*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30254

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVA BRANTLETTE ANDING,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

(97-CR-64-1)

March 8, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Appellant Alva Brantlette Anding appeals the district court’s

refusal to designate whether his sentence should run concurrent or

consecutive to his yet to be imposed state sentence. Because we

find no plain error, we affirm.

BACKGROUND

Anding pled guilty to two counts of distribution of dmethamphetamine, one count of distribution of methamphetamine, one

count of carrying a firearm in relation to a drug trafficking

crime, and one count of being a felon in possession of a firearm.

The court sentenced Anding to 130 months on each of the

distribution counts, 60 months for carrying a firearm in relation
 

1

The record does not reflect whether Louisiana has subsequently sentenced Anding for violation of his parole.

2

to a drug trafficking crime, and 120 months for being a felon in

possession of a firearm. All of the sentences were to run

concurrently except for the 60-month prison term for carrying a

handgun during a drug trafficking crime. 

At the time he committed these offenses, Anding was on state

parole for unrelated drug trafficking crimes. Although he had pled

guilty to violating the terms of his Louisiana parole, he had not

been sentenced for the parole violation at the time his federal

sentence was imposed.1 Appellant’s only argument on appeal is that

the district court should have designated whether his federal

sentence was to run consecutively or concurrently to the yet to be

imposed state sentence.

STANDARD OF REVIEW

The parties dispute the standard of review that applies in

this case. Although the record ought to be preserved in each

individual case, it seems clear enough here that Anding and the

district court were on the same wavelength in regard to the

possibility of a concurrent sentence. Anding’s counsel, the

Federal Public Defender, requested a concurrent sentence from the

district court in the sentencing hearing immediately before

Anding’s sentencing hearing. In United States v. Butler, the

Federal Public Defender informed the court that Butler was facing

a state sentence for revocation of parole due to his federal
 

2The first sentencing hearing in Butler occurred on March 9, 1998. The sentencing at issue in this

case occurred four days later on March 13, 1998. At the second hearing, the district court

reconsidered Butler’s sentence and then conducted Anding’s sentencing hearing.

3

conviction and requested concurrent federal and state sentences.2

The district court initially rejected this request, but four days

later, the court reconsidered the request at a new hearing. The

court again rejected Butler’s request because it believed that it

lacked the authority to order the state sentence to run

concurrently and thought that the issue should be decided by the

state court. At the close of the Butler sentencing, the court

mentioned that it would be facing the same issue “in about five

minutes,” presumably referring to Anding’s impending sentence. At

Anding’s hearing, the issue was again raised whether the state

sentence would run concurrently or consecutively to the federal

sentence. Although the Federal Public Defender did not

specifically request that Anding’s sentence run concurrently, as he

had previously done in Butler, the court and counsel recognized

that it was facing the “same issue” in Anding.

But, the Federal Public Defender cannot claim the advantage of

the Butler hearing and ignore the disadvantage that accrues. While

he placed the concurrent sentencing issue before the court

sufficiently to preserve error, Anding’s counsel conceded in the

district court that no statute or sentencing guideline is on point

and he did not object to the district court’s failure to apply the

Guidelines to this sentencing issue. Appellant relies on United

States v. Richardson to argue that he preserved his sentencing
4

issue for appeal by simply requesting a concurrent sentence. See

87 F.3d 706, 710 (5th Cir. 1996). Appellant’s reliance on

Richardson is misplaced, however, because, unlike the defendant in

Richardson, appellant’s counsel specifically told the district

court that, “there is no provision under Title 18 or the Guidelines

for a case like this.” Because Anding did not alert the district

court to the issue before it, and because he now seeks to justify

his argument with both statutory and Guidelines authority not

presented to the trial court, Anding is subject to the plain error

standard of review. See id.

An appellant who raises an issue for the first time on appeal

has the burden of showing 1) the existence of actual error; 2) that

the error was plain (or “clear” or “obvious”) under current law at

the time of sentencing; and 3) that it affected his substantial

rights. See United States v. Castro, __ F.3d __, __ (5th Cir.

1999) (en banc) (per curiam). A plain error affects an appellant’s

substantial rights only if the error was prejudicial; in other

words, “[i]t must have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.

Ct. 1770, 1778 (1993). Because the defendant bears the burden of

persuasion, a court of appeals will not correct the error unless

the defendant makes a “specific showing of prejudice.” Id. 507

U.S. at 735, 113 S. Ct. at 1778. Even when an appellant satisfies

this burden, however, this court has discretion whether to correct

the error and will not do so unless the error “seriously affect[s]
5

the fairness, integrity or public reputation of judicial

proceedings.” Id. 507 U.S. at 735-36, 113 S. Ct. at 1778-79

(quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct.

391, 392 (1936)).

DISCUSSION

This court has permitted a federal district court to

“prospectively forbid its sentence from being served concurrently

with any sentence that may subsequently be handed down by a state

court, even when the state proceedings arise from identical offense

conduct.” United States v. Brown, 920 F.2d 1212, 1216 (5th Cir.

1991) (per curiam). Thus, the district court technically erred

when it implied that it lacked the authority to order Anding’s

federal sentence to run concurrently with a state sentence not yet

imposed. See 18 U.S.C. § 3584. The court’s technical error,

however, was not clear or obvious at the time of sentencing. 

Section 5G1.3 of the Sentencing Guidelines addresses the

imposition of a sentence on a defendant who is subject to an

undischarged term of imprisonment. As is evident from the parties’

briefs, there is a legitimate dispute as to whether § 5G1.3(a) or

§ 5G1.3(c) applies and whether application note three or note six

applies. Further, although the parties dispute whether subsection

(c) requires a consecutive sentence for parole revocation, our case

law supports the government’s assertion that application note six

requires a consecutive sentence for situations like Anding’s. See

United States v. Hornsby, 88 F.3d 336, 340 (5th Cir. 1996) (per
6

curiam); United States v. Torrez, 40 F.3d 84, 88 n.2 (5th Cir.

1994). In addition, this court has not clearly resolved whether a

federal district court should order a defendant’s sentence to run

concurrently or consecutively to a yet to be imposed state parole

revocation sentence. 

This is not a case where a district court’s error was “so

obvious, clear, readily apparent, or conspicuous that the judge was

derelict by not recognizing the error.” United States v. Jones,

132 F.3d 232, 248 (5th Cir. 1998). Since the district court did

not plainly err in refusing to decide whether to order Anding’s

federal sentence to run concurrently with his subsequent state

sentence, we affirm the sentence.

AFFIRMED.