                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 12, 2009
                    UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 09-5027
          v.                                            (N.D. of Okla.)
 IRA LEE WILKINS,                             (D.C. No. 4:04-CR-00060-TCK-2)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Ira Lee Wilkins appeals from the sentence imposed by the district court

following the district court’s conclusion that Wilkins violated the terms of his

supervised release. Wilkins asked the district court to impose a sentence that

would run concurrently with any sentence he might receive in two pending state

criminal prosecutions, but the court declined to do so. On appeal, he argues the



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
district court failed to recognize its authority to impose a concurrent sentence

with the yet-to-be decided state sentences. Because we find that the district court

recognized its discretion and merely decided not to exercise that discretion in this

case, we conclude the sentence was procedurally reasonable, and AFFIRM.

                                  I. Background

      Wilkins pleaded guilty to conspiracy and fraud, and the district court

sentenced him to nine months’ imprisonment and three years supervised release.

We affirmed his conviction in United States v. Wilkins, 158 F. App’x 141, 143

(10th Cir. 2005).

      While on supervised release, Wilkins was arrested after repeatedly missing

scheduled drug tests and monthly reports, as well as for flunking drug testing.

The district court subsequently found Wilkins had violated the terms of his

supervised release.

      Prior to Wilkins’s sentencing on his violation of supervised release,

unrelated state criminal charges were filed against him in Tulsa and Wagoner

County, Oklahoma. 1 At sentencing before the federal district court, Wilkins

argued any federal sentence should run concurrently with his yet-to-be-imposed

sentences in these state cases.




      1
        The charges concerned assault on a police officer and breaking into a
house, respectively.

                                         -2-
      The district court, however, denied his request. Specifically, the district

court stated:

      The Court finds that there is some case law out there that would allow
      a federal sentence to be served concurrently. I think United States v.
      Williams, 46 F.3d 57. And there’s a circuit split on a question of
      whether a district court has authority to order a federal sentence to run
      concurrent to a state sentence that has yet to be imposed.

      Frankly, I don’t see much wisdom in that particular way of doing
      things. Certainly not in this case. We don’t know in Mr. Wilkins’
      situation whether he’s even going to be convicted of any state court
      violations or any state statutory violations. He’s pled innocent,
      presumed to be innocent in both of those matters, Wagoner County and
      the Tulsa County case.

      And it seems to me that the last court to sentence is in the best position
      to make a total determination concerning Mr. Wilkins. And that will be
      based on the events here today, as well as what happens in any trials
      that he’s involved in in state court. So that aspect of the sentencing
      memorandum will be denied.

R. Vol. II., Tr. Sentencing p. 4, 5.

      The district court then revoked Wilkins’s supervised release and sentenced

him to ten months in prison and twenty-six months’ supervised release. This

appeal followed, in which Wilkins argues the district court erred procedurally in

failing to recognize it had authority to run Wilkins’s sentence concurrently with

his yet-to-be-imposed state sentences.

                                   II. Discussion

      We review a district court’s decision to impose a concurrent or consecutive

sentence for abuse of discretion. United States v. Williams, 46 F.3d 57, 58 (10th


                                         -3-
Cir. 1995). But Wilkins argues the district court committed legal error by failing

to recognize its authority to impose a concurrent sentence in his case. We review

the district court’s legal authority de novo. See United States v. Fay, 547 F.3d

1231, 1235 (10th Cir. 2008); Conkle v. Potter, 352 F.3d 1333, 1335 n.4 (10th Cir.

2003).

         We conclude the district court understood its authority to impose a

concurrent sentence; it simply chose not to do so. We thus find no legal error.

         The district court’s comments demonstrate it believed it had the authority

to impose a concurrent sentence in this case. Specifically, the court stated that

“there is some case law out there that would allow a federal sentence to be served

concurrently.” R. Vol. II., Tr. Sentencing p. 4. The court then cited proper

authority within the Tenth Circuit for that very position: Williams, 46 F.3d at

58–59.

         Indeed in Williams, we explained that “[w]hether to impose a consecutive

or concurrent sentence is a matter within the discretion of the district court.” Id.

at 58. 2 After acknowledging the discretion of the district court in these

circumstances, we further explained that “multiple terms of imprisonment

imposed at different times will normally run consecutively, unless the district


         2
         Ordinarily, under Tenth Circuit law, a district court has this discretion.
See Williams, 46 F.3d at 58–59. As Wilkins emphasizes, however, a district
court lacks discretion to impose a sentence concurrent to a previously completed
state sentence. Fay, 547 F.3d at 1236.

                                           -4-
court affirmatively orders that the terms be served concurrently.” Id. at 59; see

also United States v. Eccleston, 521 F.3d 1249, 1250 (10th Cir. 2008), cert.

denied, 129 S. Ct. 430 (2008) (finding where federal sentence did not

affirmatively order that it was to run concurrently with state sentence that the

execution of consecutive sentences was lawful). Finally, we concluded that

nothing in federal law prohibited a federal court from ordering that a federal

sentence be served consecutively to a state sentence that had not yet been

imposed. 3 Williams, 44 F.3d at 59; see also Binford v. United States, 436 F.3d

1252, 1254 (10th Cir. 2006) (rejecting as foreclosed by Williams the argument

that although a district court ordinarily is authorized to impose either consecutive

or concurrent sentences, that authority is prohibited in cases where the additional

sentence has yet to be imposed); States v. McDaniel, 338 F.3d 1287, 1288 (11th



      3
       Federal law provides guidance where multiple terms of imprisonment are
imposed at the same time and at different times. 18 U.S.C. § 3584(a) provides:

      If multiple terms of imprisonment are imposed on a defendant at the same
      time, or if a term of imprisonment is imposed on a defendant who is
      already subject to an undischarged term of imprisonment, the terms may
      run concurrently or consecutively, except that the terms may not run
      consecutively for an attempt and for another offense that was the sole
      objective of the attempt. Multiple terms of imprisonment imposed at the
      same time run concurrently unless the court orders or the statute
      mandates that the terms are to run consecutively. Multiple terms of
      imprisonment imposed at different times run consecutively unless the
      court orders that the terms are to run concurrently.



                                         -5-
Cir. 2003) (“[A] district court [has] the authority to make a federal sentence

concurrent to a state sentence not yet imposed for pending state charges.”).

      Despite Wilkins’s attempt to argue otherwise, nothing in Williams implies

that the district court lacked authority to impose a concurrent sentence in this

case. Instead, Williams makes clear that when there are yet-to-be-imposed state

sentences, the decision of whether to impose a concurrent or consecutive federal

sentence lies in the discretion of the district court.

      The district court did note a circuit split in this area. 4 But the district court

had already made clear its view that Tenth Circuit law would allow a concurrent

sentence. The court simply concluded that despite its authority to impose a

concurrent sentence, such a sentence would not be appropriate in this case. See

R. Vol. II., Tr. Sentencing p. 4–5. (“Frankly, I don’t see much wisdom in that

particular way of doing things. Certainly not in this case. We don’t know in Mr.

Wilkins’ situation whether he’s even going to be convicted of any state court

violations or any state statutory violations. . . . [T]he last court to sentence is in

the best position to make a total determination concerning Mr. Wilkins.”

(emphasis added)).


      4
         The circuit split concerns whether district courts have authority to impose
consecutive sentences when there are yet-to-be-imposed state sentences. See
Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000) (recognizing the
division of courts of appeals “on the question whether a district court may require
its sentence to be served consecutively to a state sentence that will be imposed in
the future” and citing cases).

                                           -6-
       In sum, the record demonstrates that the district court recognized its

discretion to impose a concurrent sentence; it merely chose not to. Therefore, the

court did not err in assessing its authority. 5

                                       *     *    *

       For the foregoing reasons, we AFFIRM the judgment of the district court.

                                                      Entered for the Court

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




       5
         In its response brief, the government also contends the sentence was
substantively reasonable. But because Wilkins does not actually make arguments
on this ground, we decline to address the issue.


                                            -7-
