                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 18 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 02-5111
 v.                                                D.C. No. 01-CR-118-H
                                                     (N.D. Oklahoma)
 NATHANIEL TURNER, JR.,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, BRISCOE and LUCERO, Circuit Judges.


      Convicted in federal court of being a felon in possession of a firearm and

ammunition, Nathaniel Turner, Jr., appeals the sentence imposed by the district

court. Specifically, Turner appeals the district court’s decision to impose only

part of the sentence concurrently with Turner’s undischarged state sentences. We

have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
                                          I

      On February 7, 2001, Turner was indicted in state court in Tulsa County,

Oklahoma on seven counts, including: (1) possession of a controlled drug with

intent to distribute within 2,000 feet of a public park; (2) possession of a firearm

while in the commission of a felony; (3) possession of a firearm after former

conviction of a felony; (4) feloniously pointing a weapon; and (5) knowingly

concealing stolen property. Following a plea agreement, the state dismissed all

counts except (1) and (5). Turner was sentenced to five-year prison terms on both

counts, which were imposed concurrently.

      Nine months after his state indictment, Turner was indicted in federal court

on one count of possessing two firearms and ammunition after a former felony

conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). One of the two

firearms that served as the basis for the federal charge, a Ruger 9mm pistol, was

the same firearm used as the basis for Count 5 of the state indictment, knowingly

concealing stolen property. On February 8, 2002, Turner pled guilty to the

federal charge and admitted having possessed two firearms following a prior

felony conviction.

      Following the guilty plea, a U.S. probation officer prepared a Presentence

Investigation Report (“PSR”). The PSR set the base offense level at twenty,

added two points because the Ruger pistol was stolen, added four more points


                                         -2-
because the firearm was used in connection with another felony offense (the state

drug conviction), and subtracted three points for acceptance of responsibility.

Turner’s total offense level was thus determined to be twenty-three. Based on a

total criminal history category of IV, the PSR arrived at a guideline range of

seventy to eighty-seven months’ imprisonment.

      Applying U.S.S.G. § 5G1.3(c), the PSR recommended that the federal

sentence run partially concurrent with the undischarged state sentences. Turner

filed an objection to the PSR, arguing that § 5G1.3(b) should be applied instead

of § 5G1.3(c) and the entire federal sentence should run concurrently with the

undischarged state sentences for drug possession and concealing stolen property.

Rejecting this argument, the district court held that subsection (b) was not

applicable because the state convictions had not been fully taken into account in

calculating the federal sentence. Applying subsection (c) of the same guideline,

the district court imposed a sentence of eighty-seven months, with forty-one

months of that sentence to run concurrently with the undischarged state sentences

because that portion of the federal sentence arose from the conduct that served as

the basis of his state conviction. The court imposed the remaining 46 months to

run consecutively to the state court case. Turner appeals the district court’s

application of § 5G1.3(c).




                                        -3-
                                          II

      We review the district court’s interpretation and application of the

Sentencing Guidelines de novo, and review the court’s factual determinations at

sentencing for clear error. United States v. McCarty, 82 F.3d 943, 950 (10th Cir.

1996). Both parties agree that U.S.S.G. § 5G1.3 applies to the instant case; the

question is whether the district court should have applied subsection (b) or

subsection (c). 1 Section 5G1.3 deals with the imposition of a sentence on a

defendant subject to an undischarged term of imprisonment. Under § 5G1.3(b),

where “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.” Thus, subsection (b)

applies only when the offense resulting in an undischarged term of imprisonment

was “fully taken into account” in determining the offense level for the federal

sentence.

      Ruling that Turner’s state convictions were not fully taken into account in

calculating the federal offense level, and therefore subsection (b) did not apply,

the district court instead imposed a sentence under subsection (c).

Section 5G1.3(c) provides that “[i]n any other case, the sentence for the instant


      1
          Neither party contends that § 5G1.3(a) applies to the instant case.

                                         -4-
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.” Turner argues that this was error,

and that the district court should have applied subsection (b). In essence, the

parties disagree over whether Turner’s state offenses were fully taken into

account in calculating the offense level for his federal conviction, as this

determines which subsection applies.

      We have interpreted subsection (b) to apply only when a defendant’s state

and federal convictions “involved the same course of conduct.” United States v.

Hurlich, 293 F.3d 1223, 1229 (10th Cir. 2002) (citing § 5G1.3 cmt. n.2). When

the federal offense is not based on the same course of conduct as the state

offense, the state offense was not “fully taken into account” in calculating the

federal sentence, and thus subsection (b) does not apply. Id. Moreover, if any

one of multiple offenses is not fully taken into account in the calculation of a

federal sentence, other circuits have held that § 5G1.3(c) may be applied. See,

e.g., United States v. Kimble, 107 F.3d 712, 715 (9th Cir. 1997); see also United

States v. Caraballo, 200 F.3d 20, 28 (1st Cir. 1999) (discussing the rationale for

this interpretation of the Guidelines). We agree with this conclusion.

      Turner contends that, as his federal offense level was increased because the

firearm was stolen, his state conviction for knowingly concealing stolen property


                                         -5-
was fully taken into account in calculating his federal offense level here. We

need not decide this issue, however, because Turner also faces an undischarged

state sentence for possession of a controlled drug with intent to distribute within

2,000 feet of a public park, which was not fully taken into account in calculating

his federal sentence. While the district court did not specifically rely on this drug

conviction at the sentencing hearing, “[w]e are free to affirm a district court

decision on any grounds for which there is a record sufficient to permit

conclusions of law, even grounds not relied upon by the district court.” United

States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation omitted).

      A conviction on drug charges does not involve the same course of conduct

as a firearm conviction. We have held that the mere fact that a particular firearm

that served as the basis for a federal charge was also used in the commission of a

state crime does not mean that the two crimes were based on the same course of

conduct. See, e.g., McCarty, 82 F.3d at 951 (“Increasing a defendant’s offense

level by noting that a defendant used a firearm to commit a previous felony does

not take into account the substantive aspects of the underlying felony any more

than noting that the felony occurred in the afternoon, on a sunny day or in an

urban area.”). This is true even where the district court imposed a four-level

departure for possessing a firearm in connection with another felony offense

(here, the drug charge). See Hurlich, 293 F.3d at 1226. Thus, Turner’s state


                                        -6-
conviction for drug possession near a park was not fully taken into account in the

calculation of his federal offense level, and the district court did not err in

imposing a partially concurrent sentence under § 5G1.3(c).

                                          III

      For the foregoing reasons, Turner’s sentence is AFFIRMED.


      The mandate shall issue forthwith.


                                                ENTERED FOR THE COURT




                                                Carlos F. Lucero
                                                Circuit Judge




                                          -7-
