UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4742

FRANKIE WINSLOW,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Elizabeth City.

W. Earl Britt, District Judge.

(CR-96-7-2-BR)

Submitted: October 28, 1997

Decided: November 20, 1997

Before HALL, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, Anne M. Hayes, Assistant United States Attorney, Jane H.

Jackson, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Frankie Winslow pled guilty to conspiracy to possess cocaine and

crack cocaine and received a mandatory minimum sentence of 120

months. The conspiracy began in 1987 and continued until 1995.

Winslow contends that the district court erred in failing to reduce his

sentence to give him credit for a 47-month state sentence he had previously served for conduct which was part of the same conspiracy.

We affirm.

In preparing Winslow's presentence report, the probation officer

treated the conduct underlying his state conviction as relevant conduct

because it was listed as an overt act in the indictment. Accordingly,

no criminal history points were awarded for Winslow's 1988 state

sentence for cocaine trafficking. Winslow objected that his federal

sentence should be reduced to account for the forty-seven months he

served on the state sentence. He sought application of U.S. Sentencing Guidelines Manual § 5G1.3 (1995).

Guideline section 5G1.3(b) directs the sentencing court to impose

a concurrent sentence on a defendant who is subject to an undischarged term of imprisonment resulting from an offense that has been

fully taken into account in determining the offense level for the current offense. The commentary further directs that, when imposing

sentence pursuant to subsection (b), "the court should adjust the sentence for any period of imprisonment already served as a result of the

conduct taken into account in determining the guideline range for the

current offense" if the time served will not be credited to his federal

offense by the Bureau of Prisons. See USSG§ 5G1.3, comment. (n.2).

In his sentencing memorandum, Winslow conceded that, read literally, USSG § 5G1.3 did not apply to him. Nevertheless, he argued

that, under the rule of lenity, USSG § 5G1.3(b) should be applied in

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his case so that he would not be penalized twice for the same conduct.

Alternatively, he asked for a downward departure. The district court

overruled his objection and decided not to depart.

On appeal, Winslow repeats the arguments he made in the district

court. He also suggests that USSG § 5G1.3 applies to him because he

was paroled from his state sentence in 1993. He relies on United

States v. French, 46 F.3d 710, 717 (8th Cir. 1995) (applying South

Dakota law and finding that parolee is subject to undischarged sentence of imprisonment). However, because Winslow was paroled on

January 4, 1993, and was sentenced on October 1, 1996, his parole

term necessarily expired before his federal sentencing hearing even if

it was extended to the maximum of three years. Thus, French is of

no assistance to Winslow.* He was not subject to an undischarged

sentence of imprisonment, and USSG § 5G1.3 does not authorize the

sentencing court to give the defendant credit for discharged sentences.

See United States v. McHan, 101 F.3d 1027, 1040 (4th Cir. 1996),

cert. denied, ___ U.S. ___, 65 U.S.L.W. 3826 (U.S. June 16, 1997)

(No. 96-8994). The rule of lenity does not apply because the guideline

is not ambiguous. Consequently, the district court did not err in overruling Winslow's objection to the presentence report.

We therefore affirm the sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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*The Sixth and Seventh Circuits have taken a different approach from

that followed in French. See United States v. Jones, 107 F.3d 1147, 1163

(6th Cir. 1997) (finding that state law is not relevant to determining what

constitutes an undischarged sentence of imprisonment under federal sentencing guidelines), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3861 (U.S.

June 27, 1997) (No. 96-9164); United States v. Prewitt, 83 F.3d 812, 817

(7th Cir. 1996) (same); see also United States v. Stewart, 49 F.3d 121,

123 n.3 (4th Cir. 1995) (federal court construing federal sentencing

guidelines should not turn to state law for guidance).

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