In the

United States Court of Appeals

For the Seventh Circuit

No. 98-2345

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS J. ROSS,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, Hammond Division.

No. 2:95 CR 109-01--Rudy Lozano, Judge.

Submitted May 3, 2000/*--Decided July 5, 2000

 Before Posner, Chief Judge, and Diane P. Wood and

Evans, Circuit Judges.

 Diane P. Wood, Circuit Judge. Nicholas Ross

pleaded guilty in 1997 to possession of a firearm

by a felon. Ever since then, Ross has steadfastly

maintained that the district court should have

imposed a sentence under the Armed Career

Criminal Act that reflected a reduction of 34

months, to account for the time he spent

imprisoned on a related state burglary conviction

before his federal sentencing. The district

court, thinking that the Bureau of Prisons

("BOP") would give Ross credit for the 34 months

in question, imposed a term of 188 months on the

understanding that Ross would actually serve only

154 more months in federal custody. Ross, who was

pro se at sentencing, appealed and argued that

the district court should have credited the time

directly. Twice we rejected appointed appellate

counsel’s characterization of Ross’s appeal as

frivolous. The third time has proven to be the

charm for Ross. The second new lawyer, agreeing

with Ross, has presented the argument that the

sentencing court committed reversible error. The

government has confessed error. We accept its

concession and remand for resentencing. 

 Ross broke into an Indiana home in July 1994

and stole a .25 caliber Beretta handgun. He was

later apprehended while driving a stolen van, and

the officers found the Beretta in the waistband
of his pants. This led to state charges of

residential burglary, to which Ross pleaded

guilty; for this, he ultimately received a state

sentence of 20 years’ imprisonment. Before

sentencing on the burglary conviction, a federal

grand jury returned a two-count indictment,

charging Ross with possession of a firearm by a

felon, 18 U.S.C. sec. 922(g)(1), and possession

of a stolen firearm, 18 U.S.C. sec. 922(j)--the

same Beretta handgun. At the time Ross committed

the burglary, he had three prior violent felony

convictions, rendering him eligible for a 15-year

mandatory minimum sentence under the Armed Career

Criminal Act, 18 U.S.C. sec. 924(e)(1). Ross

pleaded guilty to the sec. 922(g)(1) charge, and

the sec. 922(j) charge was later dismissed on the

government’s motion. By the time the district

court sentenced Ross, he had already served 34

months on the undischarged state sentence. 

 At sentencing, Ross argued that U.S.S.G. sec.

5G1.3(b) required the court to impose his federal

sentence concurrently with the undischarged

residential burglary sentence. Ross further

argued that Application Note 2 to sec. 5G1.3

required the court to reduce his presumptive

federal sentence by the 34 months he had already

served on the undischarged state sentence. The

district court, without objection from the

government, agreed on both points. The court

properly ordered the federal prison term to run

concurrently with the remainder of the state

prison term based on its determination that

Ross’s burglary conviction was "fully taken into

account" in the offense level calculation. See,

e.g., United States v. Bell, 28 F.3d 615, 618-19

(7th Cir. 1994); United States v. Evans, 1 F.3d

654, 654 (7th Cir. 1993) (per curiam). But

instead of sentencing Ross to 154 months, as Ross

had argued was appropriate, the court sentenced

Ross to 188 months and attempted to order the BOP

to give Ross a 34-month credit against that term.

It was this step in the process that Ross claims

was error, and the government now agrees with

him. Ross notes that the BOP not only has not

given him credit, but worse, that 18 U.S.C. sec.

3585(b) bars it from doing so, because the state

had already credited the 34 months against his

state sentence. 

 Ross is correct. The district court had no

authority to order the BOP to give Ross the

credit because that authority rests exclusively

with the BOP. See United States v. Wilson, 503

U.S. 329 (1992); United States v. McGee, 60 F.3d

1266, 1272 (7th Cir. 1995). Even if the BOP had

desired to effectuate the sentencing court’s

intent, it could not have done so because sec.

3585(b) forbids the BOP from giving credit for

presentence custody when that credit has been
applied against another sentence. See United

States v. Walker, 98 F.3d 944, 945 (7th Cir.

1996). And here, the state obviously was giving

Ross credit for his time served in state prison

on a state sentence. Under these circumstances,

Application Note 2 to sec. 5G1.3 directs the

sentencing court to credit the otherwise

applicable guideline term of imprisonment. See

Bell, 28 F.3d at 618-19; see also United States

v. Dorsey, 166 F.3d 558, 563 (3d Cir. 1999);

United States v. Drake, 49 F.3d 1438, 1440 (9th

Cir. 1995); United States v. Kiefer, 20 F.3d 874,

875-76 (8th Cir. 1994). Therefore, we agree with

Ross that Application Note 2 to sec. 5G1.3

required the sentencing court to reduce by 34 his

188-month guideline sentence and impose a net

sentence of 154 months. 

 One further issue requires our attention. Ross,

as an armed career criminal, was subject to a 15-

year mandatory minimum sentence under 18 U.S.C.

sec. 924(e)(1). On the surface of things, it

would appear that the requirement of Application

Note 2 to apply the 34-month credit to Ross’s

sentence would have left his net sentence 26

months short of the statutorily required 15-year

minimum term. In our view, however, such a

conclusion would exalt form over substance.

Ross’s total sentence for purposes of sec. 924(e)

should be viewed as the sum of the sentence

reflected on the federal district court’s order

of judgment (which here said 188 months, but

should have said the 154 months the judge

intended he should actually serve) plus the 34

months he has already served for the "conduct

taken into account in determining the guideline

range." The effect of sec. 924(e) is to require

that the total of the time served plus the

federal sentence cannot be less than 180 months

(the mandatory 15-year period), but Ross’s total

is 188 months, comfortably above that range. Two

other circuits have come to the same conclusion

on similar facts. See Drake, 49 F.3d at 1440-41;

Kiefer, 20 F.3d at 876-77. As the Kiefer court

pointed out, the language of sec. 924(e)

stipulates that an armed career criminal like

Ross "shall be . . . imprisoned not less than

fifteen years." The statute does not specify any

particular way in which that imprisonment should

be achieved. The district courts are empowered

under the Sentencing Guidelines to adjust the

concurrent or consecutive nature of federal

sentences so as to produce the correct total

punishment. See U.S.S.G. sec.sec. 5G1.2, 5G1.3.

The Guidelines take the additional step in sec.

5G1.3 of specifying how undischarged terms of

imprisonment should be taken into account to

achieve the correct result. Application Note 2

goes further and specifies that the credit so

given is not a departure from the guideline
range; it is simply another way of achieving the

required period of imprisonment. (A departure

below the statutory mandatory minimum would be

prohibited, unless the defendant qualified for

safety valve treatment, 18 U.S.C. sec. 3553(f),

or the government moved for a departure based on

substantial assistance, 18 U.S.C. sec. 3553(e).

See United States v. Smallwood, 188 F.3d 905, 916

(7th Cir. 1999); United States v. Arrington, 73

F.3d 144, 147 (7th Cir. 1996).)

 We conclude the computation of the total term

of imprisonment for purposes of sec. 924(e) may,

consistently with Application Note 2 to sec.

5G1.3, be accomplished by adding up the number of

months the defendant has served on the related

conviction and the number of months assessed in

the federal judgment. The total must equal or

exceed the statutory mandatory minimum of 180

months. On remand, the sentencing court shall

give Ross the full 34-month credit for the time

he served on the undischarged state sentence and

amend the total in the federal sentence

accordingly.

 For these reasons, we Vacate Ross’s sentence and

Remand for resentencing.

/* After an examination of the briefs and the

record, we concluded that oral argument was

unnecessary. Thus, the appeal was submitted on

the briefs and the record. See Fed. R. App. P.

34(a)(2).