                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3628
                                   ___________

                                     *
United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Missouri.
Timothy Caldwell, also known as      *
William Allen,                       *
                                     *
            Appellant.               *
                                ___________

                             Submitted: June 11, 2003

                                 Filed: August 6, 2003
                                  ___________

Before MELLOY, HANSEN, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Timothy Caldwell was convicted of being a felon in possession of a firearm
(violating 18 U.S.C. §§ 922(g)(1) and 924(e)). At his sentencing, the district
court1–pursuant to Section 5G1.3 of the Sentencing Guidelines–ordered that
Caldwell's term of imprisonment run consecutively to his state parole revocation


      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
sentence. Caldwell appeals, arguing that his state parole revocation sentence should
run concurrently with his federal conviction. We affirm.

                                          I.
       On March 8, 1999, Caldwell was sentenced in a Missouri state court to four
years' imprisonment for a variety of burglary convictions. He was paroled on August
11, 2000. While under parole supervision, Caldwell tested positive for cocaine and
marijuana, was arrested for the state offenses of assault third degree and possession
of cocaine, absconded from supervision, and committed the instant federal offense.
Based on these violations, Caldwell's state parole was revoked on June 4, 2001.
Caldwell was remanded to the custody of the Missouri Department of Corrections to
complete his original four-year sentence.

      In the interim, Caldwell was tried and convicted in federal district court of
being a felon in possession of a firearm. On September 13, 2002, the district court
sentenced Caldwell to 240 months' imprisonment. The district court, relying upon
Section 5G1.3 of the Sentencing Guidelines, ordered Caldwell's federal term of
imprisonment to run consecutively to his state parole revocation sentence. Caldwell
appealed.




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                                           II.
                                       2
       Sentencing Guidelines § 5G1.3 provides a number of rules if a defendant is
convicted of a federal crime and has a prior undischarged term of imprisonment.
Specific to Caldwell’s case, Subsection (c) of § 5G1.3 states that the sentencing judge
has discretion to impose a sentence "concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment." U.S. Sentencing
Guidelines Manual § 5G1.3(c) (2001). However, if the defendant was on "federal or
state probation, parole, or supervised release at the time of the instant offense, and
[such status was] revoked, the sentence for the instant offense should be imposed to
run consecutively to the term imposed for the violation . . . in order to provide an
incremental penalty for the violation . . . ." Id. at cmt. n.6.



      2
          Section 5G1.3 provides:

             (a) If the instant offense was committed while the defendant was
      serving a term of imprisonment (including work release, furlough, or
      escape status) or after sentencing for, but before commencing service of,
      such term of imprisonment, the sentence for the instant offense shall be
      imposed to run consecutively to the undischarged term of imprisonment.

             (b) If subsection (a) does not apply, and 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.

             (c) (Policy Statement) In any other case, the sentence for the
      instant offense may be imposed to run concurrently, partially
      concurrently, or consecutively to the prior undischarged term of
      imprisonment to achieve a reasonable punishment for the instant
      offense.

U.S. Sentencing Guidelines Manual § 5G1.3 (2001).

                                           -3-
       Caldwell argues that this language provides the district court with the
discretion to order that a federal sentence and state parole revocation run
concurrently. However, we have previously rejected this argument and have held that
Section 5G1.3's language and commentary mandate that a federal sentence and state
parole revocation sentence must run consecutively. United States v. Smith, 282 F.3d
1045, 1047–48 (8th Cir. 2002); United States v. Goldman, 228 F.3d 942, 943–44 (8th
Cir. 2000).

       Caldwell does not attempt to distinguish this precedent, but instead relies upon
authority from the Second Circuit and the District Court for the Eastern District of
Pennsylvania. United States v. Maria, 186 F.3d 65, 70–74 (2d Cir. 1999); United
States v. McCulligan, No. 99-410-01, 2000 WL 1660033, at *4 (E.D. Pa. Nov. 3,
2000). However, given our rule prohibiting any panel from overruling binding
precedent, Caldwell’s argument must fail. See, e.g., United States v. Wilson, 315 F.3d
972, 973–74 (8th Cir. 2001) (stating only the court en banc can overrule an earlier
panel decision).

         Accordingly, for the foregoing reasons, we affirm the judgment of the district
court.

         A true copy.

               Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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