PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4901

TIMOTHY M. MOSLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James M. Michael, Jr., Senior District Judge.
(CR-95-66)

Argued: October 26, 1999

Decided: December 30, 1999

Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marshall Moore Slayton, Charlottesville, Virginia, for
Appellant. Ray B. Fitzgerald, Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Charlottesville, Virginia, for
Appellee.

_________________________________________________________________
OPINION

PER CURIAM:

Timothy Mosley appeals his sentence imposed as a result of his
conviction of one count of conspiring to distribute cocaine base in
violation of 21 U.S.C.A. § 846 (West 1999). He claims that the dis-
trict court erred when it decided to run forty-eight months of his
seventy-two month sentence consecutively to, and the remaining
twenty-four months concurrently with, an undischarged term of
imprisonment he was serving as a result of a prior federal conviction.
He argues that, under the current version of § 5G1.3(c) of the United
States Sentencing Commission Guidelines Manual, 1 the district court
was required to add together the drug weights from the instant offense
and the drug weights from the offense for which he was serving an
undischarged prison term in order to create a hypothetical combined
guideline range that would have applied if he had been sentenced for
both drug crimes simultaneously. Mosley further asserts that the dis-
trict court was required to sentence him within that combined range.
Because we find that this suggested method of applying U.S.S.G.
§ 5G1.3(c) ignores the changes wrought to that section by Amend-
ment 535 to the Sentencing Guidelines, see U.S. Sentencing Guide-
lines Manual App. C (Nov. 1995), we hold that the district court was
not required to use Mosley's suggested method in making its decision
to impose a concurrent, partially concurrent, or consecutive sentence.
We, therefore, affirm Mosley's sentence.

I.

From January 1992 until November 30, 1995, Timothy Mosley was
part of a conspiracy to distribute cocaine base in Culpeper County,
Virginia. After being arrested and indicted for a violation of 21
U.S.C.A. § 846 (West 1999), Mosley pleaded guilty and was con-
victed in the United States District Court for the Western District of
Virginia. At the time of his sentencing on October 16, 1997, Mosley
was still serving a sentence of 121 months that the District Court for
the Eastern District of North Carolina, on January 13, 1997, had
_________________________________________________________________
1 The current version of § 5G1.3(c) can be found in the 1995 edition of
the guidelines manual and subsequent editions.

                    2
imposed for his participation in another conspiracy to distribute
cocaine base in Raleigh, North Carolina.

At Mosley's sentencing hearing on October 16, 1997, the district
court noted that, according to the presentence report's calculations
under the Sentencing Guidelines,2 Mosley's sentencing range was
from seventy to eighty-seven months. The court then sentenced Mos-
ley to a term of seventy-two months in prison followed by forty-eight
months of supervised release. It directed that of the seventy-two
months to be served in prison, forty-eight would run consecutively to
the sentence for the prior undischarged term of imprisonment, and the
remaining twenty-four would run concurrently with that sentence.

II.

On appeal, Mosley claims that the district court improperly applied
U.S.S.G. § 5G1.3(c) (1995) in deciding to run forty-eight months of
his sentence consecutively to, and twenty-four months concurrently
with, his prior undischarged term of imprisonment. 3 He argues that,
_________________________________________________________________
2 The presentence report used the 1995 edition of the U.S. Sentencing
Guidelines Manual, which incorporates guidelines amendments that, like
Amendment 535, became effective on November 1, 1995. Section 5G1.3
has not subsequently been amended.
3 Mosley raises additional claims that contain no factual basis in the
record. Specifically, he argues that in deciding whether to run his sen-
tence concurrently with, partially concurrently with, or consecutively to
his prior undischarged term of imprisonment, the district court errone-
ously heeded a recommendation by Mosley's probation officer to take
into consideration the fact that Mosley had been carrying a firearm in
violation of 18 U.S.C.A. § 924(c)(1)(A) (West Supp. 1999) during the
conduct that had resulted in his conviction in federal court in North Caro-
lina. Because he had not been charged with a violation of § 924(c)(1)(A),
Mosley argues that consideration of this uncharged offense in formulat-
ing the present sentence violates the Fifth Amendment's guarantee of due
process and its protection against double jeopardy. He also argues that
the uncharged conduct from the previous offense constitutes an irrelevant
factor that the district court should not have considered under § 5G1.3(c)
and 18 U.S.C.A. § 3584 (West 1985).

It is true that, during Mosley's sentencing hearing, his counsel made
a proffer, accepted as evidence by the district court, that Mosley's proba-

                    3
in order to create a reasonable punishment under§ 5G1.3(c), the dis-
trict court was required to add the drug weights from the instant
offense to the drug weights from the North Carolina offense in order
to create a hypothetical combined guideline range that would have
applied if he had been sentenced for both drug crimes simultaneously.
Mosley further asserts that the district court was required to sentence
him within that combined range. By choosing to run forty-eight
months of Mosley's sentence consecutively to his prior undischarged
term of imprisonment, the district court ensured that Mosley would
spend a total of 169 months in jail for the two offenses. Had the dis-
trict court created a hypothetical combined guideline range for both
crimes and sentenced him within that range, Mosley argues that the
hypothetical range would ensure that his total time in jail for the two
offenses would be 108-135 months -- at least thirty-four months less
than 169 months.4
_________________________________________________________________
tion officer had recommended to the court that it consider the uncharged
violation of § 924(c)(1) while determining whether Mosley should be
sentenced to a term that was concurrent, partially concurrent, or consecu-
tive to his prior undischarged sentence. However, the district court made
no indication that it actually considered the uncharged violation of
§ 924(c)(1) during its decision-making process. In fact, the district court
explicitly stated that it looked at Mosley's illegal conduct in Virginia as
an "independent separate offense." (J.A. at 52.) Furthermore, our own
thorough review of the record reveals no instance in which the district
court appeared to take into consideration the uncharged firearm offense
in its determination that Mosley's sentence should run partially concur-
rently with his prior undischarged term of imprisonment. Because Mos-
ley's additional claims are built on a factual assumption that finds no
support in the record, we necessarily decline his invitation to consider his
legal arguments that flow from that faulty assumption.
4 In his brief, Mosley arrives at a hypothetical guideline range of 108-
135 months by adding the drug weights from both crimes and then
adjusting his base offense level with factors such as his acceptance of
responsibility and his juvenile status during the North Carolina drug
offense. At Mosley's sentencing hearing, his defense counsel suggested
that the sentence for the instant offense run fully concurrently with the
sentence for the North Carolina offense, apparently on the ground that
his calculations produced a combined sentence of less than 121 months.
No matter what hypothetical guideline range Mosley's calculations may
produce, those calculations are irrelevant because our holding today
makes it clear that a district court need not undertake the mechanical pro-
cess of creating a combined hypothetical guideline range for a defendant
to whom § 5G1.3(c) applies.

                  4
The Government argues that the plain language of§ 5G1.3(c) and
its commentary does not require the district court to undertake the
mechanical process of creating a hypothetical combined guideline
range and then sentencing a defendant within that range; instead, the
district court need only engage in a factor analysis before deciding
whether to impose a sentence that is concurrent with, partially concur-
rent with, or consecutive to a prior undischarged term of imprison-
ment. It notes that the version of § 5G1.3(c) preceding Amendment
535 to the Sentencing Guidelines required district courts to create a
hypothetical combined guideline range and to ensure that a defen-
dant's combined term for both offenses did not exceed that range. See
U.S.S.G. § 5G1.3(c) (1994). However, it asserts that the current ver-
sion, which embodies the changes wrought by Amendment 535, only
requires courts to engage in a factor analysis before deciding whether
to impose a sentence that is concurrent with, partially concurrent with,
or consecutive to a prior undischarged term of imprisonment. For the
reasons set forth below, we agree with the Government's interpreta-
tion of § 5G1.3(c).

We review de novo the legal questions involving the application of
a guideline. See United States v. Blake, 81 F.3d 498, 503 (4th Cir.
1996). Whether a court erred in applying a guideline is a legal ques-
tion subject to de novo review. See United States v. Pillow, 191 F.3d
403, 407 (4th Cir. 1999); United States v. Hill , 59 F.3d 500, 502 (4th
Cir. 1995). In this case, we review whether the district court incor-
rectly applied § 5G1.3(c) by failing to create a combined hypothetical
sentencing range and then sentencing Mosley within that range.

Section 5G1.3 of the Sentencing Guidelines deals with the imposi-
tion of a sentence on a defendant who is subject to an undischarged
term of imprisonment. See U.S.S.G. § 5G1.3 (1995). Subsection (a)
of that guideline mandates a consecutive sentence for defendants who
commit an offense during a term of imprisonment or the period of
time between the sentencing of a prior offense and the beginning of
the imprisonment term for that offense. See U.S.S.G. § 5G1.3(a)
(1995). Subsection (b), which mandates a concurrent sentence,
applies in instances when subsection (a) does not and "the undis-
charged term of imprisonment resulted from offense levels that have
been fully taken into account in the determination of the offense level
of the instant offense." U.S.S.G. § 5G1.3(b) (1995). Subsection (c)

                    5
covers all other instances and, as the parties agree, is the relevant sub-
section for this case because neither (a) nor (b) applies to Mosley.
Subsection (c) reads as follows: "(Policy Statement) In any other case,
the sentence for the instant offense may be imposed to run concur-
rently, partially concurrently, or consecutively to the prior undis-
charged term of imprisonment to achieve a reasonable punishment for
the instant offense."5 U.S.S.G. § 5G1.3(c) (1995).

Application Note 3 of § 5G1.3, which addresses the application of
subsection (c), states that "[u]nder [subsection (c)], the court may
impose a sentence concurrently, partially concurrently, or consecu-
tively." U.S.S.G. § 5G1.3, comment. (n.3) (1995). It then instructs the
district court to consider two sets of factors. First, the district court
should consider the sentencing factors referred to by 18 U.S.C.A.
§ 3584 (West 1985) (referencing 18 U.S.C.A.§ 3553(a) (West 1985
& Supp. 1999)).6 See U.S.S.G. § 5G1.3(c), comment. (n.3) (1995).
Second, it should "be cognizant of" the following four factors:
_________________________________________________________________
5 Although § 5G1.3(c) is a policy statement, this Court enforces it like
a guideline. See United States v. Wiley-Dunaway , 40 F.3d 67, 70-71 (4th
Cir. 1994) ("[W]e . . . think it appropriate to enforce subsection (c) as if
it were a guideline, but in a manner that affords the degree of discretion
spelled out by the commentary and illustrations.").
6 18 U.S.C.A. § 3584 directs that a district court consider the factors set
forth in § 3553(a) when deciding whether terms imposed for sentences
should be run consecutively or concurrently. The factors listed by
§ 3553(a) are as follows:

          (1) the nature and circumstances of the offense and the history
          and characteristics of the defendant;

          (2) the need for the sentence imposed--

           (A) to reflect the seriousness of the offense, to promote
          respect for the law, and to provide just punishment for the
          offense;

           (B) to afford adequate deterrence to criminal conduct;

           (C) to protect the public from further crimes of the defen-
          dant; and

           (D) to provide the defendant with needed educational or
          vocational training, medical care, or other correctional treatment
          in the most effective manner;

                     6
         (a) the type (e.g., determinate, indeterminate/parolable)
         and length of the prior undischarged sentence;

         (b) the time served on the undischarged sentence and the
         time likely to be served before release;

         (c) the fact that the prior undischarged sentence may have
         been imposed in state court rather than federal court, or at
         a different time before the same or different federal court;
         and

         (d) any other circumstance relevant to the determination of
         an appropriate sentence for the instant offense.

Id.
_________________________________________________________________
        (3) the kinds of sentences available;

         (4) the kinds of sentence and the sentencing range established
         for--

          (A) the applicable category of offense committed by the
         applicable category of defendant as set forth in guidelines issued
         by the Sentencing Commission pursuant to section 994(a)(1) of
         title 28, United States Code, and that are in effect on the date the
         defendant is sentenced; or

          (B) in the case of a violation of probation or supervised
         release, the applicable guidelines issued by the Sentencing Com-
         mission pursuant to section 994(a)(3) of title 28, United States
         Code;

         (5) any pertinent policy statement issued by the Sentencing
         Commission pursuant to 28 U.S.C. § 994(a)(2) that is in effect
         on the date the defendant is sentenced;

         (6) the need to avoid unwarranted sentence disparities among
         defendants with similar records who have been found guilty of
         similar conduct; and

         (7) the need to provide restitution to any victims of the offense.

18 U.S.C.A. § 3553(a).

                   7
Nowhere in § 5G1.3(c) do we find a requirement that a district
court must fashion a hypothetical combined guideline range for a
defendant with a prior undischarged term of imprisonment and sen-
tence him within that range. A district court's decision to impose a
sentence that runs concurrently with, partially concurrently with, or
consecutively to a prior undischarged term of imprisonment is con-
strained only by its consideration of the factors mentioned in the com-
mentary to § 5G1.3(c).

Before the effective date of Amendment 535, § 5G1.3(c) read as
follows: "(Policy Statement) In any other case, the sentence for the
instant offense shall be imposed to run consecutively to the prior
undischarged term of imprisonment to the extent necessary to achieve
a reasonable incremental punishment for the instant offense."
U.S.S.G. § 5G1.3(c) (1994). The former Application Note 3, which
addressed the application of the old § 5G1.3(c), offered district courts
the following instruction:

          To the extent practicable, the court should consider a rea-
          sonable incremental penalty to be a sentence for the instant
          offense that results in a combined sentence of imprisonment
          that approximates the total punishment that would have been
          imposed under § 5G1.2 (Sentencing on Multiple Counts of
          Conviction) had all of the offenses been federal offenses for
          which sentences were being imposed at the same time.

U.S.S.G. § 5G1.3(c), comment. (n.3) (1994). The former version of
§ 5G1.3(c) also included illustrations that showed how to use hypo-
thetical combined sentencing ranges to sentence defendants with prior
undischarged terms of imprisonment. See id.

In cases involving the version of § 5G1.3(c) that preceded Amend-
ment 535's effective date of November 1, 1995, we have required that
a district court create a hypothetical combined guideline range for a
defendant and sentence the defendant within that range. See, e.g.,
United States v. Myers, 66 F.3d 1364, 1376-78 (4th Cir. 1995) (over-
turning a defendant's sentence because the district court "did not even
attempt to come within [the defendant's] combined guideline range as
prescribed in [former] U.S.S.G. § 5G1.3, but rather exceeded it by
453 months"); United States v. Hill, 59 F.3d at 502-03 (holding that

                    8
former § 5G1.3(c) and its commentary require a district court to deter-
mine the sentencing range that would exist if the defendant were
being sentenced simultaneously for the instant offense and the offense
for which the defendant is serving an undischarged prison term;
"[t]hen, considering the time served and the time remaining on the
undischarged sentence, the court should impose a term of imprison-
ment within the instant offense guideline range that results in a total
punishment that is within the combined guideline range."); United
States v. Wiley-Dunaway, 40 F.3d 67, 71 (4th Cir. 1994) (illustrating
the manner in which a district court should use the version of
§ 5G1.3(c) preceding Amendment 535 to create a hypothetical com-
bined guideline range for a defendant serving a prior undischarged
term of imprisonment and attempt to sentence the defendant within
that range). These rulings, however, were based on a reading of the
language of § 5G1.3(c) and its commentary before that language was
changed by Amendment 535.7 These cases did not address the means
by which district courts are to apply the current version of § 5G1.3(c).

The language of § 5G1.3(c) was significantly altered by Amend-
ment 535, and its commentary and illustrations were specifically
deleted and replaced with current Application Note 3, which describes
the factor analysis district courts are to undertake when deciding to
run a sentence concurrently, partially concurrently, or consecutively.
It is clear that, by no longer requiring district courts to engage in the
mechanical process of creating a hypothetical combined guideline
range for a defendant with a prior undischarged term of imprisonment
and then sentencing the defendant within that combined range, the
current version of § 5G1.3(c) affords district courts more discretion
than the version that existed before the effective date of Amendment
535.8 After all, the wording of the current version ("the sentence . . .
_________________________________________________________________
7 Even under the version of § 5G1.3(c) that did not include the changes
made by Amendment 535, see U.S.S.G. § 5G1.3(c) (1994), district courts
were certainly not stripped of all their discretion in determining whether
to run a sentence concurrently with, partially concurrently with, or con-
secutively to the prior undischarged term of imprisonment. A sentencing
court could deviate from the procedures of the prior version of
§ 5G1.3(c) if it sufficiently articulated a reason on the record for doing
so. See United States v. Stewart, 59 F.3d 496, 498 (4th Cir. 1995).
8 We note that, in United States v. Goudy, 78 F.3d 309 (7th Cir. 1996),
a case involving the former version of § 5G1.3(c), the Seventh Circuit

                    9
may be imposed to run concurrently, partially concurrently, or con-
secutively to the prior undischarged term of imprisonment to achieve
a reasonable punishment for the instant offense") certainly provides
district courts more discretion than the wording of the former version
("the sentence . . . shall be imposed to run consecutively to the prior
undischarged term of imprisonment to the extent necessary to achieve
a reasonable incremental punishment for the instant offense"). More-
over, Amendment 535 specifically states that its purpose in regard to
§ 5G1.3(c) is to "afford[ ] the sentencing court additional flexibility
to impose, as appropriate, a consecutive, concurrent, or partially con-
current sentence in order to achieve a reasonable punishment for the
instant offense." U.S.S.G. App. C, Amend. 535 (1995); see also
United States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 1998) (noting
that Amendment 535 gives sentencing courts even more discretion
than before in deciding whether to impose a consecutive, concurrent,
or partially concurrent sentence under § 5G1.3(c)); United States v.
Luna-Madellaga, 133 F.3d 1293, 1294-96 (9th Cir.) (rejecting defen-
dant's argument that the district court was required to calculate a
hypothetical combined guideline range under § 5G1.3(c) in the after-
math of Amendment 535 and holding that the district court should
instead refer to the factors mentioned by the guideline in determining
whether to impose a concurrent, partially concurrent, or consecutive
sentence), cert. denied, 118 S. Ct. 2073 (1998).
_________________________________________________________________

stated, in dicta, that Amendment 535 clarified, rather than expanded, a
district court's already existing discretion under the former version of
§ 5G1.3(c) to fashion a partially concurrent sentence for a defendant by
"delay[ing] [the] commencement of the concurrent sentence in order to
arrive at the appropriate sentence." Id. at 314. However, Goudy made no
intimation that the language of the former version of § 5G1.3(c) gave a
district court the discretion to disregard completely the methodology of
creating a combined hypothetical sentencing range in order to create an
appropriate sentence for a defendant serving an undischarged term of
imprisonment. Indeed, in upholding the district court's decision to delay
the start of a defendant's partially concurrent sentence under the former
§ 5G1.3(c), the Goudy court made it clear that the "appropriate sentence"
at which the district court was trying to arrive was one that it had created
by formulating a hypothetical combined sentencing range. See id. at 313-
14.

                    10
We now hold what the language of the current version of
§ 5G1.3(c) makes abundantly clear: When using the 1995 or later edi-
tions of the U.S. Sentencing Guidelines Manual , a district court is not
required to calculate a hypothetical combined guideline range under
§ 5G1.3(c) for a defendant who is serving an undischarged term of
imprisonment and then sentence the defendant within that range.
Instead, a district court need only consider the relevant factors that
§ 5G1.3(c) directs it to consider. Therefore, Mosley's suggested
means of applying § 5G1.3(c) is incorrect, and the district court was
correct not to apply § 5G1.3(c) in the manner suggested by Mosley.9

III.

For the foregoing reasons, we affirm Mosley's sentence.

AFFIRMED
_________________________________________________________________

9 On this appeal, Mosley does not argue that the district court failed to
consider the relevant factors. Indeed, he would have been hard-pressed
to do so. For example, the record shows that the court mentioned the type
and length of Mosley's prior sentence, that the prior sentence was
imposed in federal court, Mosley's criminal history, and the sentencing
range for the instant offense. The court also mentioned that it knew Mos-
ley from prior court proceedings.

Additionally, we note that the Government stressed at the sentencing
hearing that, if the court accepted defense counsel's proposal to make
Mosley's 72-month sentence fully concurrent with his prior undischarged
term of imprisonment, that sentence would be submerged within the 121-
month sentence imposed earlier that year for the North Carolina drug
offense. Therefore, the district court was on notice that, with a fully con-
current sentence, Mosley would effectively serve no prison time for his
participation in the drug conspiracy in Culpeper County.




                    11
