United States Court of Appeals

for 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 

methamphetamine. 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opinion should not be published and is not precedent except under the limited 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 forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 1, 2021

Lyle W. Cayce

Clerk

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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 this 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 state 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, with 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 the Lafayette conviction and sentenced to four 

months imprisonment for it, and still had the Jennings charge pending. 

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Young filed a sentencing memorandum requesting a “downward 

variant sentence,” arguing that his criminal history was over-represented, he 

had addictions 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 would 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 

counterfeiting 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 sentence 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 four-month adjustment or downward departure. 

The conversation between Young himself and the court centered around the 

pending Jennings charge, and the court’s failure to consider that charge is not 

appealed. Young’s counsel, however, requested the court consider 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 court stated that it understood that Young wanted four 

months off his sentence, but it clarified that there would 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, 

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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 address that in your closing remarks. 

And of course the Bureau of Prisons determines credit for time 

served, not the Court. That has been made crystal clear by the 

general counsel for the Bureau of Prisons and the Supreme 

Court. 

The court later discussed the relevance of the pending Jennings 

charge, expressing uncertainty that the Jennings charge wasrelevant 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 violation. 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 asked 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 court responded:

If that [i.e., the Jennings] state charge is dismissed altogether, 

then this is the only sentence that will be imposed, and it will 

be up to the Bureau of Prisons 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 claimed credit for time 

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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 

unrelated 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 court 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 court 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 

imposed, it is that judge that will determine with some degree

of finality which sentence is served first. 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, but that’s a problem between state and 

federal 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 pertained 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 your federal sentence.” The court then noted that it 

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had “ordered that this federal sentence be . . . 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, defense counsel sought to clarify with the court: “Your 

Honor, I do have one question. The [c]ourt is denying the request 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 the 

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 for

the four months is separate from the request for the — the fourmonth sentence has already been imposed. It’s my understanding 

under 5G1.3(b) the Court could impose a 41-month sentence and 

then adjust 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 authority 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 

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to this federal sentence because it falls under the heading of 

credit for time served. Whether those 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 Guidelines de novo and the factual 

findings 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 Government 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 from 

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 

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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 only 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 error 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 determines which 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 district 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 alleged 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 whether the 

Lafayette sentence was discharged. The 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.” 

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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 lack[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 departure. 

Because we have jurisdiction to review a district court’s refusal to downward 

depart only if the district court mistakenly believed it lacked the authority to 

downwardly depart, we must first 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 “the 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 defense counsel’s attempt 

to clarify that the court was “denying the request for the four-month 

adjustment,” which “has already been imposed and served,” i.e., not 

pending. Defense counsel explicitly referenced U.S.S.G. § 5G1.3(b). The 

court responded to counsel’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 that awarding credit for time served falls to the discretion 

of the Bureau of Prisons (“BOP”) under 18 U.S.C. § 3585, but the court 

failed 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 

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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 section 

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 whether 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 record. We interpret the record as supporting that 

the district court believed it lacked authority to consider the four months of 

imprisonment for the federal sentence. 

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Thus, even if Young’s state sentence was not discharged and the 

district court’s refusal 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 of 

imprisonment. 

II. Applicability of Sections 5G1.3(b) or 5K2.23 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 another 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 spent 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 decision 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 counterfeit convictions. United States v. 

Rivers, 329 F.3d 119, 121 (2d Cir. 2003). As in this case, the government 

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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 federal 

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 ‘credited 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, 478 (5th Cir. 2020). In Aparicio, this court affirmed 

the district court’s decision 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, finding 

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 known 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 

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basis of 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 conviction “resulted from 

another offense that is relevant conduct to the instant 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 [counterfeitmoney] 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 review 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. Harmlessness

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 would 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 the question of whether the Lafayette sentence was discharged, 

we do not find that it is particularly relevant to our inquiry. The discharge 

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question determines which section of the Guidelines applies and how much 

discretion the district court has when applying 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 eligibility.” 

The Government also argues in the alternative that the drugpossession 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 conviction 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 error 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 consideration of 

those sections and the factual determinations relevant to them. 

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