United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3169
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District Court of North Dakota.
Darrin Bernard Raysor, *
*
Appellee. *
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Submitted: October 20, 2011
Filed: November 22, 2011
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Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and WEBBER,1 District
Judge.
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SHEPHERD, Circuit Judge.
The United States appeals from an order issued by the district court sentencing
Darrin Bernard Raysor to 52 months imprisonment. Because the district court erred
as a matter of law in failing to sentence Raysor to the mandatory minimum sentence
of 60 months for his conviction under 21 U.S.C. § 841, we reverse and remand for
resentencing.
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri, sitting by designation.
I.
On December 9, 2009, Raysor began serving a five year sentence for his
conviction in North Dakota state court for possession of marijuana with intent to
deliver and theft of property. One day later, on December 10, 2009, Raysor was
indicted by a federal grand jury and charged with conspiracy to possess with intent to
distribute and distribution of controlled substances, in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2. The indictment specifically alleged that as part of a
conspiracy, Raysor and others distributed cocaine, cocaine base, and marijuana in
North Dakota, Minnesota, and elsewhere.
A federal detainer was filed on December 14, 2009, at the state facility where
Raysor was serving time on his state conviction. On December 21, 2009, a writ of
habeas corpus ad prosequendum was issued to the state facility ordering that Raysor
be transferred to federal authorities to answer the charges against him. Raysor made
his initial appearance in federal court on the federal charges on January 11, 2010, and
was detained.
On May 10, 2010, Raysor pled guilty to Count 1 of the federal indictment. By
the terms of the plea agreement, Raysor and the United States agreed that Raysor’s
conduct involved distributing more than 20 grams but less than 35 grams of cocaine
base and that the offense carried a 60 month mandatory minimum term of
imprisonment. During the change of plea hearing, the court accepted the parties’
stipulation as to the drug amount contained in the plea agreement.
A sentencing hearing was held on August 25, 2010. At the hearing, the district
court indicated that it had reviewed the pre-sentence investigation report, which noted
the 60 month mandatory minimum sentence set by statute. Raysor and the United
States both recommended that the trial court impose the mandatory minimum 60
month sentence, to run concurrent with the state sentence Raysor was already serving.
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However, over the Government’s objection, the district court sentenced Raysor to 52
months imprisonment and 4 years of supervised release to run concurrent to Raysor’s
state sentence. In setting Raysor’s sentence of imprisonment at 52 months, the district
court stated that it had made an adjustment to Raysor’s sentence pursuant to United
States Sentencing Commission, Guidelines Manual, §5G1.3. (Sentencing Tr., Aug.
25, 2010, at 6.) The court reasoned that such an adjustment was warranted “to take
into account the time that [Raysor] already served [on his state sentence] which should
be concurrent” to his federal sentence. (Id.)
II.
The United States appeals Raysor’s sentence, arguing that the district court
erred in sentencing Raysor to 52 months rather than the 60 month mandatory
minimum set by 21 U.S.C. § 841(b)(1)(B). “This court reviews ‘the district court’s
interpretation and application of § 5G1.3 de novo.’” United States v. Williams, 557
F.3d 556, 563 (8th Cir. 2009) (quoting United States v. Hurley, 439 F.3d 955, 957
(8th Cir. 2006)).
“Section 5G1.3 addresses the sentencing of a defendant subject to an
undischarged term of imprisonment.” United States v. Bauer, 626 F.3d 406, 408 (8th
Cir. 2010). Our recent precedent has made clear that subsections (b) and (c) of section
5G1.3 uniquely apply in different scenarios. “[S]ubsection (b) applies only where a
defendant is subject to an undischarged term of imprisonment for another offense that
is ‘relevant conduct to the instant offense of conviction . . . and that was the basis for
an increase in the offense level for the instant offense.’” United States v. Becker, 636
F.3d 402, 407 (8th Cir. 2011). In contrast, “[w]hen a defendant has an undischarged
sentence for offenses that are not relevant or only partially relevant to the instant
offense, subsection (c) of § 5G1.3 applies rather than subsection (b).” Becker, 636
F.3d at 407-08.
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In the present case, both parties concede that the applicable provision is section
5G1.3(c) because Raysor’s state sentence was not “the basis for an increase in the
offense level” for his federal offense as required by section 5G1.3(b). Under section
5G1.3(c), a sentencing judge may “impose a sentence that runs ‘concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment.’”
United States v. Jones, 628 F.3d 1044, 1048 (8th Cir. 2011). However, unlike section
5G1.3(b), which “allows sentencing judges to give defendants credit for a ‘period of
imprisonment,’” section 5G1.3(c) does not allow a district court to adjust a sentence
for time served. Jones, 628 F.3d at 1048-49; see also Hurley, 439 F.3d at 957 (8th
Cir. 2006) (“Subsection (c) does not allow a court to reduce a sentence directly . . . .
There is no provision under § 5G1.3(c) for granting credit for time served.”).
The disparity between subsections (b) and (c) in allowing credit for time served
is a reflection of the policy considerations backing each subsection. Pursuant to
subsection (b), the district court may adjust a sentence for time served on a related
sentence where conduct from the related sentence was the basis for an increase in the
federal offense level. “This policy protects a defendant ‘against having the length of
his sentence multiplied by duplicative consideration of the same criminal conduct.’”
Williams, 557 F.3d at 563 (quoting Witte v. United States, 515 U.S. 389, 405 (1995)).
This policy against double-counting is not furthered where subsection (c) is implicated
because the federal sentence is in no way enhanced as a result of the separate state
sentence. See United States v. Lyons, 47 F.3d 309, 311 (8th Cir. 1995) (per curiam)
(finding that applying section 5G1.3(c) to make the “federal sentence concurrent with
the remainder of [the defendant’s] unexpired state sentence . . . achieved the desired
result of giving [the defendant] some sentencing credit for the overlap in his state and
federal offense conduct, and also of imposing some incremental punishment for the
instant offenses” (emphasis omitted)).
At the sentencing hearing, the district court stated that it adjusted Raysor’s
mandatory minimum sentence set by 21 U.S.C. § 841 by giving credit for time served
under section 5G1.3. Yet because the applicable Guidelines provision is section
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5G1.3(c), the district court did not have authority to make such an adjustment for time
served. As a result, the district court’s sentencing decision was in error and must be
reversed.
Raysor argues that even though section 5G1.3(c) does not allow for an
adjustment for time served, it still allows the district court discretion to downwardly
depart to “ensure that the combined punishment is not increased unduly by the fortuity
and timing of separate prosecutions and sentencings.” See USSG §5G1.3, comment.
(n.3(E)). This argument fails because “the only authority for the district court to
depart below the statutorily mandated minimum sentence is found in 18 U.S.C. §§
3553(e) and (f), which apply only when the government makes a motion for
substantial assistance or when the defendant qualifies under the safety valve
provision.” United States v. Chacon, 330 F.3d 1065, 1066 (8th Cir. 2003) (citation
omitted); see also United States v. Watts, 553 F.3d 603, 604 (8th Cir. 2009) (per
curiam) (“District courts lack the authority to reduce sentences below congressionally-
mandated statutory minimums.”).2
2
Because our decision is limited to section 5G1.3(c), we do not address whether
section 5G1.3(b) grants a district court authority to sentence below a mandatory
minimum set by statute. In United States v. Kiefer, 20 F.3d 874 (8th Cir. 1994), we
found that a district court erred in stating that it had no discretion under section
5G1.3(b) to reduce the defendant’s mandatory minimum sentence under 18 U.S.C. §
924(e)(1) for the time that the defendant served in state prison as a result of the same
course of conduct. Kiefer, 20 F.3d at 877. We note, however, that our decision in
Kiefer placed specific emphasis on the language in section 924(e)(1), which required
that a person with three prior violent felony convictions and who violated section
922(g) should be “imprisoned not less than fifteen years.” Kiefer, 20 F.3d at 876
(emphasis added). Furthermore, Kiefer was decided in 1994 when the Sentencing
Guidelines were viewed as mandatory. As a result of United States v. Booker, 543
U.S. 220 (2005), and its progeny, the Guidelines are now advisory only. Therefore,
whether Kiefer’s holding is still good law and to what extent remains an open
question.
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Likewise, Raysor’s argument that the district court had discretion to adjust his
sentence under 18 U.S.C. § 3584 also fails. Raysor is correct that under section 3584,
a “district court has broad discretion to determine whether a sentence should be
consecutive or concurrent.” United States v. Mayotte, 249 F.3d 797, 799 (8th Cir.
2001) (per curiam). However, determining whether a sentence is to run consecutively
or concurrently is distinct from whether a defendant should be given credit for time
served. Section 3584 does not include any language authorizing a court to adjust a
sentence for time served, and we decline to read such authority into the statute.
III.
We reverse the sentencing decision of the district court. Raysor’s sentence is
vacated and the case is remanded for resentencing.
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