[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 1, 2008
No. 07-14114 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-00043-CR-WCO-2
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JOHNNY CLAUDE SLATON,
a.k.a. Johnny Claude Cooper,
a.k.a. Johnny Cooper, etc.,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Johnny Slaton appeals his low-end, guideline range 188-month sentence for
being a felon in possession of a firearm. At sentencing, Slaton requested that the
district court exercise its authority to impose a sentence that would run concurrent
to his undischarged state court sentence pursuant to U.S.S.G. § 5G1.3, but the
district court refused to designate the sentence as concurrent or consecutive based
on its conclusion that the Bureau of Prisons, not the court, was authorized to make
the determination and that § 5G1.3 did not apply. As imposed, Slaton’s sentence
runs consecutive to his state court sentence by statute.
Having reviewed the record and the briefs of the parties, we conclude that
the district court erred in its failure to recognize its authority to impose Slaton’s
sentence as running concurrent to his state sentence under 18 U.S.C. § 3584 and in
its refusal to consider subparagraph (c) of § 5G1.3 in fashioning Slaton’s sentence.
Under § 3584, the district court may order multiple terms of imprisonment
imposed at different times to run concurrently. 18 U.S.C. § 3584(a). In
determining whether to impose a concurrent or consecutive sentence, the district
court must consider the factors set forth in 18 U.S.C. § 3553(a), which incorporate
U.S.S.G. § 5G1.3. See United States v. Ballard, 6 F.3d 1502, 1505–06 (11th Cir.
1993).
Accordingly, we vacate Slaton’s sentence and remand his case to the district
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court for resentencing.
VACATED AND REMANDED.
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