Appeal from the United States District Court for the District of Oregon. D.C. No. CR-93-00386-1-MFM. Malcolm F. Marsh, District Judge, Presiding.
Before: Cynthia Holcomb Hall, Diarmuid F. O'Scannlain, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge O'Scannlain.
O'SCANNLAIN, Circuit Judge:
We must reconcile an apparent conflict between a mandatory minimum sentence statute and the United States Sentencing Guidelines provisions for concurrent sentencing.
In a state proceeding, Anthony Drake was sentenced to sixty-six months in an Oregon prison for his participation in an armed robbery in which a .380 SPP semi-automatic handgun was used.
Shortly after Drake began serving his state sentence, a federal grand jury indicted him on two counts of being a felon in possession of a firearm. Drake ultimately pled guilty to possession of the handgun used in the Oregon robbery, in violation of 18 U.S.C. § 922(g). Because Drake had previously been convicted of three violent felonies, his plea of guilty to the section 922(g) offense rendered him subject to a mandatory minimum 180-month sentence under 18 U.S.C. § 924(e)(1). With this in mind, Drake and the government agreed that a sentence of 188 months would be appropriate.
At sentencing, Drake argued that, in light of U.S.S.G. § 5G1.3(b), the federal sentence should be imposed to run concurrently to his state sentence. In relevant part, section 5G1.3(b) provides that where a federal sentence is imposed on a defendant who is subject to an undischarged term of imprisonment,
if . . . the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
Reasoning that his armed robbery - the premise for his state sentence - had been fully considered in the determination of his federal sentence,*fn1 Drake concluded that section 5G1.3(b) applied.
Further, Drake contended that his federal sentence should be adjusted to reflect the time that he had served in state prison. In support of his argument, Drake cited Application Note 2 to section 5G1.3,*fn2 which provides:
When a sentence is imposed pursuant to subsection (b), the court should adjust for any term of imprisonment already served as a result of the conduct taken into account in determining the sentence for the instant offense.*fn3
U.S.S.G. § 5G1.3, comment. (n.2) (Nov. 1993). As Drake had served 12 months of his state sentence at the time of the federal sentencing proceeding, such reduction would result in a federal sentence of 176 months - 188 months less 12 months.
The district court agreed that the sentences should run concurrently. However, the court was troubled by the fact that to credit Drake's state sentence against his federal one would reduce his federal sentence below the mandatory 180-month minimum required by 18 U.S.C. § 924(e)(1). Concerned that it lacked authority to depart below the mandatory minimum, the court concluded that "this is a matter for the Bureau of Prisons. An application can be made there . . . because I do not feel I have the ...