F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-5203
v. (D.C. No. 06-CR-84-EA)
(N.D. Okla.)
TY RELL D U A N E C RA WFO RD,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **
Defendant-Appellant Tyrell Crawford appeals from the sentence imposed
by the district court following his plea of guilty to one count of possession of a
firearm by a previously-convicted felon in violation of 18 U.S.C. § 922(g)(1).
M r. Crawford asked the district court to consider imposing a sentence that would
run concurrently w ith the sentences he would receive after pleading guilty to tw o
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
other charges in state court, but the court indicated that it did not have the power
to impose a concurrent sentence because M r. Crawford had not yet been
sentenced on the state charges. On appeal, he argues the district court’s failure to
recognize its discretion to impose concurrent sentences under our holding in
United States v. W illiams, 46 F.3d 57 (10th Cir. 1995), was a legal error, and the
government agrees. W e exercise jurisdiction under 18 U.S.C. § 3742 and remand
for resentencing.
Background
On M ay 3, 2006, a federal grand jury returned an indictment charging M r.
Crawford with one count of possession of a firearm by a previously-convicted
felon. At the time, M r. Crawford was in the custody of the state of Oklahoma
awaiting the disposition of two state law charges, driving under the influence and
possessing controlled substances. On June 12, M r. Crawford pled guilty to the
federal felon-in-possession charge.
The Probation Office completed a Presentence Investigation Report (PSR),
which determined that the appropriate Sentencing Guideline range for M r.
Crawford was 37 to 46 months’ imprisonment. Although he did not contest this
calculation, M r. Crawford requested a sentence below the Guideline range and
asked that it be made to run concurrently with whatever sentences he would
receive in O klahoma state court for the two charges pending there. In light of M r.
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Crawford’s extensive criminal history, the district court determined that a
sentence below the Guideline range would not be appropriate. After imposing a
sentence of 46 months’ imprisonment followed by three years of supervised
release, the district court rejected M r. Crawford’s argument that the sentence
should run concurrently with his upcoming state sentences:
I need to address a request by [defense counsel] that was . . . for a
sentence that is concurrent with the state sentences. Unfortunately,
it’s not feasible for this court to issue concurrent sentences because
I’m the first judge to sentence. I note that there [are] still two other
matters pending in state court, and I think one of them a[t] least, has
a hearing date on September 15th. Nothing, of course, prohibits the
state court from ordering that its sentence or sentences be served
concurrently with the federal sentence, but because the federal
sentence is the first sentence, I cannot order that they be served
concurrently.
Aplee. Br. Attach. 1 at 10:19-11:5. M r. Crawford timely appealed.
Discussion
W e typically review a district court’s decision to impose a concurrent or
consecutive sentence for abuse of discretion. W illiams, 46 F.3d at 58. However,
M r. Crawford argues that the district court made a legal error in concluding that it
did not have discretion to impose a concurrent sentence. As such, we will review
the district court’s understanding of its legal authority de novo. See Conkle v.
Potter, 352 F.3d 1333, 1335 n.4 (10th Cir. 2003).
M r. Crawford argues that this appeal is controlled by W illiams, in which
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we held that “multiple terms of imprisonment imposed at different times w ill
normally run consecutively, unless the district court affirmatively orders that the
terms be served concurrently.” 46 F.3d at 59. The government agrees that, under
W illiam s, the district court had the authority to order M r. Crawford’s sentence to
run concurrently with the sentences he was to receive in state court. Aplee. Br. at
5; see also U nited States v. M cD aniel, 338 F.3d 1287, 1288 (11th Cir. 2003).
The district court’s comments indicate that it did not believe it had the
authority to impose a concurrent sentence in this case. Accordingly, we must
remand so that the district court may clearly exercise its discretion in sentencing
M r. Crawford. In remanding, we express no opinion regarding what the
appropriate sentence for M r. Crawford should be.
R EM A N D ED .
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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