United States v. Underwood, 10th Cir. (2000)
United States v. Underwood, 10th Cir. (2000)
JUN 12 2000
PATRICK FISHER
Clerk
No. 99-3346
(D.C. No. 99-CR-40011)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT
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This order and judgment is not binding precedent, except under the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.
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
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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
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United States v.
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);
current version of 5G1.3 did not apply to defendant who had already served
prior state prison term);
(holding defendant not entitled under 5G1.3 to credit for discharged state prison
term), cert. denied , 119 S. Ct. 1374 (1999);
83 F.3d 812,
817 (7th Cir. 1996) (holding defendant could not invoke 5G1.3 because he was
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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.
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Therefore, we will not review the district courts decision not to depart from the
guidelines.
We AFFIRM.
John C. Porfilio
Circuit Judge
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