F.2d 1529, 1538-
39 (5th Cir.), cert. denied, __ U.S. __, 112 S. Ct. 70 (1991)
(under Guidelines sections 4A1.1(d), (e), relevant but
unadjudicated pre-Guidelines conduct may be used to increase a
13 Emphasis has been added.
14 This enhancement raised Kings' criminal history score
from 10 to 13, resulting in his being sentenced under Category VI
rather than under Category V and, therefore, at a higher
sentencing range. Specifically, Kings' combined offense level
for his two Guidelines offenses is 26, and Category V permits a
sentence of 110-137 months for such an offense level while
Category VI permits a sentence of 120-150 months.
14

defendant's criminal history score with respect to an adjudicated
Guidelines offense).
In sum, we find that the district court did not err in
making its two separate upward departures based upon Kings'
social security offense. Moreover, because the social security
offense is a pre-Guidelines offense, we have found that the
district court did not err by imposing a consecutive sentence for
it. See supra Part I.B. Accordingly, we reject Kings' multiple-
counting contention.
D. Consecutive Guidelines Sentences
Because Kings was convicted of multiple Guidelines counts
under a single indictment, the district court was required to
determine the appropriate Guidelines sentencing range for Kings'
convictions. This is referred to as "total punishment." See
U.S.S.G. § 5G1.2, comment. A defendant's total punishment range
under the Guidelines is determined from the Guidelines'
Sentencing Table by correlating the appropriate criminal history
category (discussed supra at Part I.C) with the defendant's
combined offense level (discussed supra at note 11). Because
Kings' criminal history category is VI and his combined offense
level is 26, the recommended total punishment range for both of
his Guidelines offenses is 120-150 months.
However, before relying upon total punishment under the
Guidelines, sentencing courts must determine the defendant's
maximum statutory sentence. When the maximum statutory sentence
is less than the total punishment minimum under the Guidelines,
15

the statutory maximum sentence becomes the Guidelines sentence.
See U.S.S.G. § 5G1.1(a). In the case before us, the maximum
statutory sentence for Kings' Guidelines offenses is 156
months,15 which means that the 120-150 total punishment range
under the Guidelines is not excessive.
Moreover, to determine whether sentences for Guidelines
offenses should run concurrently or consecutively, district
courts must determine the statutory maximum sentence for the
defendant's most serious offense. Specifically, section 5G1.2
provides that:
(c) If the sentence imposed on the count carrying the
highest statutory maximum is adequate to achieve the
total punishment, then the sentences on all counts
shall run concurrently, except to the extent otherwise
required by law.
(d) If the sentence imposed on the count carrying the
highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of
the other counts shall run consecutively, but only to
the extent necessary to produce the combined sentence
equal to the total punishment. In all other respects
sentences on all counts shall run concurrently, except
to the extent otherwise required by law.
The statutory maximum sentence for Kings' most serious
offense--credit card fraud--is 120 months, which happens to be
the minimum recommended total punishment for his Guidelines
offenses. See 15 U.S.C. § 1644 (discussed supra at note 15). To
15 The maximum sentence for fraudulent use of credit cards
is 120 months. See 15 U.S.C. § 1644 (the statutory punishment
for credit card fraud is a fine of not more than $10,000, or
imprisonment for not more than 120 months, or both ). The
maximum sentence for assaulting a federal officer while resisting
arrest is 36 months. See 18 U.S.C. § 111 (providing that
punishment for assaulting an officer is a fine, or imprisonment
for not more than three years, or both).
16

raise Kings' sentence to the Guidelines maximum total punishment
of 150 months, the district court sentenced Kings to consecutive
terms of (i) 120 months for his credit card fraud conviction and
(ii) 30 months for his conviction for assaulting a government
officer. According to Kings, this 30-month consecutive sentence
is impermissible because the 120-month sentence for credit card
conviction brought his sentence into the Guidelines recommended
total punishment range of 120-150 months, and section 5G1.2(c)
explicitly provides that, "[i]f the sentence imposed on the count
carrying the highest statutory maximum is adequate to achieve the
total punishment, then the sentences on all counts shall run
concurrently, except to the extent otherwise required by law."
It is indisputable that the district court did not impose a
sentence for Kings' Guidelines offenses which exceeds either his
total punishment range of 120-150 months or the statutory maximum
sentence for these offenses, which is 156 months. See supra note
15. All that is at issue is whether, under section 5G1.2(c), the
district court was bound to sentence Kings to the Guidelines
minimum total punishment because the statutory maximum sentence
for his credit card conviction reaches the Guidelines total
punishment threshold. We find that it was not.
The district court expressly stated its reasons for imposing
consecutive sentences for Kings' Guidelines offenses:
I've chosen a term at the highest end of the
guideline range because I do not believe that the
calculated offense level adequately sanctions the
seriousness of the Defendant's real conduct due to the
grouping rules in determining the combined offense
level for multiple counts of conviction.
17

The counts involving fraud were not sanctioned by
way of an increase in the established offense level;
and the commentary to the Sentencing Guideline Section
3D1.4 states,
If there are several groups and the most
serious offense is considerably more serious
than all of the others, there will be no
increase in the offense level resulting from
the additional counts. Ordinarily, the court
will have latitude to impose added punishment
by sentencing toward the upper end of the
range authorized for the most serious
offense.
I have chosen consecutive terms for the same reason and
also because I believe this case is one in which both
more than minimal planning and a scheme to defraud more
than one victim are present.
This case presents something of an anomaly because, as
recognized by the district court, the offense which controls the
final phase of Kings' sentencing under section 5G1.2(c) did not
even factor into his offense level. Specifically, although
Kings' credit card count carries a statutory maximum sentence
that is 84 months higher than the statutory maximum sentence for
his assault count, the offense level for Kings' assault count is
more than nine levels higher than the offense level for his
credit card count. Accordingly, in determining Kings' combined
offense level, his credit card offense was disregarded. See
supra note 11. Ironically, strictly applying Guidelines section
5G1.2(c), Kings' credit card count would control the final phase
of his sentencing, and his assault count--which appears to
constitute the more serious offense under the Guidelines since it
carries a much higher offense level--would have no effect,
thereby leaving Kings' merely at the threshold of his total
punishment sentencing range.
18

Beyond the commentary quoted by the district court,
Guidelines section 3D1.4(c) provides that, although offenses such
as Kings' credit card offense may be disregarded in determining a
combined offense level, they "may provide a reason for sentencing
at the higher end of the sentencing range for the applicable
offense level." We conclude that Kings' credit card offense did
provide such a reason, and, therefore, we affirm the district
court's imposition of consecutive sentences to--while not
exceeding the maximum statutory sentence of 156 months--reach the
high end of Kings' total punishment sentencing range under the
Guidelines.
E. Constitutional Challenges
Kings' final contention, which is packaged within a
conglomeration of constitutional claims, is essentially that the
Guidelines are unconstitutional because they have prescribed a
sentence which exceeds the three-year16 maximum statutory
sentence for his assault conviction. Specifically, according to
Kings, the "true count of sentence" was his assault count because
his two Guidelines counts were grouped pursuant to Guidelines
section 3D1.1, and the assault count--with its offense level of
26--determined his combined offense level pursuant to Guidelines
section 3D1.4(c). See supra note 11. Kings asserts that,
because his assault count wholly determined his offense level,
any punishment imposed beyond the assault count's statutory
16 Kings mistakenly asserts that the maximum statutory
sentence for his assault conviction is five years. See 18 U.S.C.
§ 111.
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maximum punishment of thirty-six months constitutes punishment
"far exceed[ing] the maximum penalty authorized by law."
As correctly stated by the government, Kings ignores the
fact that, although his assault conviction may have determined
his criminal offense level, he was convicted of multiple crimes.
In addressing Kings' other contentions, we have determined that
the district court did not err in calculating his cumulative
sentence under the Guidelines. Because Kings' total Guidelines
sentence of 150 months does not exceed his combined statutory
maximum sentence of 156 months, we conclude that Kings' has
failed to establish a claim of constitutional magnitude. See
Mistretta v. United States, __ U.S. __, 109 S. Ct. 647, 654-61
(1989).
II. Conclusion
For the foregoing reasons, we AFFIRM Kings' sentence.
20