*

Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. 

 1The Hobbs Act, 18 U.S.C. § 1951(a), makes it a federal crime for anyone to take, or attempt to take,

the property of another by robbery, and in so doing to interfere with commerce or with the movement of

articles or commodities in commerce. 

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul DESCALLY, a.k.a. Darrell Johnson, a.k.a. Johnny Evans, et al., Defendant-Appellant.

No. 99-4232.

United States Court of Appeals,

Eleventh Circuit.

June 28, 2001.

Appeal from the United States District Court for the Southern District of Florida.(No. 96-00022-CR-LCN),

Lenore C. Nesbitt, Judge.

Before ANDERSON, Chief Judge, and FAY and BRIGHT*

, Circuit Judges.

BRIGHT, Circuit Judge:

Paul Descally appeals the district court's imposition of a 100-month sentence for conspiring to violate

the Hobbs Act, 18 U.S.C. § 1951(a),1 by obstructing, delaying, and affecting commerce by forcibly taking

property from persons who appeared to be tourists. The federal sentence was imposed concurrently to a

thirty-year state sentence, and the district court refused to reduce Descally's federal sentence by the full

seventy-three months he had spent in state custody, before the federal sentencing, on a related crime. For the

reasons stated below, we reverse and remand the case to the district court for resentencing.

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231. Jurisdiction is proper in

this court based upon 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The notice of appeal was timely filed

pursuant to Fed. R.App. P. 4(b).

I.

On December 21, 1992, Descally was arrested in Florida and charged with the robbery of two

Venezuelan tourists at a gas station in Miami. He was convicted and ultimately sentenced to thirty years'

imprisonment for that offense on January 26, 1995. The state court, sentencing him as a repeat offender,

considered three strong-arm robberies, including this one, to which he later plead guilty in the federal district

court in 1998. He was sent to a Florida state prison and has been continuously in prison since his arrest.
On December 13, 1996, Descally was indicted in federal court, along with eleven co-defendants,

under 18 U.S.C. § 1951(a) ("Hobbs Act") for conspiring to and unlawfully taking United States currency,

travelers' checks, credit cards, passports, and other property in commerce belonging to tourists in Dade

County, Florida beginning in or about September, 1991, through on or about February 27, 1996. On July 27,

1998, he plead guilty to Count 3 of a second superseding indictment, charging him with violation of the

Hobbs Act by conspiring to rob beginning in or about August, 1983, and continuing through the date of the

return of the indictment, December 13, 1996, and robbing United States currency and an airline ticket from

three tourists on or about November 28, 1991, robbing United States currency, travelers' checks, airline

tickets, and Brazilian passports from two tourists on or about December 27, 1991, and robbing United States

currency and a camera from two Venezuelan tourists on December 21, 1992 (of which he was convicted and

sentenced to thirty years incarceration in the State of Florida as earlier stated). The district court considered

the aforementioned acts to which Descally plead guilty as relevant conduct for sentencing purposes, in

addition to an October 23, 1991 robbery of two Brazilian tourists. The government argued that between

October 23, 1991 and December 21, 1992, Descally participated in an ongoing conspiracy to target tourists

or apparent tourists for robberies, and he took or attempted to take property from victims by the use of force

or fear. The district court determined that all of the robberies were related to each other and were part and

parcel of the conspiracy to which Descally was pleading guilty. The district court also acknowledged that

Application Note 2 to section 5G1.3(b) of the Sentencing Guidelines would be recommended at sentencing.

Descally's sentencing guideline range was 87 to 108 months, based on a criminal history category

of II and a total adjusted offense level of 28. At the sentencing proceedings on January 26, 1999, Descally

argued that he had already served seventy-three months on his thirty-year state sentence and the district court

should grant him credit for time served, since the robbery for which he was incarcerated in state prison was

clearly relevant conduct to this conspiracy and the parties agreed to it in the plea agreement. The district

court rejected Descally's argument, holding that Descally's 100-month sentence relates back only to when he

was arrested by the federal authorities on the federal charges in 1996 while he was in state custody.

II.

The district court imposed a sentence of 100 months to run concurrently with the thirty-year state

sentence pursuant to its discretion. However, the district court did not apply Application Note 2 of U.S.S.G.

§ 5G1.3(b) to give the defendant credit on the federal sentence for the seventy-three months already served

on the state sentence. We review the district court's application of the sentencing guidelines de novo. United
States v. Johnson, 87 F.3d 1257, 1258 (11th Cir.1996).

Descally argues that the district court erred in failing to follow commentary to U.S.S.G. § 5G1.3(b)

in Application Note 2. Under that note, the district court could have reduced Descally's federal sentence by

the amount of time he had spent in state custody on a related crime. U.S.S.G. § 5G1.3 provides:

(a) If the instant offense was committed while the defendant was serving a term of imprisonment

(including work release, furlough, or escape status) or after sentencing for, but before commencing

service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.

(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s)

that have been fully taken into account in the determination of the offense level for the instant

offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged

term of imprisonment.

(c) (Policy Statement) In any other case, the sentence for the instant offense 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.

Descally is correct that subsection (b) applies to this case because the undischarged term of

imprisonment (the thirty-year state robbery sentence) resulted from an offense that was fully taken into

account in determining the sentence he received under 18 U.S.C. § 1951(a).

U.S.S.G. § 5G1.3, Application Note 2 provides:

Adjusted concurrent sentence-subsection (b) cases. When a sentence is imposed 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 instant offense

if the court determines that period of imprisonment will not be credited to the federal sentence by the

Bureau of Prisons. Example: The defendant is convicted of a federal offense charging the sale of

30 grams of cocaine. Under § 1B1.3 (Relevant Conduct), the defendant is held accountable for the

sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and

sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state

offense and has served six months on that sentence at the time of sentencing on the instant federal

offense. The guideline range applicable to the defendant is 10-16 months (Chapter Two offense level

of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance of responsibility; final

offense level of 12; Criminal History Category I). The court determines that a sentence of 13 months

provides the appropriate total punishment. Because the defendant has already served six months on

the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven

months, imposed to run concurrently with the three months remaining on the defendant's state

sentence, achieves this result. For clarity, the court should note on the Judgment in a Criminal Case

Order that the sentence imposed is not a departure from the guideline range because the defendant

has been credited for guideline purposes under § 5G1.3(b) with six months served in state custody

that will not be credited to the federal sentence under 18 U.S.C. § 3585(b).

Putting aside for a moment the question of whether this commentary mandates a seventy-three-month

credit in this case, the government argues that we should dismiss this appeal because Descally waived his

right to appeal his sentence when he signed the plea agreement, and the "concurrent sentence doctrine"

precludes consideration of this appeal. This court already rejected the government's first argument when it
 2

See United States v. Paul Descally, No. 99-4232-BB (11th Cir. July 21, 2000). 

 3See Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). 

denied the government's motion to dismiss the appeal.2

 The district court, before accepting Descally's guilty

plea, stated unequivocally that Descally could appeal his sentence if it was more severe than he expected.

We deem the government's argument as frivolous.

 We also disagree with the government's assertion that the concurrent sentence doctrine requires

dismissal of Descally's appeal. That doctrine allows a reviewing court not to consider the validity of the other

counts of conviction when a defendant is sentenced to concurrent terms on several counts and the conviction

on one count is sustained. United States v. Davis, 730 F.2d 669, 671 n. 2 (11th Cir.1984) (declining to apply

the concurrent sentence doctrine because the government made no affirmative showing that the likelihood

of harm to the defendant in the form of adverse collateral consequences was so remote as to be insignificant).

Descally may not serve the full measure of his state sentence. The government failed to demonstrate that

there is no likelihood of any collateral effect on his time incarcerated under his state sentence. For example,

in Florida, where Descally committed his crimes, he may be eligible for parole after a certain number of years.

Turning to U.S.S.G. § 5G1.3 and Application Note 2, the parties dispute the amount of time that

should be credited to Descally's federal sentence. Descally argues that he is entitled to a reduction of his

federal sentence based on the amount of time he served on his state sentence up to the time of his federal

sentencing. The government contends that the amount of time to be reduced is limited to the amount of time

he served in state custody after his arrest on federal charges. The government also maintains that Application

Note 2's example is inapplicable to this case because the purpose of section 5G1.3, i.e., to mitigate the

possibility that two separate prosecutions will greatly increase a defendant's sentence,3

 is not met in this case.

The government further maintains that Application Note 2 is not applicable because the state and federal

conduct were not identical, and Descally's federal sentence does not exceed his state sentence.

The district court provided the following statement of reasons for refusing to apply Application Note

2 under U.S.S.G. § 5G1.3(b):

Well, I don't—We're talking about a 30-year sentence. Now, I mean, what—unless there's

something miraculous that's going to occur, he's going to serve a substantial portion of that. So

assuming that even the 108 months is a proper sentence, which I certainly think it would be in this

case, I don't see what all these calculations should be about if some of this sentence should run—if

the sentence has to be imposed concurrently under 3G1.3(b). So I'm just kind of missing the point

when we are talking about a long sentence like this.
 4

Ultimately the district court sentenced Descally to 100 months, not 108 months which was at the

highest range of the term suggested by the guidelines, to run concurrently with his state sentence from

April 17, 1996, the date of his arrest on the federal charges. The difference between the district court's

approach and the defendant's approach to the construction of Application Note 2 is forty months. 

So if I give him 108 months,4

 which he should get, and it runs concurrent with what he's got,

then there we are. I mean he still has all that time he has to serve.

See Sentencing Tr. at 277-78.

 The arguments presented here are matters of first impression in this court. The United States Court

of Appeals for the Third Circuit addressed some of the same issues in United States v. Dorsey, 166 F.3d 558

(3d Cir.1999) (involving a defendant charged by both state and federal authorities with the same underlying

crime—the illicit possession of a firearm). In Dorsey, the Third Circuit rejected the government's arguments

that Application Note 2 was invalid and determined that, under statutory law and guidelines, a district court

has the discretion to make a federal sentence concurrent with other terms of imprisonment. Id. at 561-63;

see also United States v. Kiefer, 20 F.3d 874, 875-76 (8th Cir.1994) (holding that a sentencing court had

authority under section 5G1.3(b) to grant a defendant credit on his federal sentence for all of the time served,

before the federal sentencing, in state custody on a related state charge). The Dorsey court also concluded

that section 5G1.3 did not conflict with 18 U.S.C. § 3585(b), which only allows the Attorney General (by way

of delegation to the Bureau of Prisons) to award custody credit, in a situation where a federal court exercises

its discretion to impose a concurrent sentence and where that sentence must be truly concurrent to a sentence

for a related offense, the subject of Application Note 2. Dorsey, 166 F.3d at 561-63.

Upon review, we adopt the reasoning of the Third Circuit in Dorsey and we agree with Descally's

position that, according to Dorsey and the guideline commentary language ("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 instant offense"), Application Note 2 is applicable even when the

federal sentence does not exceed that imposed by the state.

Descally was convicted in state court of three of the robberies that formed part of the conspiracy

outlined in the federal plea agreement: (1) convicted and sentenced in state court on July 19, 1994 of the

December 27, 1991 robbery; (2) convicted and sentenced in state court on August 19, 1994 of the November

28, 1991 robbery; and (3) convicted on January 11, 1995 of the December 21, 1992 robbery and sentenced

in state court as a repeat offender due to (1) and (2). See Exh. 1, Presentence Investigation Report at 53-54.

We hold that the district court should have related his sentence back to December 21, 1992, at which time
his state imprisonment began on his thirty-year state sentence as a repeat offender on the basis of the three

robbery convictions involved in this conspiracy.

III.

 Where the commentary to a guideline section serves to interpret that section or to explain how it is

to be applied, a sentencing court is bound to consider its applications, unless it is plainly erroneous or

inconsistent with the guidelines. Stinson v. United States, 508 U.S. 36, 41-48, 113 S.Ct. 1913, 123 L.Ed.2d

598 (1993). Here, Descally's state sentence arose out of conduct which formed part of the conspiracy to

violate the Hobbs Act, and constituted relevant conduct at the federal sentencing. Therefore, the district court

erred in failing to apply Application Note 2 to U.S.S.G. § 5G1.3(b) and take into account time already served,

before the federal sentencing, for the robbery that constituted part of the same misconduct in violation of the

Hobbs Act.

Accordingly, we VACATE Descally's sentence and REMAND the case to the district court for

resentencing consistent with this opinion.