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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Beverly Underwood. The court affirmed the district court's denial of Underwood's request for a downward departure or credit under the sentencing guidelines for time served in state custody. The court found that Section 5G1.3 of the guidelines did not apply because Underwood had completed her state sentence prior to federal sentencing. It also determined it did not have jurisdiction to review the district court's discretionary denial of a downward departure.

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    Filed: 2000-06-12 Precedential Status: Non-Precedential Docket: 99-3346

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    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Beverly Underwood. The court affirmed the district court's denial of Underwood's request for a downward departure or credit under the sentencing guidelines for time served in state custody. The court found that Section 5G1.3 of the guidelines did not apply because Underwood had completed her state sentence prior to federal sentencing. It also determined it did not have jurisdiction to review the district court's discretionary denial of a downward departure.

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    27 views7 pages

    United States v. Underwood, 10th Cir. (2000)

    Uploaded by

    Scribd Government Docs
    This document is an order and judgment from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Beverly Underwood. The court affirmed the district court's denial of Underwood's request for a downward departure or credit under the sentencing guidelines for time served in state custody. The court found that Section 5G1.3 of the guidelines did not apply because Underwood had completed her state sentence prior to federal sentencing. It also determined it did not have jurisdiction to review the district court's discretionary denial of a downward departure.

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    of 7

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 12 2000

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    BEVERLY S. UNDERWOOD, also
    known as Beverly Smith,

    No. 99-3346
    (D.C. No. 99-CR-40011)
    (D. Kan.)

    Defendant-Appellant.
    ORDER AND JUDGMENT

    Before TACHA , PORFILIO , and ANDERSON , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The 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.

    Defendant pleaded guilty to a superceding indictment charging her with


    being an accessory after the fact to distribution of cocaine and was sentenced to
    thirty-seven months imprisonment. She appeals her sentence, arguing that the
    district court should have imposed a sentence that effectively gave her credit for
    time she served in state custody. We exercise jurisdiction pursuant to 28 U.S.C.
    1291 and 18 U.S.C. 3742, and we affirm.
    Defendant was arrested by state authorities in Topeka, Kansas, on April 8,
    1998, for possession and distribution of crack cocaine. At the time of her arrest,
    defendant was on probation following her conviction on a misdemeanor drug
    charge in Sedgwick County, Kansas. Defendant also had an outstanding arrest
    warrant for previous violations of her probation. On April 24, 1998, Sedgwick
    County issued a second arrest warrant for probation violation based on some of
    the conduct underlying defendants April 8 arrest.
    On May 5, 1998, the Sedgwick County District Court held a hearing on the
    two probation violation warrants. Defendant appeared with her counsel and
    admitted the violations at issue in the first warrant, but argued that the court did
    not have jurisdiction over the violations in the second warrant because that
    warrant was untimely filed. After some discussion, the parties and the court
    agreed that the prosecutor would proceed only on the allegations contained in the
    first warrant. Based on those allegations, which included defendants failure to
    -2-

    report to her probation officer, the state court revoked defendants probation and
    ordered defendant to serve the original sentence, which was one year.
    On February 10, 1999, a federal grand jury issued a three-count indictment
    against defendant stemming from her April 8, 1998 arrest. On March 25, 1999, a
    federal detainer was lodged with the Sedgwick County jail, where defendant was
    serving her state sentence on the probation violation. After she completed her
    state sentence, defendant was taken into federal custody on April 8. On July 12,
    1999, the federal grand jury issued a one-count superceding indictment, to which
    defendant pleaded guilty.
    Before sentencing, defendant filed a sentencing memorandum asking the
    court to give her credit for the time she spent in the Sedgwick County jail on the
    state sentence, pursuant to U.S.S.G. 5G1.3(b) or (c). Defendant contended that
    the purpose of 5G1.3 was to create a single sentence that would approximate the
    total sentence that would have been imposed had all the offensesboth state and
    federalbeen federal offenses and had sentence on all the offenses been imposed
    at the same time. She argued that her federal sentence should credit her time in
    state custody because the state court, in imposing a one-year sentence for
    probation violation, had taken into account some of the same conduct that formed
    the basis of the federal charges. Defendant also filed a separate alternative
    motion for a downward departure seeking credit for her time spent in state
    -3-

    custody. The government opposed defendants request and, after hearing


    argument on the matter at sentencing, the district court denied defendants
    request.
    Defendant now appeals, arguing that the district court abused its discretion
    in not giving her credit for her state sentence, either under the guidelines or as a
    downward departure. We review the district courts interpretation and
    application of the Sentencing Guidelines de novo.

    United States v.

    Chavez-Valenzuela , 170 F.3d 1038, 1039 (10th Cir. 1999). We review a district
    courts decision to depart from the guidelines under a unitary abuse of discretion
    standard. See Koon v. United States , 518 U.S. 81, 91 (1996). We have no
    jurisdiction, however, to review a district courts refusal to depart from the
    guidelines unless the court refused to depart because it thought it had no authority
    to do so. See United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999).
    Turning first to the district courts application of the guidelines, we
    conclude the district court properly refused to credit defendant with the time
    served in state custody under U.S.S.G. 5G1.3. This guideline is captioned
    Imposition of a Sentence on a Defendant Subject to an Undischarged Term of
    Imprisonment. In subsection (a), the guideline describes the circumstances
    under which the new sentence must be consecutive to the prior undischarged
    sentence; in subsection (b), it describes the circumstances under which the new
    -4-

    sentence must be concurrent to the prior undischarged sentence; and in subsection


    (c), it gives discretion to the district court, in circumstances not covered by either
    (a) or (b), to impose a new sentence that is either consecutive, concurrent, or
    partially concurrent with the prior undischarged sentence. U.S.S.G. 5G1.3
    (1998). In each set of circumstances, however, the predicate is that the
    defendants prior prison term remains undischarged.

    United States v.

    Labeille-Soto , 163 F.3d 93, 99 (2d Cir. 1998).


    Here, the facts are undisputed that defendant was not subject to an
    undischarged term of imprisonment at the time her federal sentence was imposed;
    she had completed service of her state sentence months before. A defendant who
    is not incarcerated on another sentence at the time he is sentenced for the instant
    offense is not subject to an undischarged term of imprisonment and cannot
    invoke 5G1.3.

    See, e.g. , United States v. Ogg , 992 F.2d 265, 266-67 (10th Cir.

    1993) (holding earlier version of 5G1.3 did not apply to defendant who had
    already served prior state prison term);

    Labeille-Soto , 163 F.3d at 99 (holding

    current version of 5G1.3 did not apply to defendant who had already served
    prior state prison term);

    United States v. Cofske , 157 F.3d 1, 1 (1st Cir. 1998)

    (holding defendant not entitled under 5G1.3 to credit for discharged state prison
    term), cert. denied , 119 S. Ct. 1374 (1999);

    Prewitt v. United States,

    83 F.3d 812,

    817 (7th Cir. 1996) (holding defendant could not invoke 5G1.3 because he was
    -5-

    not subject to undischarged term of imprisonment). Defendants attempt to


    construe 5G1.3 to apply to a prior term of imprisonment that has been
    discharged at the time the current federal sentence is imposed is without merit.
    Because 5G1.3 did not apply to defendant, the district court did not err in
    failing to give defendant credit for her state sentence under that guideline.
    We turn, then, to defendants request for a downward departure. Defendant
    presented several grounds to the district court to support her request for a
    downward departure that would effectively give her credit for her state custody.
    After hearing argument from both parties, the district court judge denied
    defendants request, stating his understanding of how a sentencenormally
    should be imposed under the circumstances presented.
    As we have repeatedly held, we lack jurisdiction to review a district courts
    discretionary decision to deny a downward departure.

    See Fortier , 180 F.3d at

    1231. [U]nless the judges language unambiguously states that the judge does
    not believe he has authority to downward depart, we will not review his decision.
    United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). Based upon our
    review of the sentencing hearing transcript, we conclude that the district court
    judges comments in denying defendants request do not constitute an
    unambiguous statement that he believed he was without authority to depart.

    -6-

    Therefore, we will not review the district courts decision not to depart from the
    guidelines.
    We AFFIRM.

    Entered for the Court

    John C. Porfilio
    Circuit Judge

    -7-

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