### The Honorab le Harold D. Vietor, United States District Judge 1 

### for the Southern District of Iowa. ___________ No. 95-3997

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Anna Marie Dungy, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 10, 1996 Filed: April 23, 1996

___________ Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

___________
PER CURIAM. Anna Marie Dungy appeals the sentence imposed by the district court 1 following her guilty plea to conspiring to distribute cocaine base, i n violationof 21 U.S.C. §§ 841(a)(1) and 846. For reversal, Dungy argues the district court erred by concluding it lacked the authority to impose her federal sentence concurrently to the undischarged state sentences she was serving. We affirm.
Dungy committed the instant offense while on state probation fo r drug and firearm offenses. At the time of Dungy's federal sentencing hearing, her state probation h ad been revoked and she was in state custody serving her sentences. At sentencing, Dungy

### Subsection (a) and (b) do not apply in this case. Se e 2 

### U.S. S.G. § 5G1.3(a) (if instant offense was committed whil e defendant was serving term of imprisonment, or after sentenc ing but before commencing such term of imprisonment, sentence for instant offense must be imposed consecutively to undischarged term o f impri sonment); U.S.S.G. § 5G1.3(b) (if undischarged term o f impris onment resulted from offense(s) that have been fully take n into account in determination of offense level for instant o ffense, sentence for instant offense shall be imposed to run concurrently to undischarged term of imprisonment). -2- argu ed that U.S.S.G. § 5G1.3(c), p.s. (1995), and application note 6 (for merlynote 4) vested the court with the discretion to impose he r federal sentence conc urrently to the undischarged state sentences she was serving , because the Commission used the word "should," as opposed t o "shall." Relying on United States v. Gondek , 65 F.3d 1, 2-3 (1st Cir
. 1995) (holding application note 4 requires mandatory consecutiv e sentencing) and United States v. Bernard , 48 F.3 d 427, 432 (9th Cir. 1995) (same), the district court concluded it had no discretion to impose th e federal sentence to run concurrently to Dungy's undischarged stat e senten ces, and sentenced Dungy to 84 months imprisonment, to ru n con secutivelyto her undischarged state sentences, and four year s supervised release.
We review de novo the district court 's application of section 5G1.3. United States v. Brewer , 23 F.3d 1317, 1320 (8th Cir. 1994). Sentencing courts mu st follow the procedures set out in section 5G1.3 and impose a sentence accordingly. United States v. Gullicks on , 981 F.2d 344, 349 (8th Cir. 1992). As relev ant here, section 5G1.3(c) provides that, if neither subsection (a) nor (b) applies, "th e sentence for the instant offense may 2 be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonabl e punishment for the in stant offense " (emphasis added). Application note 6 (formerly note 4) sta tes: "If the defendant was on . . . state probation

. . . at the time of the instant offense, and had such probation . .
. revoked, the sentence for the instant offense

### -3-

sho uld be imposed to run consecutively to the term imposed for th e violation of probation . . . in order to provide an incremental penalty fo r the violation of probation . . . See § 7B1.3" (emphasis added).
We agree with the Gondekcourt's rea soning that, notwithstanding the Commission's use of the word "should" rather than "shall," the "greate r weight of the evidence suggests" application note 4 (now note 6) i s mandatory
. Gondek , 65 F.3d at 2-3. As the Gondek court noted , "applicationnote 4 represents the Commission's determination as to what is `reasonable incremental punishment'" for the conduct described in the note. Id. at 3. The Gondek court also noted that the situations covered by the note are similar to the situations covere d in subsection (a), which mandates consecutive sentencing, and that the application note references U.S.S.G. § 7B1.3(f), p.s., which requires consec utive sentencing after the revocation of federal probation or supervised re lease. Gondek , 65 F.3d at 2. Finally, the Bernard court reached the same conclusion about th e applicationnote, see Bernard , 48 F.3d at 432, and in United States v
. Glasener , 981 F.2d 973, 975 (8th Cir. 1992), we reached a similar result for sentences imposed before the enactment of ap plication note 4, based in part on section 7B1.3(f). Accordingly, we conclude the district cour t correc tlydetermined it lacked the discretion to impose Dungy's federa l sentence concurrently to her undischarged state sentences.
The judgment is affirmed.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.