UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVA BRANTLETTE ANDING,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(97-CR-64-1)
March 8, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Appellant Alva Brantlette Anding appeals the district court’s
refusal to designate whether his sentence should run concurrent or
consecutive to his yet to be imposed state sentence. Because we
find no plain error, we affirm.
BACKGROUND
Anding pled guilty to two counts of distribution of d-
methamphetamine, one count of distribution of methamphetamine, one
count of carrying a firearm in relation to a drug trafficking
crime, and one count of being a felon in possession of a firearm.
The court sentenced Anding to 130 months on each of the
distribution counts, 60 months for carrying a firearm in relation
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in Local Rule 47.5.4.
to a drug trafficking crime, and 120 months for being a felon in
possession of a firearm. All of the sentences were to run
concurrently except for the 60-month prison term for carrying a
handgun during a drug trafficking crime.
At the time he committed these offenses, Anding was on state
parole for unrelated drug trafficking crimes. Although he had pled
guilty to violating the terms of his Louisiana parole, he had not
been sentenced for the parole violation at the time his federal
sentence was imposed.1 Appellant’s only argument on appeal is that
the district court should have designated whether his federal
sentence was to run consecutively or concurrently to the yet to be
imposed state sentence.
STANDARD OF REVIEW
The parties dispute the standard of review that applies in
this case. Although the record ought to be preserved in each
individual case, it seems clear enough here that Anding and the
district court were on the same wavelength in regard to the
possibility of a concurrent sentence. Anding’s counsel, the
Federal Public Defender, requested a concurrent sentence from the
district court in the sentencing hearing immediately before
Anding’s sentencing hearing. In United States v. Butler, the
Federal Public Defender informed the court that Butler was facing
a state sentence for revocation of parole due to his federal
1
The record does not reflect whether Louisiana has subsequently sentenced Anding for violation of his parole.
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conviction and requested concurrent federal and state sentences.2
The district court initially rejected this request, but four days
later, the court reconsidered the request at a new hearing. The
court again rejected Butler’s request because it believed that it
lacked the authority to order the state sentence to run
concurrently and thought that the issue should be decided by the
state court. At the close of the Butler sentencing, the court
mentioned that it would be facing the same issue “in about five
minutes,” presumably referring to Anding’s impending sentence. At
Anding’s hearing, the issue was again raised whether the state
sentence would run concurrently or consecutively to the federal
sentence. Although the Federal Public Defender did not
specifically request that Anding’s sentence run concurrently, as he
had previously done in Butler, the court and counsel recognized
that it was facing the “same issue” in Anding.
But, the Federal Public Defender cannot claim the advantage of
the Butler hearing and ignore the disadvantage that accrues. While
he placed the concurrent sentencing issue before the court
sufficiently to preserve error, Anding’s counsel conceded in the
district court that no statute or sentencing guideline is on point
and he did not object to the district court’s failure to apply the
Guidelines to this sentencing issue. Appellant relies on United
States v. Richardson to argue that he preserved his sentencing
2
The first sentencing hearing in Butler occurred on March 9, 1998. The sentencing at issue in this
case occurred four days later on March 13, 1998. At the second hearing, the district court
reconsidered Butler’s sentence and then conducted Anding’s sentencing hearing.
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issue for appeal by simply requesting a concurrent sentence. See
87 F.3d 706, 710 (5th Cir. 1996). Appellant’s reliance on
Richardson is misplaced, however, because, unlike the defendant in
Richardson, appellant’s counsel specifically told the district
court that, “there is no provision under Title 18 or the Guidelines
for a case like this.” Because Anding did not alert the district
court to the issue before it, and because he now seeks to justify
his argument with both statutory and Guidelines authority not
presented to the trial court, Anding is subject to the plain error
standard of review. See id.
An appellant who raises an issue for the first time on appeal
has the burden of showing 1) the existence of actual error; 2) that
the error was plain (or “clear” or “obvious”) under current law at
the time of sentencing; and 3) that it affected his substantial
rights. See United States v. Castro, __ F.3d __, __ (5th Cir.
1999) (en banc) (per curiam). A plain error affects an appellant’s
substantial rights only if the error was prejudicial; in other
words, “[i]t must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.
Ct. 1770, 1778 (1993). Because the defendant bears the burden of
persuasion, a court of appeals will not correct the error unless
the defendant makes a “specific showing of prejudice.” Id. 507
U.S. at 735, 113 S. Ct. at 1778. Even when an appellant satisfies
this burden, however, this court has discretion whether to correct
the error and will not do so unless the error “seriously affect[s]
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the fairness, integrity or public reputation of judicial
proceedings.” Id. 507 U.S. at 735-36, 113 S. Ct. at 1778-79
(quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct.
391, 392 (1936)).
DISCUSSION
This court has permitted a federal district court to
“prospectively forbid its sentence from being served concurrently
with any sentence that may subsequently be handed down by a state
court, even when the state proceedings arise from identical offense
conduct.” United States v. Brown, 920 F.2d 1212, 1216 (5th Cir.
1991) (per curiam). Thus, the district court technically erred
when it implied that it lacked the authority to order Anding’s
federal sentence to run concurrently with a state sentence not yet
imposed. See 18 U.S.C. § 3584. The court’s technical error,
however, was not clear or obvious at the time of sentencing.
Section 5G1.3 of the Sentencing Guidelines addresses the
imposition of a sentence on a defendant who is subject to an
undischarged term of imprisonment. As is evident from the parties’
briefs, there is a legitimate dispute as to whether § 5G1.3(a) or
§ 5G1.3(c) applies and whether application note three or note six
applies. Further, although the parties dispute whether subsection
(c) requires a consecutive sentence for parole revocation, our case
law supports the government’s assertion that application note six
requires a consecutive sentence for situations like Anding’s. See
United States v. Hornsby, 88 F.3d 336, 340 (5th Cir. 1996) (per
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curiam); United States v. Torrez, 40 F.3d 84, 88 n.2 (5th Cir.
1994). In addition, this court has not clearly resolved whether a
federal district court should order a defendant’s sentence to run
concurrently or consecutively to a yet to be imposed state parole
revocation sentence.
This is not a case where a district court’s error was “so
obvious, clear, readily apparent, or conspicuous that the judge was
derelict by not recognizing the error.” United States v. Jones,
132 F.3d 232, 248 (5th Cir. 1998). Since the district court did
not plainly err in refusing to decide whether to order Anding’s
federal sentence to run concurrently with his subsequent state
sentence, we affirm the sentence.
AFFIRMED.
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