*Pursuant to 5

TH CIR. R. 47.5, the Court has determined that this opinion should not

be published and is not precedent except underthe limited circumstancessetforth in 5

TH

CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30255

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DWAYNE JEFFREY BUTLER,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Louisiana

(97-CR-74-1)

February 4, 1999

Before POLITZ, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

Dwayne Jeffrey Butler appeals the sentence received after a jury found

him guilty of conspiracy to possess with intent to distribute and to distribute

cocaine, and of unlawful use of a communications facility. He contends that the

district court erred in concluding that it lacked authority to impose its sentence

to run concurrently with a not-yet-imposed state sentence following anticipated

revocation of parole.
 

1 United States v. Richardson, 87 F.3d 706 (5th Cir. 1996).

 

2

Id.

 

3

 920 F.2d 1212, 1216 (5th Cir. 1991).

 

4

 U.S.S.G. § 5G1.3(c), p.s.

2

At the first sentencing hearing, Butler requested that his sentence be

imposed to run concurrently with any sentence he might receive in state court

upon his parole revocation. He made the same request at resentencing.

Therefore, we review the district court’s decision not to order a consecutive or

concurrent sentence for an abuse of discretion,1and review de novo whether the

district court properly applied the sentencing guidelines.2

In United States v. Brown,

3 we held that “[w]hether a sentence imposed

should run consecutively or concurrently is committed to the sound discretion

of the district court, subject to consideration of the factors set forth in 18 U.S.C.

§ 3553(a).” The district court, erroneously believing that it lacked authority to

impose a sentence concurrent with the state sentence to be ordered upon

revocation of parole, did not consider the factors detailed in section 3553(a).

The trial court has authority to impose a concurrent sentence in the

circumstances presented by this appeal.4 In so doing, the court should consider

the factors set forth in 18 U.S.C. § 3584 and be aware of: (a) the type and length

of the undischarged sentence; (b) the time served or likely to be served on the

undischarged sentence; (c) whether the undischarged sentence was imposed in

state or federal court, or imposed at a different time before the same or different
 

5

 Section 5G1.3, comment. (n.3).

 

6 United States v. Rogers, 126 F.3d 655 (5th Cir. 1997).

 

7

 18 U.S.C. § 3006A(c); Fifth Circuit Plan, § 3.

3

federal court; and (d) any other relevant circumstance.5

Because we cannot determine from the record whether the district court

would have imposed a concurrent sentence if it had concluded that it had the

authority, Butler’ssentence must be VACATED, and the case REMANDED for

resentencing.6 As to whether a concurrent sentence be imposed we express no

opinion, leaving that decision in the first instance to the trial judge. Butler’s

motion to dismiss his appeal because he is dissatisfied with his appellate counsel

is DENIED.7