In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3527

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LERVON L. CAMPBELL,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 09-CR-78—Lynn Adelman, Judge.

ARGUED APRIL 27, 2010—DECIDED AUGUST 17, 2010

Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge. Lervon Campbell pled guilty

to being a felon in possession of a firearm and received

a fifteen-year mandatory minimum sentence. At the time

he was sentenced, Campbell had served approximately

nine months of an unrelated state sentence after his

supervised release had been revoked due to his arrest

on the federal charges. The district court imposed Campbell’s federal sentence to run concurrently with the re-
2 No. 09-3527

mainder of that state sentence, but did not credit the

nine months he had already served, believing that

U.S.S.G. § 5G1.3(c) did not give it the authority to do

so. Campbell appeals, arguing that the district court

erred in concluding that it lacked the authority to

impose his federal sentence “fully” concurrently with

his state sentence. Because the district court had the discretion to adjust Campbell’s sentence to take into account the time he had served on his undischarged state

term, we vacate his sentence and remand for resentencing.

I. BACKGROUND

On December 29, 2008, Milwaukee police officers executing a search warrant at Campbell’s home discovered

powder cocaine, crack cocaine, and marijuana, and saw

Campbell attempt to throw a gun out of his bedroom

window. At the time, Campbell was on supervised

release for prior unrelated Wisconsin state convictions.

As a result of the new arrest, the state of Wisconsin revoked his supervised release and ordered Campbell to

serve three years in prison on the state offenses.

Campbell pled guilty to being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1) and was

sentenced in federal court on August 31, 2009, by

which time he had served approximately nine months

of his state term. Campbell acknowledged that he

qualified as an armed career criminal under 18 U.S.C.

§ 924(e), subjecting him to a fifteen-year mandatory minimum sentence. Campbell’s guidelines range was 188 to

235 months, but the district court concluded that the
No. 09-3527 3

statutory minimum was appropriate and ordered the

fifteen-year sentence to run concurrently with the remainder of his three-year state term.

Campbell asked the court to adjust his federal sentence

to take into account the nine months that he had

already served, so that his federal term would be run

effectively “fully” concurrent to his state sentence. The

district court indicated that it was not opposed to doing

so, but denied the request after concluding that it

lacked the authority to do so. The court reasoned that

while U.S.S.G. § 5G1.3(b) would permit a downward

adjustment, Campbell’s situation fell under § 5G1.3(c),

which did not. Section 5G1.3(b) states that the district

court should adjust a federal sentence to account for any

period of imprisonment already served on a state term,

when the state sentence results from an offense that was

relevant conduct to the federal offense of conviction

and led to an increase in the defendant’s offense level.

Section 5G1.3(c), which applies to cases (like Campbell’s)

in which a defendant was on supervised release at the

time of the instant offense and had it revoked, provides that a sentence may be imposed to run “concurrently, partially concurrently, or consecutively to the

prior undischarged term of imprisonment to achieve a

reasonable punishment for the instant offense.” U.S.S.G.

§ 5G1.3(c). Unlike § 5G1.3(b), however, § 5G1.3(c) does

not authorize a downward adjustment. An application

note provides that, with the exception of extraordinary

cases, “[u]nlike subsection (b), subsection (c) does not

authorize an adjustment of the sentence for the instant

offense for a period of imprisonment already served
4 No. 09-3527

on the undischarged term of imprisonment.” U.S.S.G.

§ 5G1.3, cmt. 3(E).

The district court, after receiving supplemental briefing

from the parties, concluded that it had no authority to

grant an adjustment in a § 5G1.3(c) situation such as

Campbell’s, and denied the request. Campbell appeals. 

II. ANALYSIS

Title 18, section § 3584 of the United States Code gives a

district court the discretion to impose a term of imprisonment either concurrently or consecutively to a prior

undischarged term, taking into consideration the factors

enumerated in 18 U.S.C. § 3553(a). The guideline at issue

in this case is U.S.S.G. § 5G1.3, which governs the imposition of a sentence that is subject to another undischarged term of imprisonment.

The district court was correct in noting that subpart (b)

of § 5G1.3 expressly authorizes a downward adjustment

of a sentence to take into account a period already served

on an undischarged term of imprisonment, while subpart (c) does not. But the district court erred in concluding

that this distinction in the guideline limits its exercise

of discretion. Although § 5G1.3 expresses the Sentencing

Commission’s views about how a court’s § 3584 sentencing discretion should be exercised, it does not

restrict that discretion after United States v. Booker, 543

U.S. 220 (2005). Post-Booker, “a debate about how much

discretion the Guidelines themselves confer has the air

of the scholastic.” United States v. Bangsengthong, 550 F.3d
No. 09-3527 5

681, 682 (7th Cir. 2008). Section 5G1.3 is an informative,

but not binding, articulation of a court’s power to

impose a sentence concurrently or consecutively under

§ 3584.

Nor does the § 924(e)(1) mandatory minimum to which

Campbell is subject preclude the sentence adjustment he

seeks. Section 924(e)(1) says that a defendant must “be

imprisoned . . . not less than fifteen years,” 18 U.S.C.

§ 924(e)(1) (emphasis added). We have on two occasions

held that this requirement is satisfied so long as a defendant’s total period of incarceration, state and federal

combined, equals or exceeds the statutory minimum.

First, in United States v. Ross, 219 F.3d 592, 594-95 (7th

Cir. 2000), we held that under § 5G1.3(b) a district court

could impose a sentence below the § 924(e)(1) mandatory

minimum to account for time served on a related undischarged sentence, so long as the defendant’s total period

of state and federal imprisonment equaled the statutory

minimum. There, the defendant broke into an Indiana

home and stole a handgun, leading to federal charges

relating to possession of a firearm and state charges of

residential burglary. Id. at 593. By the time the defendant was sentenced in federal court, he had served

34 months of the sentence for his state burglary conviction. Id. at 594. Ross faced a fifteen-year mandatory minimum sentence as an armed career criminal under

§ 924(e)(1), and the district court sentenced him to 188

months. Id. Ross asked the court to sentence him to 154

months to take into account the 34 months he had

already served on the related state conviction, but the
6 No. 09-3527

court declined to do so and instructed the Bureau of

Prisons to credit him the time instead. Id. On appeal, we

vacated the sentence, holding that the judge could

adjust the defendant’s federal sentence downward under

§ 5G1.3(b), so long as the total time served in state and

federal custody was not lower than the federal statutory

minimum. Id. at 594-95. We concluded that § 924(e)

“does not specify any particular way in which that imprisonment should be achieved,” id. at 595, and thus: 

The computation of the total term of imprisonment for purposes of § 924(e) may, consistently

with Application Note 2 to § 5G1.3, be accomplished by adding up the number of months the

defendant has served on the related conviction

and the number of months assessed in the federal

judgment. The total must equal or exceed the

statutory mandatory minimum of 180 months.

Id. To hold otherwise, we concluded, would be to “exalt

form over substance.” Id. at 594. We noted that giving a

credit in this manner “is not a departure from the guideline range [which would be prohibited except under

18 U.S.C. §§ 3553(e) or (f)]; it is simply another way of

achieving the required period of imprisonment.” Id. at 595.

More recently, in United States v. Cruz, 595 F.3d 744, 746

(7th Cir. 2010), we reaffirmed Ross’s interpretation of

§ 924(e). We confirmed Ross’s conclusion that a judge

applying § 924(e) “could deduct that number of months

from the federal sentence as long as the combined length

of the state and federal prison sentences was not less

than the federal statutory minimum.” Id. (contrasting
No. 09-3527 7

mandatory minimum language in § 924(e) with that in 21

U.S.C. § 841(b)(1)(A)). Other circuits have similarly interpreted § 924(e). See, e.g., United States v. Drake, 49 F.3d

1438, 1440-41 (9th Cir. 1995); United States v. Kiefer, 20 F.3d

874, 876-77 (8th Cir. 1994).

The fact that Ross involved § 5G1.3(b) and not § 5G1.3(c)

does not limit Ross’s applicability to this case. It is § 3584

that gives a sentencing court the discretion to impose

a concurrent sentence, taking into consideration the

factors set forth in § 3553(a). 18 U.S.C. § 3584(b). Section

5G1.3 is advisory, and thus its distinction between subsections (b) and (c) is informative in, but not binding

on, the way a district court exercises its § 3584 discretion.

And clearly, Ross’s interpretation of § 924(e) does not

depend on the applicability of a specific guideline. So,

contrary to its conclusion at sentencing, the district court

had the discretion to adjust Campbell’s sentence to

account for the time he had served on his state revocation.

Of course, the question of whether the court has this

discretion is distinct from the question of how it should

be exercised. The time for which Campbell seeks credit

is from a prison term for conduct wholly unrelated to that

underlying his federal sentence, and the argument can

be made that adjusting his term for that time provides

him with something of a windfall. Subsections (b) and (c)

of § 5G1.3 reflect a sensible policy distinction between

treatment of undischarged terms of imprisonment that

involve relevant conduct to the instant offense, and

those that do not. On remand, should the district court

decide to make the adjustment Campbell seeks, its
8 No. 09-3527

reasons for doing so should be articulated in light of the

§ 3553(a) factors and the policy considerations set

forth in § 5G1.3. If the district court disagrees with the

methodology set forth in § 5G1.3—which it necessarily

will be doing if it grants the adjustment—an adequate

explanation to “allow for meaningful appellate review

and to promote the perception of fair sentencing” should

be given. Gall v. United States, 552 U.S. 38, 50 (2007); see

also United States v. Plantan, 102 F.3d 953, 956 (7th

Cir. 1996) (court has “significant discretion to impose a

sentence which provides for a reasonable incremental

punishment given the facts of the case, so long as it

states its reasons for doing so.”).

III. CONCLUSION

Campbell’s sentence is VACATED and the case is

REMANDED for resentencing.

8-17-10