219 F.3d 592 (7th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.NICHOLAS J. ROSS,  Defendant-Appellant.
No. 98-2345
In the  United States Court of Appeals  For the Seventh Circuit
Submitted May 3, 2000*Decided July 5, 2000

Appeal from the United States District Court   for the Northern District of Indiana, Hammond Division.  No. 2:95 CR 109-01--Rudy Lozano, Judge.
Before Posner, Chief Judge, and Diane P. Wood and  Evans, Circuit Judges.
Diane P. Wood, Circuit Judge.


1
Nicholas Ross  pleaded guilty in 1997 to possession of a firearm  by a felon. Ever since then, Ross has steadfastly  maintained that the district court should have  imposed a sentence under the Armed Career  Criminal Act that reflected a reduction of 34  months, to account for the time he spent  imprisoned on a related state burglary conviction  before his federal sentencing. The district  court, thinking that the Bureau of Prisons  ("BOP") would give Ross credit for the 34 months  in question, imposed a term of 188 months on the  understanding that Ross would actually serve only  154 more months in federal custody. Ross, who was  pro se at sentencing, appealed and argued that  the district court should have credited the time  directly. Twice we rejected appointed appellate  counsel's characterization of Ross's appeal as  frivolous. The third time has proven to be the  charm for Ross. The second new lawyer, agreeing  with Ross, has presented the argument that the  sentencing court committed reversible error. The  government has confessed error. We accept its  concession and remand for resentencing.


2
Ross broke into an Indiana home in July 1994  and stole a .25 caliber Beretta handgun. He was  later apprehended while driving a stolen van, and  the officers found the Beretta in the waistband  of his pants. This led to state charges of  residential burglary, to which Ross pleaded  guilty; for this, he ultimately received a state  sentence of 20 years' imprisonment. Before  sentencing on the burglary conviction, a federal  grand jury returned a two-count indictment,  charging Ross with possession of a firearm by a  felon, 18 U.S.C. sec. 922(g)(1), and possession  of a stolen firearm, 18 U.S.C. sec. 922(j)--the  same Beretta handgun. At the time Ross committed  the burglary, he had three prior violent felony  convictions, rendering him eligible for a 15-year  mandatory minimum sentence under the Armed Career  Criminal Act, 18 U.S.C. sec. 924(e)(1). Ross  pleaded guilty to the sec. 922(g)(1) charge, and  the sec. 922(j) charge was later dismissed on the  government's motion. By the time the district  court sentenced Ross, he had already served 34  months on the undischarged state sentence.


3
At sentencing, Ross argued that U.S.S.G. sec.  5G1.3(b) required the court to impose his federal  sentence concurrently with the undischarged  residential burglary sentence. Ross further  argued that Application Note 2 to sec. 5G1.3  required the court to reduce his presumptive  federal sentence by the 34 months he had already  served on the undischarged state sentence. The  district court, without objection from the  government, agreed on both points. The court  properly ordered the federal prison term to run  concurrently with the remainder of the state  prison term based on its determination that  Ross's burglary conviction was "fully taken into  account" in the offense level calculation. See,  e.g., United States v. Bell, 28 F.3d 615, 618-19  (7th Cir. 1994); United States v. Evans, 1 F.3d  654, 654 (7th Cir. 1993) (per curiam). But  instead of sentencing Ross to 154 months, as Ross  had argued was appropriate, the court sentenced  Ross to 188 months and attempted to order the BOP  to give Ross a 34-month credit against that term.  It was this step in the process that Ross claims  was error, and the government now agrees with  him. Ross notes that the BOP not only has not  given him credit, but worse, that 18 U.S.C. sec.  3585(b) bars it from doing so, because the state  had already credited the 34 months against his  state sentence.


4
Ross is correct. The district court had no  authority to order the BOP to give Ross the  credit because that authority rests exclusively  with the BOP. See United States v. Wilson, 503  U.S. 329 (1992); United States v. McGee, 60 F.3d  1266, 1272 (7th Cir. 1995). Even if the BOP had  desired to effectuate the sentencing court's  intent, it could not have done so because sec.  3585(b) forbids the BOP from giving credit for  presentence custody when that credit has been  applied against another sentence. See United  States v. Walker, 98 F.3d 944, 945 (7th Cir.  1996). And here, the state obviously was giving  Ross credit for his time served in state prison  on a state sentence. Under these circumstances,  Application Note 2 to sec. 5G1.3 directs the  sentencing court to credit the otherwise  applicable guideline term of imprisonment. See  Bell, 28 F.3d at 618-19; see also United States  v. Dorsey, 166 F.3d 558, 563 (3d Cir. 1999);  United States v. Drake, 49 F.3d 1438, 1440 (9th  Cir. 1995); United States v. Kiefer, 20 F.3d 874,  875-76 (8th Cir. 1994). Therefore, we agree with  Ross that Application Note 2 to sec. 5G1.3  required the sentencing court to reduce by 34 his  188-month guideline sentence and impose a net  sentence of 154 months.


5
One further issue requires our attention. Ross,  as an armed career criminal, was subject to a 15-  year mandatory minimum sentence under 18 U.S.C.  sec. 924(e)(1). On the surface of things, it  would appear that the requirement of Application  Note 2 to apply the 34-month credit to Ross's  sentence would have left his net sentence 26  months short of the statutorily required 15-year  minimum term. In our view, however, such a  conclusion would exalt form over substance.  Ross's total sentence for purposes of sec. 924(e)  should be viewed as the sum of the sentence  reflected on the federal district court's order  of judgment (which here said 188 months, but  should have said the 154 months the judge  intended he should actually serve) plus the 34  months he has already served for the "conduct  taken into account in determining the guideline  range." The effect of sec. 924(e) is to require  that the total of the time served plus the  federal sentence cannot be less than 180 months  (the mandatory 15-year period), but Ross's total  is 188 months, comfortably above that range. Two  other circuits have come to the same conclusion  on similar facts. See Drake, 49 F.3d at 1440-41;  Kiefer, 20 F.3d at 876-77. As the Kiefer court  pointed out, the language of sec. 924(e)  stipulates that an armed career criminal like  Ross "shall be . . . imprisoned not less than  fifteen years." The statute does not specify any  particular way in which that imprisonment should  be achieved. The district courts are empowered  under the Sentencing Guidelines to adjust the  concurrent or consecutive nature of federal  sentences so as to produce the correct total  punishment. See U.S.S.G. sec.sec. 5G1.2, 5G1.3.  The Guidelines take the additional step in sec.  5G1.3 of specifying how undischarged terms of  imprisonment should be taken into account to  achieve the correct result. Application Note 2  goes further and specifies that the credit so  given is not a departure from the guideline  range; it is simply another way of achieving the  required period of imprisonment. (A departure  below the statutory mandatory minimum would be  prohibited, unless the defendant qualified for  safety valve treatment, 18 U.S.C. sec. 3553(f),  or the government moved for a departure based on  substantial assistance, 18 U.S.C. sec. 3553(e).  See United States v. Smallwood, 188 F.3d 905, 916  (7th Cir. 1999); United States v. Arrington, 73  F.3d 144, 147 (7th Cir. 1996).)


6
We conclude the computation of the total term  of imprisonment for purposes of sec. 924(e) may,  consistently with Application Note 2 to sec.  5G1.3, be accomplished by adding up the number of  months the defendant has served on the related  conviction and the number of months assessed in  the federal judgment. The total must equal or  exceed the statutory mandatory minimum of 180  months. On remand, the sentencing court shall  give Ross the full 34-month credit for the time  he served on the undischarged state sentence and  amend the total in the federal sentence  accordingly.


7
For these reasons, we Vacate Ross's sentence and  Remand for resentencing.



Note:


*
  After an examination of the briefs and the  record, we concluded that oral argument was  unnecessary. Thus, the appeal was submitted on  the briefs and the record. See Fed. R. App. P.  34(a)(2).


