* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 31 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 98-6393

v. (D.C. No. 96-CR-27-A) DANNY RAY HILL, (W. D. Okla.) Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Defendant Danny Ray Hill appeals from the district court’s Order Nunc Pro Tunc and other orders adjusting his sentence to ref lect time concurrently served in custody on related state offenses.1 Defendant appealed the district court’s determinati on of his sentence. This

court affirmed his sentence on October 29, 1997. S ee United States v. Hill , 129 F.3d 131, 1997 WL 687734 (10th Cir. 1997). Defendant also filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Before the district court addressed the merits of the section 2255 motion, however, it construed Defe ndant’s notice of appeal from the nunc pro tunc order as a request for a certific ate of appealability. On October 30, 1998, the court declined to issue a certificate of appealability and denied Defendant’s request to proceed in forma pauperis on appeal. See R., Vol. 1, Doc. 155. The district court denied the section 2255 motion on December 18, 1998. Defendant’s appeal of the section 2255 motio n is pending before this court. -2- Defendant was indicted on federal charges on January 21, 1996. He then was arrested on those charges, arraigned, and relea sed on bond on February 27, 1996. On June 26, 1996, Defendant entered a plea o f guilty to possession of methamphetamine with intent to distribute in violat ion of 21 U.S.C. § 841(a)(1) for conduct which occurred in September and Novembe r 1995. Although he was placed in federal custody at the conclusion of the plea hearing, Defendant was not sentenced until January 27, 1997. On that date, th e United States District Court for the Western District of Oklahoma sentenced Defe ndant to 121 months’ imprisonment and five years’ supervised release, an d the United States Bureau of Prisons commenced the federal sentence. 1 In April 1998, Defendant filed a Motion to Clarify Sentence in which he claimed that the federal sentence should have begun running on June 26, 1996, because he should have been given credit for time h e spent in custody for related2 The district court’s nunc pro tunc order states, in pertinent part: Defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 113 months and 30 days to run concurrently with the time spentin state custody for a related offense from January 5, 1996 through January 9, 1996 and February 28, 1996 through April 11, 1996 for a total of 7 months and 3 days served in state custody. Sentence impos ed is not a departure from the guidelines, as the time was serv ed concurrently with the related state offense, pursuant to USSG § 5G1.3(b), Application Note 2. R., Vol. 1, Doc. 144. -3- state offenses. On May 15, 1998, the court issued an order stating that it had intended federal credit to commence on June 26, 199 6. In response, the Government filed a Motion to Correct Judgment and C ommitment Order Nunc Pro Tunc. Essentially, the Government claimed that the court’s May 15 Order granting pre-sentence credit for the federal senten ce violated 18 U.S.C. § 3585(b) because Defendant’s state sentence had been credite d for that time period. The Government explained that the court’s intent for fe deral credit to commence on June 26, 1996, could be met if the court adjusted t he sentence to a lesser period of time pursuant to United States Sentencing Guideline s § 5G1.3(b), n.2. On September 2, 1998, the district court ordered that the judgment be corrected nunc pro tunc to impose a sentence of 113 months and 30 days to run concurrently with the period of time spent in custody for a related s tate offense. 2 Subsequently, in an Order filed October 23, 1998, the district courtdenied Defendant’s traverse to3 Defendant also seems to claim that his sentence sho uld be adjusted

because he concurrently served a state sentence unt il April 28, 1997. This argument is patently without merit. The term “conc urrent” means that Defendant may serve his state and federal sentences at the sa me time; it does not allow a federal court to adjust a federal sentence for thatpart of the state sentence served after the federal sentence commences, i.e., after J anuary 27, 1997, in this case. -4- the Government’s motion to correct and reaffirmed t hat the lesser term of 113 months and 30 days “accommodates the difference between [the court’s] original intention and the actual administration of his pris on sentence.” R., Vol. 1, Doc.
154 at 1. On appeal, Defendant claims that the adjusted sente nce fails to account for the time he spent in custody on related state charg es from January 5, 1996, to June 26, 1996. 3 Whether the district court correctly calculated t he time served in custody on a related state charge is a factual dete rmination that we review for clear error. See United States v. Gomez-Arrellano , 5 F.3d 464, 465 (10th Cir. 1993). We review the legal applications and interp retations of the Sentencing Guidelines de novo. See id. In its May 15, 1998 Order, the district court state d that it had intended the federal sentence to commence on June 26, 1996, the date it remanded Defendant to federal custody. However, the Bureau of Prisons did not commence Defendant’s federal sentence until he was actually sentenced on January 27, 1997; instead, Defendant was serving a state sentence on related charges from June 26,4 We are unable to conform the actual adjustment of 7 months and 1 day

with the court’s stated calculation of 7 months and 3 days. Nevertheless, the adjustment for the time served for a related state offense between June 26, 1996, and January 27, 1997, pursuant to U.S.S.G. § 5G1.3( b), n.2, was correct. -5- 1996, through January 27, 1997. It appears from bo th the September 2, 1998 Order and the October 23, 1998 Order that the distr ict court attempted to adjust Defendant’s sentence to reflect the time he spent i n custody serving a state sentence for a related offense pursuant to U.S.S.G. § 5G1.3, n.2. Our reading of these two orders leaves us with the firm conclusionthat the court properly reduced Defendant’s original 121-month sentence by 7 months and 1 day to 113 months and 30 days. 4 This adjustment correctly reflects the time Defen dant served on an undischarged sentence for a related st ate offense from the date on which he was remanded to federal custody, June 26, 1996, to the date on which he was sentenced for the instant offense, January 27, 1997. See U.S.S.G. § 5G1.3(b), n.2.; R., Vol. 1, Docs. 144, 154. However, some confusion concerning the sentence adj ustment remains. The court’s September 2 Order tells us that the 113 -month and 30-day adjusted sentence would “run concurrently with the time spent in state custody for a related offense from January 5, 1996 through January 9, 199 6 and from February 28, 1996 through April 11, 1996 for a total of 7 months and 3 days served in state custody.” R., Vol. 1, Doc. 144. The problem with this statement is that while it5Neither the court’s Orders nor the Government’s or Defendant’s briefs

clearly articulates the suspect periods of time that Defendant claims the court failed to properly evaluate. Accordingly, our stat ement setting forth the six periods of time is based on a document from the Fed eral Correctional Institute El Reno, Oklahoma, which was appended to Defendant’s b rief. See Appellant’s Br. at Exh. A. Because this document does not fully explain the status of the six terms of imprisonment, the district court should ve rify these periods of imprisonment on remand. -6- mentions the time Defendant spent in state custody from January 5 to January 9, 1996, and February 28 to April 11, 1996, its calcul ations do not appear to include or otherwise account for this time. Additionally, Defendant claims that the court did not properly consider several other periods of imprisonment for related state charges. In short, neither the court’s orders nor the record makes clear whether or how the court analyzed the following six periods of incarceration between January 5, 1996, and June 26, 1996: (1) January 5 through January 9; (2) January 21 through January 24; (3) February 10 through February 13; (4) February 16 through February 27; (5) February 28 through April 11; and (6) April 12 to June
26. 5 Consequently, we remand for the court’s reconside ration of these periods in light of the following discussion. We begin our discussion by explaining how section 5 G1.3(b) of the Sentencing Guidelines applies. This section provid es that if a defendant has an undischarged term of imprisonment resulting from of fenses “that have been fully taken into account in the determination of the offe nse level for the instant-7-

offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.” U.S.S.G . § 5G1.3(b). More important to this case, Application Note 2 to secti on 5G1.3 explains that when a sentence is imposed under subsection (b), “the court should adjust the sentence for any period of imprisonment already served as a result of conduct taken into account in determining the guideline range for the instant offense” if that period of imprisonment is not credited to the federal sent ence by the Bureau of Prisons under 18 U.S.C. § 3585(b). See id. at n.2. Plainly, Application Note 2 only allows an adjustment for that part of an undischarg ed term of imprisonment that is served before a defendant’s federal sentence commen ces and that is not credited under 18 U.S.C. § 3585(b). Thus, Defendant’s sente nce should have been adjusted to reflect each undischarged period of inc arceration for related state charges between January 5, 1996, and January 27, 19 97, that satisfied the requirements of U.S.S.G. § 5G1.3(b). With respect to the first and fifth terms of impris onment, from January 5 through January 9, 1996, and February 28 through Ap ril 11, 1996, the Government concedes that Defendant was in state cus tody on related state offenses for these periods of time. While the dist rict court mentioned these two periods of imprisonment in its September 2, 1998 Nu nc Pro Tunc Order, its adjustment of Defendant’s sentence to 113 months an d 30 days does not appear to6 Of course, the district court should only adjust De fendant’s sentence with

respect to the first and fifth periods if they are part of an undischarged term of imprisonment. -8- have included or accounted for them. The language of the Nunc Pro Tunc Order suggests that the court believed that it was adjust ing Defendant’s sentence pursuant to U.S.S.G. § 5G1.3(b), n.2. See R., Vol. 1, Doc. 144 (confirming that the adjustment was “not a departure from the guidel ines, as the time was served concurrently with the related state offense, pursua nt to USSG § 5G1.3(b), Application Note 2”). However, because the court’s actual adjustment only reflects the time Defendant spent in custody from J une 26, 1996, until January 27, 1997, i.e., 7 months and 1 day, we remand for the d istrict court’s reconsideration of whether Defendant’s sentence should be further a djusted to reflect the first and fifth periods of imprisonment for related state off enses. 6 As to the second, third, fourth, and sixth periods of imprisonment, we cannot tell if

or how the court analyzed them. On remand, the threshold question for the district court is whether, pursuant to 18 U .S.C. § 3585(b)(2), the Bureau of Prisons credited any of these periods of imprisonme nt to Defendant’s federal sentence for charges imposed after November 1995, the date of the instant offense. If so, the court may not use these period s to adjust Defendant’s sentence under Application Note 2 to section 5G1.3 of the Gu idelines. See United States v. Dorsey , 166 F.3d 558, 560 (3d Cir. 1999). However, if any of the above7 While it appears as though the second, third, and f ourth periods may be discharged terms of imprisonment, the record is notconclusive on this point. -9- periods of incarceration were credited to a state s entence, they may not be credited against Defendant’s federal sentence for t he instant offense under 18 U.S.C. § 3585(b), but they may meet the criteria fo r an adjustment under U.S.S.G. § 5G1.3, n.2. Under Application Note 2, the distri ct court must determine if the second, third, fourth, or sixth periods of incarcer ation were undischarged terms of imprisonment 7and involved related state offenses which were tak en into account in determining the guideline range for the instant offense. If so (and if the Bureau of Prisons did not give Defendant credit tow ard his federal sentence for any of these periods of incarceration), then the co urt should adjust Defendant’s sentence to reflect any or all of those periods of incarceration. See U.S.S.G. § 5G1.3(b), n.2. However, if these periods are dis charged terms of imprisonment, or if none of them involved relevant conduct for pu rposes of determining the total offense level for the instant offense, they are notsuitable for an adjustment under U.S.S.G. § 5G1.3(b), n.2, and the sentence is corre ct as to the second, third, fourth, and sixth periods of imprisonment. To the extent that Defendant raises an argument con cerning his good-time credit, he did not present this issue to the distri ct court, and, therefore, it is not properly reviewable at this time. See Walker v. Mather (In re Walker ), 959 F.2d-10-

894, 896 (10th Cir. 1992). In sum, we REMAND for the district court’s reconsid eration of the six periods of imprisonment between January 5, 1996, an d June 26, 1996, as they relate to Defendant’s federal sentence for the inst ant offense. Entered for the Court

Monroe G. McKay Circuit Judge