# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 30492

**United States of America,**

Plaintiff

— Appellee **,**

versus

**Stephen James Young,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:19

- CR

- 359

- 1

Before **Elrod, Southwick,** and **Costa,** Circuit Judges

**. Per Curiam**  **:** *

Defendant Young pled guilty to passing counterfeited bills. His criminal history included a prior state conviction for possession of methamphetamine, for which he was sentenced to four months imprisonment, and pending state charges for possession of
metha mphetamine. He appeals from the district court’s refusal to consider

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set for th in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 1, 2021

Lyle W. Cayce Clerk Case: 20-30492 Document: 00516039418 Page: 1 Date Filed: 10/01/2021No. 20

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2 the four

- month state sentence for what he argues is related conduct when deciding on his federal sentence. We **VACATE** the sentence and
**REMAND** for further proceedings in accordance with t his opinion.

FACTUAL AND PROCEDURAL HISTORY
In March 2020, Stephen James Young pled guilty, pursuant to a written agreement, to passing counterfeited bills in December 2018

. The probation officer assigned Young a base offense level of 9, applied a specific offense characteristic to reach an adjusted offense level of 15, and deducted two levels for acceptance of responsibility, for a total offense level of 13. Young’s criminal history category was VI, and he faced a guidelines range of imprisonment of 33 to 41 months

. Relevant to this appeal, Young’s criminal history included a March 2019 arrest for possession of methamphetamine, for which he was convicted in August 2019 in s tate court in Lafayette, Louisiana, and sentenced to four months of imprisonment ( “ Lafayette conviction ” ). It also included a pending charge in Louisiana state court in Jennings, Louisiana, for a June 12, 2019 arrest for possession of methamphetamine, wit h a May 11, 2020 trial
date (“Jennings charge ”). He remained in state custody from the June 12 arrest, and the federal district court ordered his delivery from Louisiana state jail to federal custody for his December 12, 2019 arraignment.
At Young’s August 3, 2020 federal sentencing, the district court adopted the Presentence Report and sentenced Young within the guidelines range to 41 months of imprisonment and 3 years of supervised release. At the time of his sentencing, Young had been detained since his June 12, 2019 arrest, had been convicted on th e Lafayette conviction and sentenced to four months imprisonment for it, and still had the Jennings charge pending

. Case: 20-30492 Document: 00516039418 Page: 2 Date Filed: 10/01/2021No. 20

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3 Young filed a sentencing memorandum requesting a “downward variant sentence,” arguing that his criminal history was over

- represented, he
h ad addiction s to drugs and gambling , and his offense was unsophisticated
and non

- violent. He also asked the district court to adjust his sentence under U.S.S.G. § 5G1.3(b)(1) by four months for the time in custody for the Lafayette conviction that he woul d have completed by the federal court’s sentencing. He asserted that his four months in custody in connection with his Lafayette conviction “will be credited toward his sentence , ” citing 18 U.S.C. § 3585(b). Young asserted that he committed the instant

c ounterfeiting offense between December 2018 and June 2019 and that the Lafayette offense was related because he had counterfeited bills to purchase
the narcotics. He also requested that the district court apply Section 5G1.3(d) and order the instant sente nce to be served concurrently with the anticipated, undischarged sentence for the Jennings charge , which, he argued, was also related to the instant offense.
Much of the discussion at sentencing is relevant to Young’s appeal regarding the request of a fo ur

- month adjustment or downward departure. The conversation between Young himself and the court center ed around the pending Jennings charge, and the court’s failure to consider that charge is not appealed. Young’s counsel, however, requested the court co nsider the four months served for the Lafayette conviction, and the district court’s refusal to do so is the basis of this appeal.

The district c ourt stated that it understood that Young wanted four months off his sentence, but it clarified that there wo uld be time later in the sentencing for that discussion:
All right. At some point we’re going to get to the issue of requesting a four

- month adjustment or credit for time served for possession of methamphetamine, indicating an argument that his quest for money, production of counterfeit currency, Case: 20-30492 Document: 00516039418 Page: 3 Date Filed: 10/01/2021No. 20

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4 and the presentation of counterfeit currency to the various victims identified, were all connected to his quest for meth. In this particular instance, I am going to pretermit a full discussion on this and will ad dress that in your closing remarks.
And of course the Bureau of Prisons determines credit for time served, not the Court. That has been made cr y stal clear by the general counsel for the Bureau of Prisons and the Supreme Court.
The c ourt later discuss ed the relevance of the pending Jennings charge , expressing uncertainty that the Jennings charge w as relevant conduct
to the counterfeit

- money charge:
In this particular instance, I note that you have state charges that are pending. Your attorney actually tries to relate the counterfeiting to the meth addiction or to the gaming addiction. You are not charged with gaming addiction here or a gaming viola tion. The plea was to Count 5, and I can’t tell whether the state charges are truly related or only partially related to what we’re dealing with here. Under those circumstances, I’m going to allow this sentence to run concurrent with any state sentence that may be imposed, if the state sentence determines that your state charges are related to this federal crime that you pled guilty to today. Young himself then ask ed about the significance of a potential dismissal of the pending Jennings charge , asking , “ What if that state charge is dismissed altogether because I know it will ?” The c ourt responded:

If that [ i.e. , the Jennings] state charge is dismissed altogether, then this is the only sentence that will be impose d , and it will be up to the Bureau of P risons to determine credit for time served under the state charges with those charges dismissed. I can’t take a position on that one way or the other. Though I do note that the state charges that were about, I believe, four months, give or take, of clai med credit for time Case: 20-30492 Document: 00516039418 Page: 4 Date Filed: 10/01/2021No. 20

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5 served. I have no problem with the Bureau of Prisons should they wish to credit him if those charges are dismissed, but I can’t put that in the judgment. Okay? Young attempted to clarify for the judge that the four months was
unrelat ed to the Jennings charge. He explained that he had already pled guilty to “the four

- month sentence,” i.e. , the Lafayette conviction, and that it was “the 31st Judicial District,” i.e. , the Jennings charge to which he was
then referring. Young told the c ourt that the Jennings case was “still open” because his codefendant was “taking that charge” but that she had not “had a chance to get to court to do it.” Young added that his lawyer in Jennings told him that as soon as Young’s codefendant did that, “the charges are dropped on me.” The c ourt correctly responded that it had no jurisdiction over credit for a sentence that had yet to be imposed : And I have no jurisdiction over what the state judge imposes in terms of a sentence. If there is a sentence that ’s actually impose d , it is that judge that will determine with some degree of finality which sentence is served first. I have placed on the

reco r d that it’s my desire that the federal sentence be served concurrent with any sentence that the state imposes, and I hope that that remains, but that’s a problem between state and f

ederal courts, and I just placed that in the record. Young then asked if any of his time in custody since June 12, 2019,
would be factored into his federal sentence. This question was admittedly unclear as to whether it pertain ed to the Lafayette conviction or the Jennings charge. The court’s response does not make clear whether it understood that Young was inquiring about his state sentence that had already been served:

“ That I do not know. I can only tell you that the Bureau of Prisons determines credit for time served, Mr. Young.

. . . [B] ut I have no jurisdiction to determine whether that sentence or not will be, quote, credit for time served, end quote, for y our federal sentence. ” The court then noted that it Case: 20-30492 Document: 00516039418 Page: 5 Date Filed: 10/01/2021No. 20

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6 had “ ordered that this federal sentence b e

. . . run concurrently with the state sentence. What the state decides to do, what the Bureau of Prisons decides to do is up to them, not me. ”

Because of the confusion regarding whether the court’s

no

- jurisdiction response pertained to the Lafayette conviction or the pending Jennings charge, d efense counsel sought to clarify with the court : “ Your Honor, I do have one question. The [c] ourt is denying the reque st for the
four

- month adjustment; is that correct? ” The court responded:
Technically, yes. That’s up to the Bureau of Prisons because the Court considers that request to be allowing the Court to give credit for time served. I can’t do that. I can run t he sentence concurrent provided that state court in its final disposition decides to agree with that. Otherwise the rules state that the state sentence is served first before the federal sentence applies. The Bureau of Prisons will have my judgment that indicates the federal sentence should be run concurrent. Credit for time served is determined purely by the Bureau of Prisons. Defense counsel then clarified that his question was about the Lafayette conviction, not the pending Jennings charge :

What I’ d like to raise, Your Honor, is that so the request fo r the four months is s eparate from the request for the

— the four

month sentence has already been imposed . It’s my understanding under 5G1.3(b) the Court could impose a 41

- month sentence and then ad j

us t the sentence downward by four months to give him credit for those four months since that sentence has already been imposed and served. Still, even after the clarification from defense counsel, the court made the same statement regarding the BOP’s authori ty over the question : In this particular instance, I’m denying that because that will be up to the Bureau of Prisons to determine how that is to be applied Case: 20-30492 Document: 00516039418 Page: 6 Date Filed: 10/01/2021No. 20

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7 to this federal sentence because it falls under the heading of credit for time served. Whether thos e charges are related or not I can’t tell. Again, I reiterate, it’s a Bureau of Prisons problem, not mine. Clear? Defense counsel asked the court to note his objection.
On appeal, Young again contends that the district court should have
considered his four months of imprisonment in state custody pursuant to the Lafayette conviction when sentencing him for his federal conviction. He

argues that the district court misunderstood its authority to adjust or downward depart for the four months that Young had already served in state custody and misconstrued his request as one for credit for time served.

DISCUSSION

Because we conclude that Young preserved the issue of a four

- month downward departure, we interpret the G uide lines de novo and the factual
f

indings for clear error. 1 See United States v. Valdez , 726 F.3d 684, 692 (5th

1 In his sentencing memorandum, Young requested a “downward variant sentence” for the four months based on the Lafayette conviction that Young “will have served . . . in custody” “[w]hen this Court imposes the judgment in this case.” At sentencing as well, defense counsel objected on the record to a failure to “adjust the sentence downward to give him credit for those four months since that sentence has already been imposed and served.” Young cited U.S.S.G. § 5G1.3(b)(1), which requires an adjustment based on undischarged terms of imprisonment. Importantly, the comments to Section 5G1.3 cross

- reference Section 5K2.23, which allows a downward departure based

on a discharged term of imprisonment when Section 5G1.3(b) would otherwise be satisfied. The Govern ment argues that Young’s reference only to Section 5G1.3(B)(1) is fatal to his preservation of the issue because Young asserted that the Lafayette conviction sentence was discharged at the time of his federal sentencing

. Young concedes, “It is unclear f ro m the record whether Young had discharged the four

- month sentence by the time he was sentenced in federal court.” Either way, Young sufficiently preserved the issue that the court had authority to take the Lafayette conviction into account when sentencing

. See United States v. Peterson , 977 F.3d 381, 393 (5th Cir. 2020) (holding that failure to cite a Case: 20-30492 Document: 00516039418 Page: 7 Date Filed: 10/01/2021No. 20

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8 Cir. 2013); **Fed R. Crim. P.** 51(a)

. “ A factual finding is not clearly erroneous if it is plausible in light of the record as a whole, ” and this court

“ will find clear error onl y if a review of the record results in a definite and
firm conviction that a mistake has been committed. ” United States v. Zuniga , 720 F.3d 587, 590 (5th Cir. 2013 ) (quotation marks omitted). Even if we find procedural error, we may still affirm if the e rror is “harmless

— that is, if
‘the error did not affect the district court’s selection of the sentence imposed.’” United States v. Robinson , 741 F.3d 588, 601 (5th Cir. 2014) (quoting United States v. Delgado

- Martinez , 564 F.3d 750, 753 (5th Cir. 2009) ). The Government bears the burden to demonstrate that any error was
harmless. Id.

It is unclear from the record whether at the time of the federal sentencing, Young’s four

- month Lafayette sentence had been discharged. 2 The discharge question d etermines w hich of Section 5G1.3(b) (for undischarged sentences) or 5K2.23 (for discharged sentences) applies. Which section applies is also relevant to our jurisdiction. Section 5G1.3(b) provides a sentence adjustment and must be consulted by the distri ct court in calculating the guidelines range. If Young’s sentence was undischarged, our jurisdiction is unquestionable. On the other hand, Section 5K2.23 permits a court to depart downward, which is discretionary. This court does not have

specific guidelines provision did not waive the objection when the objection was “sufficiently specific to alert the district court to the nature of the all eged error and to provide an opportunity for correction” ( quotation marks and citation omitted) ). This is especially true given Section 5G1.3(b)’s cross

- reference to Section 5K2.23.

2 Young concedes that the record was unclear at sentencing as to wheth er the Lafayette sentence was discharged

. T he Government understood Young’s argument to be that the sentence was discharged, but it still argued that “the defendant did not establish that the state offense was discharged.” Case: 20-30492 Document: 00516039418 Page: 8 Date Filed: 10/01/2021No. 20

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9 jurisdiction “ to review the district court’s refusal to depart downward,
unless the district court’s refusal was based on a mistaken belief that it lacked the power to depart downward,” and such refusal violates the law “only if the court mistakenly assume[d] that it la ck[ed] the authority to depart.” United States v. Cooper , 274 F.3d 230, 248 (5th Cir. 2001) (citation omitted)

. If Young’s Lafayette sentence was discharged, then a request for the district court to consider it would be a request for a downward departur e. Because w e have jurisdiction to review a district court’s refusal to downward depart only if the district court mistaken ly believed it lacked the authority to downwardly depart , we must fi r st assure ourselves of our jurisdiction.

I. Was the district court’s refusal to consider the four

- month imprisonment period based on a misunderstanding of its authority to do so? The Government argues that the district court did not misunderstand its authority , as “ t he sentencing transcript indicates that the court’s reference to credit for time served and concurrent sentences applied to a pending state charge not to the four

- month sentence imposed earlier.” This interpretation of the sentencing transcript ignores de fense counsel’s attempt to clarify that the court was “denying the request for the four

- month adjustment,” which “h as already been imposed and served , ” i.e. , not pending. D efense counsel explicitly referenced U.S.S.G. § 5G1. 3 (b). The court responded to c ounsel’s clarification question, “I’m denying that because that will be up to the Bureau of Prisons to determine how that is to be applied to this federal sentence . . . . Again, I reiterate, it’s a Bureau of Prisons problem, not mine.”

It is correct tha t awarding credit for time served falls to the discretion
of the Bureau of Prisons (“BOP”) under 18 U.S.C. § 3585, but the court
fail ed to recognize its authority to adjust the sentence or downward depart , which was the actual request before it. Young did not ask for credit for time Case: 20-30492 Document: 00516039418 Page: 9 Date Filed: 10/01/2021No. 20

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10 served, rather he asked for either an “ adjustment ” or “downward variant
sentence.”

The Sentencing Guidelines provide that not all reductions in sentence
based on time served are left to the discretion of the BOP

. One s ectio n provides that when
a term of imprisonment resulted from another offense that is relevant conduct to the instance offense . . . the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.

U.S.S.G. § 5G1.3(b), (b)(1). Importantly, the comments to Section 5G1.3

cross

- reference Section 5K2.23, which allows a downward departure based on a discharged term of imprisonment when Section 5G1.3(b) would
otherwise be satisfied. § 5G1.3(b) cmt. n.5.

The district court refused to resolve wheth er the requirements of these sections of the Guidelines were met, insisting repeatedly that “the Bureau of Prisons determines credit for time served, not the Court.” These provisions expressly apply when the imprisonment period will not be credited by the BOP, such as when the period of imprisonment has been credited to a sentence already. See 18 U.S.C. § 3585 (“ A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . . that has not been credited against another sentence.”).
The Government’s interpretation of the record that the district court was referring only to a hypothetical sentence from the pending Jennings charge is contrary to the re cord. We interpret t he record as supporting that the district court believed it lacked authority to consider the four months of imprisonment for the federal sentence. Case: 20-30492 Document: 00516039418 Page: 10 Date Filed: 10/01/2021No. 20

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11 Thus , even if Young’s state sentence was not discharged and the
district court’s refu sal to consider the four months imprisonment was a refusal to downward depart, we have jurisdiction because the district court
misunderstood its authority to consider the four

- month period o f imprisonment

.
II. Applicability of Sections 5G1.3(b) or 5K2.2 3 to Young.

We turn now to the merits. Sections 5G1.3(b) and 5K2.23 both require
that for the district court to be able to consider a collateral sentence, the BOP
will not award credit for time served for that sentence and that collateral
offense must be relevant conduct to the instant offense. Young contends that
the BOP would not award credit for the four months served because the requirement under 18 U.S.C. § 3585 that the “term of imprisonment . . . has not been credited against anothe r sentence” is not met for the four months. Specifically, Young asserts that “he had been in continuous custody since [the Jennings arrest on] June 12, 2019” until the date of his federal sentencing

— August 3, 2020. Thus, he spen t more than 13 months in custody , and on December 2, 2019, the federal district court ordered the Louisiana jail that

was holding Young to deliver him to federal custody

. His first appearance in federal court was December 12, 2019, and the Jennings charge was dormant during the pendency of his federal case.
Young was sentenced to four months imprisonment for the Lafayette conviction, to which he pled guilty on August 15, 2019. Four of the 13 months, then, are credited to the Lafayette sentence and ineligible for BOP
credit

. See 18 U.S.C. § 3585

. A helpful decisio n from another circuit involved a district court’s adjustment of a federal sentence under Section 5G1.3(b) based on the 18 months the defendant served in state prison for a
related state sentence for drug and counter feit convictions

. United States v.
Rivers , 329 F.3d 119, 121 (2d Cir. 2003). As in this case, th e government Case: 20-30492 Document: 00516039418 Page: 11 Date Filed: 10/01/2021No. 20

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12 argued that the district court’s assumption that the BOP would not credit the defendant for the time already served in state prison before the fe deral sentence was “mere speculation.” Id. at 121 n.1. The Second Circuit correctly rejected that argument, noting that the defendant could “not be credited by the BOP for the time served under the state sentence because that time has already been ‘credi ted against another sentence ’

— specifically, the state drug and counterfeit sentences. ” Id. (quoting 18 U.S.C. § 3585(b)).

It is any remaining time in state custody , which at Young’ s federal sentencing had not yet been credited to any sentence, that is too “speculative” to assume cannot be credited by the BOP. See United States v. Aparicio , 963 F.3d 470, 47 8 (5th Cir. 2020). In Aparicio , this court affirmed
the district court’s dec ision not to adjust the defendant’s sentence based on time already spent in state custody for a related state offense. Id. at 476. Importantly, the state charges remained pending during federal sentencing

. Id. The defendant asked the district court to adjust his sentence under
Section 5G1. 3 (b) for the amount of time already spent in custody because that time would likely be credited to his state sentence when it was imposed and
thus , he argued, Section 5G1.3(b) was met. Id. This court disagreed, findi ng the defendant’s argument “based on his premature and speculative assertion that he will not receive credit for his detention prior to the imposition of his
federal sentence” for the state sentence not yet imposed

. Id. at 478. Thus , it was “not yet kno wn how the BOP [would ] calculate [the defendant’s]
sentence and to what extent he [ would ] receive credit for time served.” Id.

The Government’s reliance on Aparicio , as it relates to the four months imprisonment already imposed and served, is misplaced . It is not speculative that four of the months served is credited to the four

- month Lafayette sentence

. Aparicio clarifies that the remaining months in custody, which cannot yet be credited to the pending Jennings charge, cannot be the Case: 20-30492 Document: 00516039418 Page: 12 Date Filed: 10/01/2021No. 20

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13 basis o f a Section 5G1.3(b) adjustment. Id. at 478. That is not what Young
asks.
The remaining question then, is whether the four months imprisonment for the state methamphetamine co n viction “resulted from
another offense that is relevant conduct to the inst ant offense , ” i.e. , the
counterfeit

- money offense. See U.S.S.G. § § 5G1.3(b) , 5K2.23. Young argued to the district court that the “drug offense is a part of the [counterfeit

money] offense conduct because he was creating the counterfeit bills in order

to purchase the methamphetamine in question.”
The district court made no factual findings as to the relatedness of the offense, noting instead, “ Whether those charges are related or not I can’t
tell .” Because we have no factual findings before us to revie w for clear error, we remand to the district court to determine this question. The district court will also need to determine whether Young’s Lafayette sentence is discharged, as that will direct whether Section 5G1.3(b) or 5K2.23 applies.

III. Harmles sness The Government asserts that any error was harmless because the record was not clear as to whether the Lafayette conviction was discharged
and that conviction was not relevant conduct to the instant offense. It offers
no evidence that the court woul d have imposed the same sentence had it understood its authority to consider the four months in state custody. See
Robinson , 741 F.3d at 601

– 02 . To the contrary, the district court repeatedly stated sentiments such as, “ I have placed on the record that it’s my desire that the federal sentence be served concurrent with any sentence that the state imposes, and I hope that that remains.” Again, though, this seemed to
be a reference to the pending Jennings charge.

As to th e question of whether the Lafayette sentence was discharged, we do not find that it is particularly relevant to our inquiry. The discharge Case: 20-30492 Document: 00516039418 Page: 13 Date Filed: 10/01/2021No. 20

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14 question determines which section of the G uidelines applies and how much discretion the district court has when appl ying the section . It does not mean the district court lacked authority to consider the four

- month period in custody. We agree with Young that the discharge question answers “under which [section] the district court proceeds on the request, not eligibilit y.”
The Government also argues in the alternative that the drug

possession conviction is not relevant conduct to the counterfeit

- money offense. “The district court’s determination of what constitutes relevant conduct for sentencing purposes is a factual finding.” United States v. Nevels , 160 F.3d 226 , 229 (5th Cir. 1998). Again, the district court made no finding on whether the Lafayette convict ion conduct was relevant conduct for his
federal conviction. Young presented argument to the district court and here
that the Lafayette conviction is relevant conduct to the instant offense. Without such factual findings, we are not persuaded that any er ror in failing
to consider the four

- month sentence was harmless.
Because the district court did not consider Sections 5G1.3(b) or 5K2.23 and apparently misunderstood its authority to do so, we **VACATE** Young’s sentence and **REMAND** to the district court for c onsideration of
those sections and the factual determinations relevant to them. Case: 20-30492 Document: 00516039418 Page: 14 Date Filed: 10/01/2021