* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 12 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BEVERLY S. UNDERWOOD, also known as Beverly Smith,

Defendant-Appellant. No. 99-3346 (D.C. No. 99-CR-40011) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Defendant pleaded guilty to a superceding indictment charging her with being an accessory after the fact to distribution o f cocaine and was sentenced to thirty-seven months’ imprisonment. She appeals hersentence, arguing that the district court should have imposed a sentence that effectively gave her credit for time she served in state custody. We exercise juri sdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. Defendant was arrested by state authorities in Tope ka, Kansas, on April 8, 1998, for possession and distribution of crack coca ine. At the time of her arrest, defendant was on probation following her convictionon a misdemeanor drug charge in Sedgwick County, Kansas. Defendant also had an outstanding arrest warrant for previous violations of her probation. On April 24, 1998, Sedgwick County issued a second arrest warrant for probationviolation based on some of the conduct underlying defendant’s April 8 arrest. On May 5, 1998, the Sedgwick County District Court held a hearing on the two probation violation warrants. Defendant appear ed with her counsel and admitted the violations at issue in the first warra nt, but argued that the court did not have jurisdiction over the violations in the se cond warrant because that warrant was untimely filed. After some discussion, the parties and the court agreed that the prosecutor would proceed only on th e allegations contained in the first warrant. Based on those allegations, which i ncluded defendant’s failure to-3-

report to her probation officer, the state court re voked defendant’s probation and ordered defendant to serve the original sentence, w hich was one year. On February 10, 1999, a federal grand jury issued athree-count indictment against defendant stemming from her April 8, 1998 arrest. On March 25, 1999, a federal detainer was lodged with the Sedgwick County jail, where defendant was serving her state sentence on the probation violati on. After she completed her state sentence, defendant was taken into federal cu stody on April 8. On July 12, 1999, the federal grand jury issued a one-count sup erceding indictment, to which defendant pleaded guilty. Before sentencing, defendant filed a sentencing mem orandum asking the court to give her credit for the time she spent in the Sedgwick County jail on the state sentence, pursuant to U.S.S.G. § 5G1.3(b) or (c). Defendant contended that the purpose of § 5G1.3 was to create a single sente nce that would approximate the total sentence that would have been imposed had all the offenses–both state and federal–been federal offenses and had sentence on a ll the offenses been imposed at the same time. She argued that her federal sent ence should credit her time in state custody because the state court, in imposing a one-year sentence for probation violation, had taken into account some of the same conduct that formed the basis of the federal charges. Defendant also f iled a separate alternative motion for a downward departure seeking credit for her time spent in state-4-

custody. The government opposed defendant’s reques t and, after hearing argument on the matter at sentencing, the district court denied defendant’s request. Defendant now appeals, arguing that the district co urt abused its discretion in not giving her credit for her state sentence, ei ther under the guidelines or as a downward departure. “We review the district court’ s interpretation and application of the Sentencing Guidelines de novo.” United States v. Chavez-Valenzuela , 170 F.3d 1038, 1039 (10th Cir. 1999). We review a district court’s decision to depart from the guidelines unde r a unitary abuse of discretion standard. See Koon v. United States , 518 U.S. 81, 91 (1996). We have no jurisdiction, however, to review a district court’s refusal to depart from the guidelines unless the court refused to depart becau se it thought it had no authority to do so. See United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999). Turning first to the district court’s application o f the guidelines, we conclude the district court properly refused to cre dit defendant with the time served in state custody under U.S.S.G. § 5G1.3. Th is guideline is captioned “Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment.” In subsection (a), the guideline de scribes the circumstances under which the new sentence must be consecutive to the prior undischarged sentence; in subsection (b), it describes the circu mstances under which the new-5-

sentence must be concurrent to the prior undischarg ed sentence; and in subsection (c), it gives discretion to the district court, in circumstances not covered by either (a) or (b), to impose a new sentence that is eitherconsecutive, concurrent, or partially concurrent with the prior undischarged se ntence. U.S.S.G. § 5G1.3 (1998). “In each set of circumstances, however, th e predicate is that the defendant’s prior prison term remains ‘undischarged.’” United States v. Labeille-Soto , 163 F.3d 93, 99 (2d Cir. 1998). Here, the facts are undisputed that defendant was n ot subject to an undischarged term of imprisonment at the time her f ederal sentence was imposed; she had completed service of her state sentence months before. A defendant who is not incarcerated on another sentence at the time he is sentenced for the instant offense is not subject to “an undischarged term of imprisonment” and cannot invoke § 5G1.3. See, e.g. , United States v. Ogg , 992 F.2d 265, 266-67 (10th Cir. 1993) (holding earlier version of § 5G1.3 did not apply to defendant who had already served prior state prison term); Labeille-Soto , 163 F.3d at 99 (holding current version of § 5G1.3 did not apply to defendant who had already served prior state prison term); United States v. Cofske , 157 F.3d 1, 1 (1st Cir. 1998) (holding defendant not entitled under § 5G1.3 to cr edit for discharged state prison term), cert. denied , 119 S. Ct. 1374 (1999); Prewitt v. United States, 83 F.3d 812, 817 (7th Cir. 1996) (holding defendant could not in voke § 5G1.3 because he was-6-

not subject to undischarged term of imprisonment). Defendant’s attempt to construe § 5G1.3 to apply to a prior term of impris onment that has been discharged at the time the current federal sentence is imposed is without merit. Because § 5G1.3 did not apply to defendant, the dis trict court did not err in failing to give defendant credit for her state sent ence under that guideline. We turn, then, to defendant’s request for a downwar d departure. Defendant presented several grounds to the district court to support her request for a downward departure that would effectively give her credit for her state custody. After hearing argument from both parties, the distr ict court judge denied defendant’s request, stating his understanding of h ow a sentence“normally” should be imposed under the circumstances presented

. As we have repeatedly held, we lack jurisdiction to review a district court’s discretionary decision to deny a downward departure. See Fortier , 180 F.3d at 1231. “[U]nless the judge’s language unambiguouslystates that the judge does not believe he has authority to downward depart, we will not review his decision.” United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994). Based upon our review of the sentencing hearing transcript, we con clude that the district court judge’s comments in denying defendant’s request do not constitute an unambiguous statement that he believed he was witho ut authority to depart.-7-

Therefore, we will not review the district court’s decision not to depart from the guidelines.
We AFFIRM.

Entered for the Court

John C. Porfilio Circuit Judge