United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3864
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Cale Harris, *
*
Appellant. *
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Submitted: November 18, 2011
Filed: February 28, 2012
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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
Cale Harris pleaded guilty to three federal offenses: conspiracy to distribute
100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(B),
and 846; discharging a firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A)(iii); and conspiracy to commit money laundering, in
violation of 18 U.S.C. §1956(h). The district court1 sentenced him to 220 months’
imprisonment. Harris appeals his sentence, and we dismiss the appeal as moot.
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
After Harris pleaded guilty, the probation office recommended an advisory
guideline range of 121 to 151 months’ imprisonment on each of the conspiracy
charges, to be served concurrently, based on a total offense level of 29 and a criminal
history category IV. The presentence report recommended the mandatory minimum
sentence of 120 months’ imprisonment on the firearm charge. See 18 U.S.C.
§ 924(c)(1)(A)(iii). Because the sentence on the firearm count must be imposed
consecutively to any other term of imprisonment, see 18 U.S.C. § 924(c)(1)(A),
Harris’s total advisory sentencing range was 241 to 271 months’ imprisonment. At
the sentencing hearing, the government and Harris entered into a stipulation, accepted
by the district court, that reduced the total offense level from 29 to 27. As a result,
Harris’s advisory guideline range was adjusted to 100 to 125 months’ imprisonment
for the conspiracy charges, and the total range was 220 to 245 months’ imprisonment.
At the sentencing hearing, Harris also sought a 22-month downward adjustment
under USSG § 5G1.3(b) for the time he had served for a Missouri state offense that
was considered relevant conduct in calculating his offense level on the conspiracy
charges. Harris had served 22 months for the state offense, but was on parole at the
time of his federal sentencing. The district court gave Harris credit for the time
served, and sentenced him to 100 months on the conspiracy charges and the
mandatory consecutive sentence of 120 months on the firearm charge, for a total
sentence of 220 months’ imprisonment.
Harris appealed his sentence on three grounds: (1) that the district court created
an unwarranted sentence disparity among co-defendants in violation of 18 U.S.C.
§ 3553(a)(6); (2) that the district court inadequately applied USSG § 5G1.3(b); and
(3) that the district court imposed a substantively unreasonable sentence. The
government moved to dismiss the appeal, arguing that Harris waived his right to
appeal in a plea agreement. We granted the motion with respect to the first and third
points raised by Harris, but allowed the appeal to proceed on the second. The plea
agreement provided that Harris “retains his right to appeal any Sentencing Guidelines
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issues that have not been agreed upon by the parties.” R. Doc. 232, Plea Agreement
¶ 15b. The application of § 5G1.3(b) is a sentencing guidelines issue that was not
agreed upon by the parties, id. ¶ 10, so it was not waived.
On the merits, Harris argues that the district court misapplied § 5G1.3(b) by not
specifying that his federal sentence was to run concurrently with the remainder of the
undischarged portion of his state sentence. He urges this court to remand the case to
the district court for correction of the sentence and judgment.
In addition to responding on the merits, the government moved to dismiss the
appeal on the ground that it is moot, because Harris’s state sentence has been
discharged. The motion was accompanied by a letter from the Missouri Board of
Probation and Parole, stating that the parole board had granted an administrative
discharge in Harris’s state case and had no further interest in the case. The
government argues that the appeal is moot, because there is no undischarged state
term of imprisonment, and it is academic whether the federal sentence runs
consecutive or concurrent to the state sentence.
We conclude that the appeal is moot, because there is no effectual relief
available to Harris. See Calderon v. Moore, 518 U.S. 149, 150 (1996). Harris
disputes only whether the district court, pursuant to § 5G1.3(b)(2), should have
imposed the federal sentence “to run concurrently to the remainder of the
undischarged term of imprisonment.” At this point, because Missouri discharged
Harris’s state sentence, there is no longer an “undischarged term of imprisonment.”
Even if Harris prevailed on the merits of his argument, no time served since the date
of the federal sentencing could be credited toward Harris’s state sentence, because the
state sentence has been discharged. Since the date of sentencing, Harris has served
his federal sentence, so the alleged error in failing to run the federal and state
sentences concurrently did not deprive him of any credit toward his federal sentence.
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In sum, no relief is available on either the state or federal sentence, and the appeal is
therefore moot.
For these reasons, we grant the government’s motion to dismiss the appeal. We
also deny Harris’s pro se motion to supplement the record.
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