1

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3566

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Bruce Wayne Hurley, *

*

Appellant. *

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Submitted: October 12, 2005

Filed: March 13, 2006

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Before BYE, BEAM, and SMITH, Circuit Judges.

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BYE, Circuit Judge.

Bruce Wayne Hurley pleaded guilty to conspiracy to distribute

methamphetamine in violation of 18 U.S.C. § 371 and 21 U.S.C. § 841(a)(1), and use

of a communication facility in the commission of a felony in violation of 21 U.S.C.

§ 843(b). The district court1

 sentenced him to ninety months of imprisonment. Hurley

appeals his sentence contending the district court misapplied United States Sentencing

Guideline (U.S.S.G.) § 5G1.3 by failing to give him credit for time spent in custody

on a related state sentence. We affirm.
2

Hurley's appellate counsel was unable to explain how Hurley's trial counsel

arrived at this figure, but we assume the thirty-two month figure included twelve

months of actual jail time Hurley had served on the related state charge.

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I

On back-to-back days in January 2002 (January 23 and 24), Hurley sold

methamphetamine to a confidential informant working with an Arkansas state drug

task force. The State of Arkansas charged Hurley with delivery of a controlled

substance based on the January 23 transaction. He pleaded guilty to that charge and

received a sentence of forty-eight months; thirty-six months were suspended to run

consecutive to a state parole violation.

The United States also brought charges against Hurley for illegal conduct which

included the same two drug transactions. Hurley entered into a plea agreement with

the government stipulating to a drug amount which excluded the drugs involved on

January 23. Under the plea agreement, the parties contemplated Hurley would receive

a sentence of 108 months.

At the time of sentencing, Hurley requested the district court give him credit for

thirty-two months2

 served on the related state charge pursuant to § 5G1.3. Concluding

§ 5G1.3 did not apply, the district court gave Hurley no credit for time served on the

state sentence, but also did not impose the 108 month sentence contemplated by the

plea agreement. Instead, the district court imposed a sentence of sixty months on the

drug conspiracy count (which carried a five-year maximum) and a consecutive thirtymonth sentence on the second count to accomplish a total sentence of ninety months,

which fell within the advisory guideline range of 77- 96 months as calculated by the

district court. Hurley filed a timely appeal challenging only the district court's failure

to give him credit for time served on the related state charge pursuant to § 5G1.3.
3

Since we conclude § 5G1.3 does not apply in any event, we need not decide

whether Hurley was under an "undischarged term of imprisonment" after he had

already served the twelve months of actual jail time on the forty-eight month state

sentence. Cf. French v. United States, 46 F.3d 710, 717 (8th Cir. 1995) (interpreting

South Dakota law and concluding a person released on parole is considered subject

to an undischarged term of imprisonment for purposes of § 5G1.3).

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II

Reviewing the district court's interpretation and application of § 5G1.3 de novo,

United States v. Salter, 418 F.3d 860, 862 (8th Cir. 2005), we conclude § 5G1.3 does

not apply to Hurley's situation. Section 5G1.3 requires a federal sentence be run

concurrent to an undischarged term of imprisonment3

 and the defendant be given

credit for any time already served on an undischarged term of imprisonment only

when two conditions are met: 1) the "term of imprisonment resulted from another

offense that is relevant conduct to the instant offense of conviction under the

[Guidelines' Relevant Conduct provisions;]" and 2) that relevant conduct "was the

basis for an increase in the offense level for the instant offense under Chapter Two

(Offense Conduct) or Chapter Three (Adjustments)." U.S.S.G. § 5G1.3(b)(1) & (2).

The second condition was not present here. Hurley's conduct on January 23

was not the basis for an increase in his offense level because the amount of drugs to

which he stipulated in his plea agreement did not include the amount involved in the

January 23 transaction. The mere fact the federal conspiracy charge encompassed a

time period during which the state offense occurred had no effect on Hurley's offense

level under the guidelines, a prerequisite to triggering the credit-for-time-served

provisions of § 5G1.3(b).

Hurley further contends the district failed to recognize its authority to reduce

the sentence under § 5G1.3(c), if not § 5G1.3(b). This argument is a non-starter

because it has a flawed premise. Subsection (c) does not allow a court to reduce a
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sentence directly, which is what Hurley requested. Subsection (c) only allows a court

to run a sentence "concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment." U.S.S.G. § 5G1.3(c). In other words, a

defendant's total punishment may be indirectly reduced if a court runs a federal

sentence concurrent or partially concurrent to a prior undischarged term of

imprisonment. But doing so does not directly reduce the length of the federal

sentence. Hurley wanted the district court to directly reduce the length of his sentence

by giving him credit for time already served on the state offense. There is no

provision under § 5G1.3(c) for granting credit for time served.

III

We affirm the judgment of conviction and sentence in all respects. 

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