1

The Honorable William R. Wilson, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2058

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Christopher Martin Cole, *

*

Appellant. *

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Submitted: January 11, 2005

Filed: January 27, 2005

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Before WOLLMAN, FAGG, and BYE, Circuit Judges.

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BYE, Circuit Judge.

After this court reversed an upward departure Christopher Martin Cole received

on a sentence of twenty-four months imprisonment for transmitting a threat in

interstate commerce, United States v. Cole, 357 F.3d 780, 785 (8th Cir. 2004), the

district court1

 resentenced Cole to twelve months imprisonment. Cole now appeals

a second time asserting his federal sentence should have run concurrent to a related

state sentence. We disagree and affirm the district court.
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I

On October 16, 2001, Cole called a 911 operator in Paragould, Arkansas, and

made a false threat about anthrax being in a school building. Around the same time,

Cole made a number of other false threats by telephone, including a bomb threat to

a school. The anthrax threat resulted in this federal charge, and the other threats led

to state charges.

Cole was arrested on a federal warrant related to the anthrax threat on

November 2, 2001. He remained in federal custody for several months while a mental

evaluation was performed. On March 8, 2002, Cole was released from federal

custody on a recognizance bond. On September 10, 2002, the state of Arkansas

arrested Cole on a warrant arising from the state charges.

Cole pleaded guilty to the federal charge and was originally sentenced on

December 19, 2002. At that time, the state charges against Cole had not been

resolved, but Cole was in state pretrial custody. While the first appeal in this case

was pending, Cole pleaded guilty to the state charges, received and then completed

his state sentence. On March 19, 2004, Cole returned to federal custody. A detention

hearing was held soon after to determine whether Cole should be detained while

awaiting the resentencing we ordered in Cole's first appeal. On March 22, 2004, Cole

was again released on his own recognizance.

The district court held a resentencing hearing on April 19, 2004. Cole

requested a sentence of "time served," that is, to be given credit towards the federal

sentence for the time he had spent in state custody. The government opposed Cole's

request and asked the district court to impose a federal sentence that would run

consecutive to any state time Cole had served. The district court denied both

requests, and simply sentenced Cole to twelve months imprisonment.
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Cole filed a timely appeal raising two points. First, he contends his federal

sentence began running at the time he was originally sentenced on December 19,

2002, and thus ran concurrent to the state sentence he later received. In the

alternative, Cole argues his twelve-month sentence does not comport with United

States Sentencing Guideline (U.S.S.G.) § 5G1.3(c)'s goal of achieving a "reasonable

incremental punishment" for the offense, given the amount of time he already served

in state custody on the charges of making a false bomb threat.

II

We review de novo the question whether Cole's federal sentence began running

at the time he was originally sentenced, but while in state custody. See United States

v. McCrary, 220 F.3d 868, 869 (8th Cir. 2000) (reviewing de novo a question related

to state versus federal custody of a criminal defendant). We also review de novo the

district court's application of U.S.S.G. § 5G1.3. United States v. Dixon, 360 F.3d

845, 846 (8th Cir. 2004).

Cole first contends his federal sentence began running on December 19, 2002.

We disagree. Cole was not in federal custody at that time – he was in state custody.

Cole was only transferred temporarily to the federal authorities for the purpose of

being sentenced. If, while under the primary jurisdiction of one sovereign, a

defendant is transferred to the other jurisdiction to face a charge, primary jurisdiction

is not lost but rather the defendant is considered to be "on loan" to the other

sovereign. See, e.g., United States v. Smith, 812 F. Supp. 368, 371 (E.D.N.Y. 1993).

This comports with the principles that ordinarily apply when two separate sovereigns

exercise jurisdiction over the same person during the same time period.

As between the state and federal sovereigns, primary jurisdiction over a person

is generally determined by which one first obtains custody of, or arrests, the person.

Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir. 1991); see also United States v.
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Vann, 207 F. Supp. 108, 111 (E.D.N.Y. 1962) ("The controlling factor in determining

the power to proceed as between two contesting sovereigns is the actual physical

custody of the accused."). Primary jurisdiction continues until the first sovereign

relinquishes its priority in some way. Generally, a sovereign can only relinquish

primary jurisdiction in one of four ways: 1) release on bail, 2) dismissal of charges,

3) parole, or 4) expiration of sentence. Smith, 812 F. Supp. at 370 n.2.

 

In this case, the United States obtained primary jurisdiction over Cole on

November 2, 2001, when he was arrested on a federal warrant related to the anthrax

threat. He remained in federal custody until March 8, 2002, while a mental

evaluation was performed. On March 8, 2002, he was released from federal custody

on a recognizance bond. Thus, at that time, the federal government relinquished its

primary jurisdiction over Cole.

On September 10, 2002, the state of Arkansas obtained jurisdiction over Cole

by arresting him on charges related to the telephonic bomb threat and other hoax 911

calls. Arkansas did not thereafter lose its jurisdiction by "loaning" Cole to federal

authorities to be sentenced on December 19, 2002. After the first sentencing, the

federal authorities returned Cole to the state of Arkansas where he continued to be

held in pretrial detention on the pending state charges.

"A sentence to a term of [federal] imprisonment commences on the date the

defendant is received in custody awaiting transportation to, or arrives voluntarily to

commence service of sentence at, the official detention facility at which the sentence

is to be served." 18 U.S.C. § 3585(a). Because Cole returned to state custody after

receiving his original federal sentence on December 19, 2002, instead of being
2

We note, however, Cole should receive credit against his federal sentence for

the time spent in federal custody between November 2, 2001, and March 8, 2002. He

should also get credit for the short time spent in federal custody after being released

from state custody and prior to being released on his own recognizance on March 22,

2004. 

3

In the first appeal, it was unclear whether Cole's state custody was attributable

to an actual state conviction or merely pretrial detention. Thus, there was some

concern about whether the length of Cole's custody on all charges exceeded the length

of any federal sentence that could be imposed upon resentencing should concurrent

sentencing be appropriate. See Cole, 357 F.3d at 786 (Bye, J., dissenting in part and

concurring in part). At this time, it is clear Cole was only in state pretrial custody

when he was first sentenced on the federal charge. Further, concurrent sentencing

was not an option at the time of resentencing because by then Cole had already

completed his state sentence.

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committed to the custody of the Bureau of Prisons to commence service of the

sentence, he did not begin to serve his federal sentence at that time.2

Next, Cole contends the district court misapplied U.S.S.G. § 5G1.3(c) by

failing to achieve a "reasonable incremental punishment" for Cole's total offense

conduct. We disagree, because § 5G1.3(c) was not available for the district court's

application. Section 5G1.3(c) permits the district court to order concurrent sentences

when there is a "prior undischarged term of imprisonment" not covered by

subsections (a) or (b). At the time of his original sentence on December 19, 2002,

Cole was not subject to a "prior undischarged term of imprisonment" because he had

not yet been sentenced in state court. At the time of his resentencing on April 19,

2004, Cole was not subject to a "prior undischarged term of imprisonment" because

by then he had already discharged his state sentence. Thus, the district court did not

err by failing to apply § 5G1.3(c) to Cole's situation.3
4

Cole has not raised any claims in this appeal to implicate the Supreme Court's

recent decision in United States v. Booker, __ U.S. __, 2005 WL 50108 (2005). 

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III

For the reasons stated, we affirm the twelve-month sentence ordered by the

district court.4

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