                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            APR 21 2005
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-1378
          v.                                         District of Colorado
 WILLIAM ALLEN COX,                              (D.C. No. 03-CR-444-RB)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.


      Defendant-Appellant William Allen Cox pled guilty to the charges in a

three-count federal indictment. Between the indictment and the plea in the

federal case, he pled guilty to second-degree murder in state court in Colorado.

In the federal case, he was sentenced to an aggregate sentence of 168 months, to


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
run consecutively to his sentence on the state charge, which had not yet been

imposed. Mr. Cox preserved an objection to the consecutive nature of the

sentence. In United States v. Williams , 46 F.3d 57 (10th Cir. 1995), this Court

held that it is permissible for a district court to order a sentence to run

consecutively to a possible future state sentence. There is a split among the

circuits on this issue, with the Second, Fifth, Eighth, and Eleventh Circuits

holding such sentences permissible, and the Ninth, Sixth, and Seventh Circuits

taking the opposite view.     Compare Salley v. United States , 786 F.2d 546, 547 (2d

Cir. 1986); United States v. Brown , 920 F.2d 1212, 1216-17 (5th Cir. 1991);

United States v. Mayotte , 249 F.3d 797, 799 (8th Cir. 2001); and       United States v.

Ballard , 6 F.3d 1502, 1510 (11th Cir. 1993),      with United States v. Quintero   , 157

F.3d 1038, 1039-41 (6th Cir. 1998);      Romandine v. United States , 206 F.3d 731,

737-39 (7th Cir. 2000); and     United States v. Clayton , 927 F.2d 491, 492-93 (9th

Cir. 1991).

       In his brief in this Court, Mr. Cox acknowledges that, because of the panel

ruling in Williams , “he cannot prevail on this issue at the Tenth Circuit panel

level, but will ask for a hearing   en banc in which he will ask the full Tenth

Circuit to review this issue.” He is correct about that. The panel can do nothing

for him, and will await with interest his petition for rehearing     en banc .




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     The judgment of the United States District Court for the District of

Colorado is therefore AFFIRMED .

                                             Entered for the Court,

                                             Michael W. McConnell
                                             Circuit Judge




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