The Honorable Harold D. Vietor, United States District Judge 1

for the Southern District of Iowa.

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No. 95-3997

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Southern District of Iowa.

Anna Marie Dungy, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: April 10, 1996

 Filed: April 23, 1996

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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Anna Marie Dungy appeals the sentence imposed by the district court1

following her guilty plea to conspiring to distribute cocaine base, in

violation of 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 for drug

and firearm offenses. At the time of Dungy's federal sentencing hearing,

her state probation had been revoked and she was in state custody serving

her sentences. At sentencing, Dungy
 Subsection (a) and (b) do not apply in this case. See

2

U.S.S.G. § 5G1.3(a) (if instant offense was committed while

defendant was serving term of imprisonment, or after sentencing but

before commencing such term of imprisonment, sentence for instant

offense must be imposed consecutively to undischarged term of

imprisonment); U.S.S.G. § 5G1.3(b) (if undischarged term of

imprisonment resulted from offense(s) that have been fully taken

into account in determination of offense level for instant offense,

sentence for instant offense shall be imposed to run concurrently

to undischarged term of imprisonment).

-2-

argued that U.S.S.G. § 5G1.3(c), p.s. (1995), and application note 6

(formerly note 4) vested the court with the discretion to impose her

federal sentence concurrently to the undischarged state sentences she was

serving, because the Commission used the word "should," as opposed to

"shall." Relying on United States v. Gondek, 65 F.3d 1, 2-3 (1st Cir.

1995) (holding application note 4 requires mandatory consecutive

sentencing) and United States v. Bernard, 48 F.3d 427, 432 (9th Cir. 1995)

(same), the district court concluded it had no discretion to impose the

federal sentence to run concurrently to Dungy's undischarged state

sentences, and sentenced Dungy to 84 months imprisonment, to run

consecutively to her undischarged state sentences, and four years

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 must follow the procedures set out in section 5G1.3 and impose a

sentence accordingly. United States v. Gullickson, 981 F.2d 344, 349 (8th

Cir. 1992). As relevant here, section 5G1.3(c) provides that, if neither

subsection (a) nor (b) applies, "the 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 reasonable

punishment for the instant offense" (emphasis added). Application note 6

(formerly note 4) states: "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
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should be imposed to run consecutively to the term imposed for the

violation of probation . . . in order to provide an incremental penalty for

the violation of probation . . . See § 7B1.3" (emphasis added).

We agree with the Gondek court's reasoning that, notwithstanding the

Commission's use of the word "should" rather than "shall," the "greater

weight of the evidence suggests" application note 4 (now note 6) is

mandatory. Gondek, 65 F.3d at 2-3. As the Gondek court noted,

"application note 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 covered in subsection (a), which

mandates consecutive sentencing, and that the application note references

U.S.S.G. § 7B1.3(f), p.s., which requires consecutive sentencing after the

revocation of federal probation or supervised release. Gondek, 65 F.3d at

2. Finally, the Bernard court reached the same conclusion about the

application note, 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 application note 4, based in

part on section 7B1.3(f). Accordingly, we conclude the district court

correctly determined it lacked the discretion to impose Dungy's federal

sentence concurrently to her undischarged state sentences.

The judgment is affirmed.

A true copy.

Attest:

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