                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3566
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Bruce Wayne Hurley,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 12, 2005
                                Filed: March 13, 2006
                                 ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

BYE, Circuit Judge.

       Bruce Wayne Hurley pleaded guilty to conspiracy to distribute
methamphetamine in violation of 18 U.S.C. § 371 and 21 U.S.C. § 841(a)(1), and use
of a communication facility in the commission of a felony in violation of 21 U.S.C.
§ 843(b). The district court1 sentenced him to ninety months of imprisonment. Hurley
appeals his sentence contending the district court misapplied United States Sentencing
Guideline (U.S.S.G.) § 5G1.3 by failing to give him credit for time spent in custody
on a related state sentence. We affirm.

      1
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
                                            I

      On back-to-back days in January 2002 (January 23 and 24), Hurley sold
methamphetamine to a confidential informant working with an Arkansas state drug
task force. The State of Arkansas charged Hurley with delivery of a controlled
substance based on the January 23 transaction. He pleaded guilty to that charge and
received a sentence of forty-eight months; thirty-six months were suspended to run
consecutive to a state parole violation.

       The United States also brought charges against Hurley for illegal conduct which
included the same two drug transactions. Hurley entered into a plea agreement with
the government stipulating to a drug amount which excluded the drugs involved on
January 23. Under the plea agreement, the parties contemplated Hurley would receive
a sentence of 108 months.

       At the time of sentencing, Hurley requested the district court give him credit for
thirty-two months2 served on the related state charge pursuant to § 5G1.3. Concluding
§ 5G1.3 did not apply, the district court gave Hurley no credit for time served on the
state sentence, but also did not impose the 108 month sentence contemplated by the
plea agreement. Instead, the district court imposed a sentence of sixty months on the
drug conspiracy count (which carried a five-year maximum) and a consecutive thirty-
month sentence on the second count to accomplish a total sentence of ninety months,
which fell within the advisory guideline range of 77- 96 months as calculated by the
district court. Hurley filed a timely appeal challenging only the district court's failure
to give him credit for time served on the related state charge pursuant to § 5G1.3.




      2
       Hurley's appellate counsel was unable to explain how Hurley's trial counsel
arrived at this figure, but we assume the thirty-two month figure included twelve
months of actual jail time Hurley had served on the related state charge.

                                           -2-
                                           II

       Reviewing the district court's interpretation and application of § 5G1.3 de novo,
United States v. Salter, 418 F.3d 860, 862 (8th Cir. 2005), we conclude § 5G1.3 does
not apply to Hurley's situation. Section 5G1.3 requires a federal sentence be run
concurrent to an undischarged term of imprisonment3 and the defendant be given
credit for any time already served on an undischarged term of imprisonment only
when two conditions are met: 1) the "term of imprisonment resulted from another
offense that is relevant conduct to the instant offense of conviction under the
[Guidelines' Relevant Conduct provisions;]" and 2) that relevant conduct "was the
basis for an increase in the offense level for the instant offense under Chapter Two
(Offense Conduct) or Chapter Three (Adjustments)." U.S.S.G. § 5G1.3(b)(1) & (2).

      The second condition was not present here. Hurley's conduct on January 23
was not the basis for an increase in his offense level because the amount of drugs to
which he stipulated in his plea agreement did not include the amount involved in the
January 23 transaction. The mere fact the federal conspiracy charge encompassed a
time period during which the state offense occurred had no effect on Hurley's offense
level under the guidelines, a prerequisite to triggering the credit-for-time-served
provisions of § 5G1.3(b).

      Hurley further contends the district failed to recognize its authority to reduce
the sentence under § 5G1.3(c), if not § 5G1.3(b). This argument is a non-starter
because it has a flawed premise. Subsection (c) does not allow a court to reduce a


      3
       Since we conclude § 5G1.3 does not apply in any event, we need not decide
whether Hurley was under an "undischarged term of imprisonment" after he had
already served the twelve months of actual jail time on the forty-eight month state
sentence. Cf. French v. United States, 46 F.3d 710, 717 (8th Cir. 1995) (interpreting
South Dakota law and concluding a person released on parole is considered subject
to an undischarged term of imprisonment for purposes of § 5G1.3).

                                          -3-
sentence directly, which is what Hurley requested. Subsection (c) only allows a court
to run a sentence "concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment." U.S.S.G. § 5G1.3(c). In other words, a
defendant's total punishment may be indirectly reduced if a court runs a federal
sentence concurrent or partially concurrent to a prior undischarged term of
imprisonment. But doing so does not directly reduce the length of the federal
sentence. Hurley wanted the district court to directly reduce the length of his sentence
by giving him credit for time already served on the state offense. There is no
provision under § 5G1.3(c) for granting credit for time served.

                                          III

      We affirm the judgment of conviction and sentence in all respects.
                      ______________________________




                                          -4-
