1 The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3346

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Preston McMorris, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: April 13, 2007 Filed: May 23, 2007

___________ Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.

___________ PER CURIAM. Preston McMorris appeals the eighty- six month sentence he received on resentencing for being a felon in possession of a firearm. The resentencing followed a remand by this court to co rrect an ex post facto viol ation in McMorris's first sentence. SeeUnited States v. McMorris , 180 F. App'x 631, 632 (8th Cir. 2006). McMorris now argues the district court 1 erred by applying a cro ss-reference to United States Sentencing Guideline (U.S.S.G.) § 2A 2.1(a)(2) (2003) (assault with intent to commit murder) pursuant to U.S.S.G. § 2K 2.1(c)(1), erred by failing to depart2 Under the 2003 version of the guidelines applicable in this case, U.S.S.G. § 2A2.1 sets forth a base offense level of 28 "if the object of the offense would have constituted first degree murder ," and a base offense level of 22 "otherwise." The district court applied a base offense level of 22 under the "otherwise" provision.
-2- downward fourteen months to reflect credit for time served in state custody on subsequently dismissed state charges arising out of the same incident that formed the basis for this federal charge, and engage d in vindictive resentencing by applying a three-level upward adjustment under U.S.S.G. § 3A1.2(b)(1) that was not used to calculate his first sentence. We affirm.

The parties agree the cross-refe rence to U.S.S.G. § 2A2.1(a)(2) 2turns on whether McMorris acted with "malice afor ethought" when he "used or possessed any firearm or ammunition in connection w ith the commission or attempted commission of another offense." U.S.S .G. § 2K2.1(c)(1). Malice aforethought is established by showing

the defendant's intent at the time of a killing willfully to take the life of a human being or an intent willfully to act in callous and wanton disregard of the consequence of human life. Malice may be established by evidence of conduct which is reckless and wanton, and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.

United States v. Johnson , 879 F.2d 331, 334 (8th Cir. 1989) (quotations and citation omitted).

The facts indicate McMorris and another person fled fro m undercover police officers in a high speed chase over the course of about twenty city blocks in St. Louis, Missouri. During the chase, the undercover o fficers (in four vehicles) activated their lights and sirens. McMorris's car stopped and McMorris ran into the yard of a3 "Administrative procedures exist within the Bureau of Prisons to review the Bureau's failure to credit the time [McMorri s] has served, should such occur." Pardue , 363 F.3d at 699. Thus, if the Bureau of Pris ons fails to credit the time after a prisoner
-3- residence with the police pursuing on foot . McMorris grabbed a gun located in the yard and fired at least three shots at the o fficers from a distance of fifty or sixty feet. McMorris stipulated he fired the gun at the officers pursuing him. Reviewing the district court's factual findings for clear error, seeUnited States v. Mack , 452 F.3d 744, 745-46 (8th Cir. 2006) (standard of review); United States v. Lincoln , 589 F.2d 379, 381 (8th Cir. 1979) ("[T]he question of defendant's intent [is] an issue of fact"), we cannot say the district court clearly erred in finding McMorris acted with malice aforethought and therefore did not err in cross-referencing U.S.S.G. § 2A2.1(a)(2) when calculating McMorris's ba se offense level. Cf. United States v. Wilson , 992 F.2d 156, 158 (8th Cir. 1993) (affirming the more punitive cross reference for assault with intent to commit first degree murd er under U.S.S.G. § 2A2.1(a)(1) where the defendant fired a shotgun out of a vehi cle toward a group of people and hit a bystander).

Second, the district court did not err in failing to depart downward fourteen months to reflect credit for the time McMo rris served in state custody, because the issue of credit for time "spent in state custody pending trial on subsequently dismissed state charges arising out of the same inci dent for which [defe ndants] were convicted in federal court" is an issu e "to be determined by the United States Attorney General after the criminal defendant has begun to serve his sentence ratherthan by a federal district court at the time of sentencing." United States v. Moore , 978 F.2d 1029, 1030- 31 (8th Cir. 1992) (addressing the application of 18 U.S.C. § 3585(b) with respect to determinations of credit for time served). The Attorney General has delegated authority to grant credit for time serv ed to the Bureau of Prisons. Id. at 1031 (citing 28 C.F.R. § 0.96 (1990)). As a consequence, the "district court correctly left this credit calculation for time served issue to th e Bureau of Prisons." United States v. Pardue , 363 F.3d 695, 699 (8th Cir. 2004). 3exhausts his administrative remedies, the failure is subject to challenge in federal court by filing a habeas petition under 28 U.S.C. § 2241. Id. (citing Rogers v. United States , 180 F.3d 349, 358 (1st Cir. 1999)).

4 North Carolina v. Pearce , 395 U.S. 711 (1969).
-4- Finally, the district court did not enga ge in vindictive resentencing by applying a three-level upward adjustment under U.S.S.G. § 3A1.2(b)(1) that was not used to calculate McMorris's first sentence, becau se McMorris's second sentence was shorter than his first (even though arrived at in a different manner). "A second sentence that is harsher than the first is the 'sine qua non' of a Pearce 4vindictiveness claim." United States v. Vontsteen , 950 F.2d 1086, 1092 (5th Cir. 1992) (quoting Hardwick v. Doolittle , 558 F.2d 292, 299 (5th Cir. 1977)). "S ince a more severe sentence was not imposed, [the defendant] cannot make out a claim of vindictiveness." United States v. Arrington , 255 F.3d 637, 639 (8th Ci r. 2001) (citing Vontsteen , 950 F.2d at 1092); see also United States v. Evans , 314 F.3d 329, 334 (8th Cir. 2002) (indicating a presumption of vindictiveness does not apply "so long as the total sentence imposed upon remand is no greater than the total origin al sentence"); United States v. Edwards , 225 F.3d 991, 993 (8th Cir. 2000) (rejecting a vindictive sentencing claim for the use of a guidelines enhancement not used to calculate the original sentence even though the second sentence was longer than the first because the enhancement would have applied "but for" the erroneous calculati on of the first sentence); United States v. Bailey , 206 F. App'x 650, 653 (8th Cir. 2006) (re jecting a vindictive sentencing claim based on the application of a guidelines e nhancement to calculate a second sentence when the enhancement was not used to cal culate the first sentence and the second sentence was no longer than the first).

For the reasons stated, we affirm the district court in all respects.

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