* The case is unanimously ordered submitted withoutoral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 30 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANTONIO FLOYD, Defendant - Appellant. No. 03-3061 (No. 02-CR-40112-JAR) (D. Kansas)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges.
Antonio Floyd pled guilty in federal court to one c ount of possession with intent to distribute crack cocaine. He appeals the district court’s order that the federal sentence for possession of cocaine run cons ecutively to an unimposed, future state sentence. Exercising jurisdiction und er 28 U.S.C. § 1291, we affirm.-2-

Following the federal indictment of Floyd for posse ssion of crack cocaine on September 17, 2002, he was released on pre-trial supervision. Six weeks later, Floyd allegedly shot Louise Brockman, the woman who se police report led to his indictment for drug possession. Based on the alleg ed shooting, the state of Kansas charged Floyd in the Douglas County DistrictCourt with, among other things, attempted murder. Floyd ultimately pled guilty to possession of cocai ne in federal court, and the district court enhanced his sentence two levels based on the presentence report’s factual finding that Floyd had obstructed justice by shooting and intimidating the government’s key witness. Specifi cally, the presentence report found that he had “willfully obstructed . . . the a dministration of justice during the course of the investigation, prosecution, or senten cing of the instant offense of conviction” under U.S.S.G. § 3C1.1. On that basis, the federal district court sentenced Floyd to 210 months in prison and orderedthat the federal sentence run consecutively to any undischarged sentence which mi ght be imposed by the Douglas County District Court in Lawrence, Kansas. Floyd appeals the imposition of the federal sentenc e as consecutive, contending that the district court erred because: (1) the state sentence did not exist at the time of the order, and therefore conse cutive sentencing was improper; and (2) the federal enhancement fully accounted forthe conduct involved in the1 18 U.S.C. § 3584(a) states:

If multiple terms of imprisonment are imposed on a defendant at the same time, or . . . on a defendant who is already s ubject to an undischarged term of imprisonment, the terms may ru n concurrently or consecutively, except that the terms may not run consecutively for an attempt and for another offense that was the sol e objective of the attempt. Multiple terms of imprisonment imposed atthe same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently. -3- pending state trial, thus requiring that the senten ce run concurrently under U.S.S.G. § 5G1.3(b). In the absence of a contempor aneous objection, we review the district court’s sentencing decision for plain error. United States v. Tisdale , 248 F.3d 964, 975 (10th Cir. 2001). Floyd argues, as an initial matter, that the federa l district court’s decision to sentence him consecutively to an unimposed, futu re state sentence was improper. As he concedes, however, United States v . Williams , 46 F.3d 57 (10th Cir. 1995) squarely forecloses this argument. In W illiams , as here, the defendant argued that the district court erred by ordering th at a federal sentence run consecutively to an unimposed, future state sentenc e. Disagreeing with the defendant’s interpretation of 18 U.S.C. § 3584 (a), 1 we held in Williams that “no language in section 3584(a) prohibit[s] a district court from ordering that a federal sentence be served consecutively to a state sentence that has not yet been-4-

imposed.” Williams , 46 F.3d at 59. We conclude here that the distric t court correctly followed the binding precedent of William s . Floyd contends, in the alternative, that U.S.S.G. § 5G1.3(b) requires that the sentences run concurrently rather than consecut ively because the district court’s decision to enhance his federal sentence fo r obstruction of justice was predicated on the same conduct as the contemplated but unimposed, future state sentence. Because we do not agree that the enhance ment fully took the state charges into account as described by U.S.S.G. § 5G1 .3(b), we disagree. U.S.S.G. § 5G1.3(b) provides that “[i]f . . . the u ndischarged term of imprisonment resulted from offense(s) that have bee n fully taken into account in the determination of the offense level for the inst ant offense, the sentence for the instant offense shall be imposed to run concurrentl y.” In the instant case, this guideline would require a concurrent sentence if th e federal court’s enhancement of Floyd’s sentence for obstruction of justice had fully accounted for the impending state prosecution for attempted murder. Here the federal district court enhanced Floyd’s se ntence because by shooting the government’s key witness, he interfere d with the federal authorities’ prosecution of him for drug possession and thus obs tructed justice under § 3C1.1. The conduct contemplated by the state court in its impending prosecution of Floyd, on the other hand, was Floyd’s alleged attempted murder of Brockton.2The commentary following U.S.S.G. § 5G1.3(b) provi des the following

example of when the guideline would require concurr ent sentencing: a defendant is convicted of a federal offense charging the sale of thirty grams of cocaine, and under § 1B1.3, his sentence is enhanced for the sal e of an additional fifteen (continued...) -5- Courts have been reluctant to require concurrent se ntencing in similar
contexts. See United States v. Hawley , 93 F.3d 682, 688 (10th Cir. 1996) (stating that a two-level enhancement for failure to appear is not punishment for purposes of double jeopardy); United States v. Grisanti , 116 F.3d 984, 987–88 (2d Cir. 1997) (concluding that an enhancement for obstructi on of justice under U.S.S.G. § 3C1.1 does not constitute punishment for the cond uct involved); United States
v. Ross , 77 F.3d 1525, 1550 (7th Cir. 1996) (holding the s ame); United States v. Bellrichard , 62 F.3d 1046, 1051–52 (8th Cir. 1995) (holding th e same); United States v. Jernigan , 60 F.3d 562, 564 (9th Cir. 1995) (holding the sam e). It is not the purpose of U.S.S.G. § 5G1.3(b) to pre clude a single act from constituting an offense which is both sufficient to enhance a federal sentence and to justify a wholly separate state criminal prosecution. Rather, the provision requires concurrent sentencing only when the conduc t contemplated by the impending state prosecution has been “fully taken i nto account.” For example, § 5G1.3(b) would require a federal enhancement for obstruction of justice to run concurrently to any sentence resulting from a pendi ng state prosecution for obstruction of justice. 22 (...continued)

grams. However, defendant had already been convict ed and sentenced for the sale of the additional fifteen grams in state court. An enhancement for the sale of the additional cocaine, in this instance, should be imp osed to run concurrently to the state sentence. -6- As we have concluded previously, the province of th e guideline is to “ensure that no defendant is punished twice for the same crime.” United States v. Hurlich , 293 F.3d 1223, 1229 (10th Cir. 2002) (quotation o mitted). While obstruction of justice and attempted murder might, as here, sometimes result from the same course of conduct, by no stretch of the im agination are they the same crime. Thus, we conclude that the pending state pr osecution for attempted murder was not “fully taken into account” under U.S.S.G. § 5G1.3(b) by the district court’s enhancement of Floyd’s federal sentence forobstruction of justice; consequently, the sentencing guidelines do not requ ire a concurrent sentence in this case. Finding no plain error in the decision to sentence consecutively rather than concurrently, we AFFIRM

. The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge