UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4210

WILLIAM G. HARDEN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4211

WILLIAM G. HARDEN,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CR-93-129, CR-97-647)

Submitted: November 24, 1998

Decided: January 14, 1999

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Langdon D. Long, Assistant Federal Public Defender, Columbia,

South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Dean A. Eichelberger, Assistant United States Attorney, Columbia,

South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

William G. Harden appeals the forty-two-month sentence he

received after he entered guilty pleas to a 1993 indictment charging

possession of child pornography, 18 U.S.C.A. § 2252(a)(4) (West

Supp. 1998), and a 1997 indictment charging possession of counterfeit securities, 18 U.S.C. § 513 (1994). He contends that the district

court misapplied USSG § 5G1.31 in imposing a sentence to be served

consecutively to the state sentence he was serving. We affirm.

In 1992, Harden was charged in state court with distribution of

marijuana and contributing to the delinquency of a minor. After his

arrest, Harden's residence, vehicle, and safe deposit box were

searched by state authorities. Polaroid photographs of nude young

men with exposed genitals were seized, as well as illegal prescription

drugs, narcotics and other controlled substances including marijuana.

In March 1993, Harden was sentenced to five years imprisonment for

the marijuana conviction and a concurrent three-year prison term for

contributing to the delinquency of a minor. In April 1993, he pled

guilty to state drug charges and received a concurrent two-year sentence. The same month, a federal grand jury charged Harden with

possession of child pornography. In May 1993, Harden escaped from

state custody.

In February 1997, Harden was arrested on charges of contributing

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1 U.S. Sentencing Guidelines Manual (1992). Harden was sentenced in

March 1998 but the district court applied the 1992 guidelines manual.

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to the delinquency of a minor and possession of marijuana with intent

to distribute. He had counterfeit money orders in his briefcase. In

November 1997, Harden pled guilty in federal court to the 1993

charge of possessing child pornography and to the 1997 charge of

possession of counterfeit money orders.

To calculate Harden's guideline range, the probation officer used

the 1997 guidelines manual and placed each of the counts in a separate group. The child pornography count had a base offense level of

15, see USSG § 2G2.4, increased by two levels to 17 for possession

of more than ten visual depictions involving sexual exploitation of a

minor. See USSG § 2G2.4(b)(2). The counterfeit securities count had

a base offense level of 6, increased to 12 by enhancements for the

amount of loss and more than minimal planning. See USSG § 2F1.1.

The multiple count adjustment increased the offense level to 18. See

USSG § 3D1.4. With a three-level adjustment for acceptance of

responsibility, see USSG § 3E1.1, the final recommended offense

level was 16. Harden had 26 criminal history points, placing him in

criminal history category VI. The recommended guideline range was

46-57 months. The probation officer noted that, because Harden was

subject to an undischarged term of imprisonment, USSG § 5G1.3

applied.

At the sentencing hearing, the district court applied the 1992 guideline manual to avoid an ex post facto problem because the 1992 manual provided a lower base offense level for the child pornography

count (13 rather than 15).2 Application of the 1992 manual lowered

Harden's final offense level to 14, giving him a guideline range of 37-

46 months.

The government argued that the sentence should be consecutive to

Harden's state sentence pursuant to USSG § 5G1.3(a). Subsection (a)

provides: "If the instant offense was committed while the defendant

was serving a term of imprisonment (including work release, furlough, or escape status) . . . the sentence for the instant offense shall

be imposed to run consecutively to the undischarged term of impris-

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2 Guideline section 2G2.4(a) was amended to increase the base offense

level to 15 on November 1, 1996. See USSG App. C, amend. 537.

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onment." Harden's 1997 counterfeiting offense was committed while

he was on escape status.

Harden argued that the court should apply USSG § 5G1.3(c), p.s.,

and impose a sentence that would be partially concurrent to his state

sentence because he was not serving a term of imprisonment when he

committed the 1993 child pornography offense. Subsection (c) provides that, if neither subsection (a) nor subsection (b)3 applies, "the

sentence for the instant offense shall be imposed to run consecutively

to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant

offense."

Without indicating which subsection applied, the district court

imposed a consecutive sentence. On appeal, Harden suggests that the

district court erroneously applied USSG § 5G1.3(a) in imposing a

consecutive sentence. He points out that the court failed to follow the

procedure set out by this court in United States v. Hill, 59 F.3d 500,

502-03 (4th Cir. 1995), for district courts to use in applying USSG

§ 5G1.3(c).

Although the district court did not articulate its reasons for imposing a fully consecutive sentence, we find no error because a consecutive sentence was called for under USSG § 5G1.3(a). Application

Note 1 to the 1992 version of USSG § 5G1.3 directs that the court

should impose a consecutive sentence "where the instant offense (or

any part thereof) was committed while the defendant was serving an

undischarged term of imprisonment." (emphasis added). Here, the

instant offense included both Harden's 1993 child pornography

charge and his 1997 counterfeit money orders charge. Because the

1997 portion of the instant offense was committed while Harden was

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3 Subsection (b) provides that, if subsection (a) does not apply and the

conduct underlying the undischarged term of imprisonment has been

fully taken into account in determining the offense level for the instant

offense, the sentence should be concurrent to the undischarged term of

imprisonment. Subsection (b) does not apply here.

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on escape status, the district court applied the guideline correctly by

imposing a fully consecutive sentence.4 

We therefore affirm the sentence imposed. We grant Harden's

motion for leave to submit a pro se supplemental brief. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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4 The government argues alternatively that the sentence was also correct under USSG § 5G1.3(c). Because we find that USSG § 5G1.3(a)

applied, we need not address this issue.

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