### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JULY 25, 2003 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-16671 Non-Argument Calendar

________________________ D.C. Docket No. 02-00072-C R-CG UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus PHILLIP WAYNE MCDANIEL, JR., Defendant-Appe llant.

__________________________ Appeal from t

he United States D

istrict Court for t

he Sout hern D istri ct of A labama

_________________________ (July 25, 2003) Before CARNE S, BARKETT and WILSON , Circuit Judges. PER CURIAM: Phillip Wayne McD aniel, Jr., app eals his 33 month sentence for posses sion of
a firearm by

a convicted felon,

in vio lation o f 18 U.S.C. § 92 2(g)(1). On appe

al,2

McDaniel argues that the dist rict court erred by ruling that it did not have the authority to order McDaniel ’s sentence to run concurrently w

ith an unimposed sentence on pending state char ges. McDaniel m

aintains that if, a

t the time of his federal sentencing, he had already been sentenced in

state court, his federal sentence would fall under the provi sions of U.S.S.G. § 5G1.3 (b) or (c), which would ma ndate
or at least allow for

concurrent sentenc

ing. He states that the language of 18 U.S.C. § 3584, which governs the imposition of multiple sentences, indicates that a district court may order

terms of im

priso nm ent imposed at dif ferent times to run
concur rently. He f

urther contends that

this Court’s decis

ion in United States v. Ballard , 6 F.3d 1502 (11th Cir. 199 3), “specifi cally noted that both [1 8 U.S.C. § 3584] and the [G] uidelines were sil ent . . . on this sit

utation ” and t

hat Ballard “directed that the lower

courts consider the policy of § 5G1.3 as if the state sentence had been imposed and then consider the factors of 18 U.S.C. § 3553 in ord er to determine if a consecutiv e or concurrent senten ce is warranted.” The issue presented, w

hether a district c ourt is authorized to make a f ederal sentence concurrent to a sta te sentence not y

et imposed for p ending state charges, is
one of first

impression. It

raises a pure questio n of law that we review de novo
. See UnitedStates v. Barbour , 70 F.3d 580, 586 (11 th Cir. 1995) (art iculating tha t pure questions of law are

subject to de novo review).3

Upon careful review

of the record and our

precedent, and upon

consideration of the parties’ br

iefs, we find reversible error. Our opinion in United States v. Andrews , 330 F.3d 1305 (11th Cir. 2003), clarifies that under U ni ted States v. Ballard , 6 F.3d

1502 (11th Cir. 1993) , a district court does have the authorit y to make
a federal sentence concurre nt to a state sentenc e not yet im posed for pending sta

t e charges, (“ Ballard

clearly concludes that a district court nee d not concern itself with whether a state sentence ha

s already been imposed wh

en determining w

hether to make the federal sente

nce con se cutive or concurrent with the state sentence.” Id. (citing Ballard , 6 F.3d at 1504-10)). Because the district court mistakenly believed it lacked the authorit y to impose a con current se ntence, we v acate McDani el’s sentence and rem

and for resentenci

ng. VACATED AND REMANDED.