                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           JUN 3 1997

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 96-4099
 v.                                                (D.C. No. 94-CR-107)
                                                         (D. Utah)
 ROBERT ALAN THOMAS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, LOGAN and KELLY, Circuit Judges.



      Robert Alan Thomas owned and operated a California-based computer

bulletin board system from which users could download graphic files from among

thousands of pornographic images on the system. Mr. Thomas was arrested in

February 1994, convicted on July 28, 1994 by a jury in the Western District of

Tennessee of several counts of distributing obscenity via his bulletin board in


      *
       This order and judgment is not binding precedent, except under the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.
violation of 18 U.S.C. § 1465, and sentenced to 37 months in prison. On July 20,

1994, Mr. Thomas was indicted in the District of Utah for several counts relating

to the distribution of child pornography via his bulletin board in violation of 18

U.S.C. §§ 2252(a)(1) and 2. Mr. Thomas moved to dismiss the Utah indictment

on the grounds of collateral estoppel and double jeopardy arising out of his

Tennessee prosecution and sentencing, and on the grounds that the government’s

previous return of the pornographic materials to Mr. Thomas made the subsequent

prosecution an entrapment by estoppel. After the denial of his several motions to

dismiss, Mr. Thomas entered a conditional guilty plea on one of the counts in the

indictment and was sentenced to 26 months in prison to run concurrently with his

Tennessee sentence. Mr. Thomas now appeals, reasserting his various claims of

preclusion and also asserting the district court erred in not departing downward at

sentencing.

      The district court order denying Mr. Thomas’ motion to dismiss for

collateral estoppel and double jeopardy is thorough and well-reasoned. Applying

the standard for collateral estoppel laid out in United States v. Rogers, 960 F.2d

1501, 1507-08 (10th Cir. 1992), the district court noted that none of the images

which form the basis of the Utah indictment were the basis of the Tennessee

charges, and that the Tennessee jury made no findings regarding child

pornography on the bulletin board. The district court determined that the


                                         -2-
Tennessee sentencing judge made no findings with regard to child pornography on

Mr. Thomas’ bulletin board, and concluded that the forfeiture of his equipment

was similarly not based on any findings with regard to child pornography on the

bulletin board. 1 We adopt the reasoning of the district court to hold that collateral

estoppel and double jeopardy arising out of the Tennessee proceedings are not

implicated in the Utah prosecution. 2

      Mr. Thomas also argues he was entitled to a downward departure at

sentencing so that the combined imprisonment for the Tennessee and Utah

convictions would approximate the sentence he would have gotten if he had been

sentenced for both convictions at the same time (“coterminously”). The Utah

      1
       As the district court observed, the discussion of child pornography in the
Tennessee sentencing appears to concern Mr. Thomas’ receipt of magazines
containing child pornography, a count on which the jury acquitted him.
      2
        Mr. Thomas also asserts that the Utah prosecution constitutes entrapment
by estoppel.
       The defense of entrapment by estoppel is implicated where an agent
       of the government affirmatively misleads a party as to the state of the
       law and that party proceeds to act on the misrepresentation so that
       criminal prosecution of the actor implicates due process concerns
       under the Fifth and Fourteenth amendments.
United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994). The government
contends Mr. Thomas’ entrapment argument is not properly before this court
because it was not one of the issues preserved in his conditional plea, and thus is
waived. Both the plea transcript, aplt.’s app. at 301, and the Statement by
Defendant in Advance of Plea of Guilty, aplee.’s app. at 4, reflect Mr. Thomas
reserved the right to appeal only the rulings on double jeopardy and collateral
estoppel. In any event, we are not persuaded that the government’s prior actions
in returning to Mr. Thomas the material forming the basis for the prosecution rise
to the affirmative misrepresentation required to establish entrapment by estoppel.

                                         -3-
court instead sentenced Mr. Thomas concurrently with the Tennessee sentence. 3

The imposition of sentence is committed to the sound discretion of the sentencing

court. Generally, we lack jurisdiction to review the sentencing court’s

discretionary refusal to downward depart. United States v. Bromberg, 933 F.2d

895, 896 (10th Cir. 1991). However, we do review the sentencing court’s

decision to ensure that the sentence imposed is not the result of an incorrect

application of the guidelines or otherwise in violation of the law. Id. at 897. In

particular, we review the decision not to depart to ensure that the decision was not

based on the district court’s erroneous belief that it lacked the legal power to

depart. United States v. Davis, 900 F.2d 1524, 1530 n.7 (10th Cir. 1990).

      After review of the sentencing transcript, we are persuaded that the district

court recognized its power to depart downward in this case. The court did in fact

depart downward one month to credit Mr. Thomas for delays associated with the

sentencing process. The court was simply unconvinced that the prior

undischarged sentence was a sufficient factor to remove the case from the

heartland of the Guidelines. In addition, the imposition of a concurrent sentence

does not violate any specific guideline provision. Mr. Thomas relies on U.S.S.G.


      3
       In practical effect, a sentence calculated coterminously would mean Mr.
Thomas would be released upon the conclusion of the undischarged Tennessee
sentence. Instead, the Utah sentence runs concurrently with the Tennessee
sentence from the date of the Utah sentencing, and Mr. Thomas thereafter would
remain in custody for the undischarged portion of the Utah sentence.

                                         -4-
§ 5G1.3(c) (policy statement) (effective Nov. 1, 1995), which states that “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.” Neither the text nor the

commentary to this provision suggest that the sentences are to be calculated

coterminously, or that a downward departure is either required or encouraged to

achieve such a coterminous sentence. 4 The decision not to depart downward is

not premised on an error of law, and is otherwise unreviewable.

      We AFFIRM.


                                              ENTERED FOR THE COURT

                                              Stephanie K. Seymour
                                              Chief Judge




      4
        Mr. Thomas’ argument appears to be premised on the application notes to
the former version of § 5G1.3(c), in effect before November 1, 1995, which stated
that, “a reasonable incremental penalty [is] a sentence for the instant offense that
results in a combined sentence of imprisonment that approximates the total
punishment that would have been imposed . . . had all the offenses been federal
offenses for which sentences were being imposed at the same time.” U.S.S.G. §
5G1.3 app. note 3 (1994). Although the same note states that no departure is
required, if the old guideline applied to Mr. Thomas, it is arguable that the
district court may have erred in failing to consider the coterminous methodology
to determine if a downward departure was warranted. Cf. United States v.
Johnson, 40 F.3d 1079, 1083-84 (10th Cir. 1994). The applicable version of the
guideline, however, omits reference to the coterminous methodology.

                                        -5-
