                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3346
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Preston McMorris,                       * [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 13, 2007
                                Filed: May 23, 2007
                                 ___________

Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.
                              ___________

PER CURIAM.

       Preston McMorris appeals the eighty-six month sentence he received on
resentencing for being a felon in possession of a firearm. The resentencing followed
a remand by this court to correct an ex post facto violation in McMorris's first
sentence. See United States v. McMorris, 180 F. App'x 631, 632 (8th Cir. 2006).
McMorris now argues the district court1 erred by applying a cross-reference to United
States Sentencing Guideline (U.S.S.G.) § 2A2.1(a)(2) (2003) (assault with intent to
commit murder) pursuant to U.S.S.G. § 2K2.1(c)(1), erred by failing to depart

      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
downward fourteen months to reflect credit for time served in state custody on
subsequently dismissed state charges arising out of the same incident that formed the
basis for this federal charge, and engaged in vindictive resentencing by applying a
three-level upward adjustment under U.S.S.G. § 3A1.2(b)(1) that was not used to
calculate his first sentence. We affirm.

       The parties agree the cross-reference to U.S.S.G. § 2A2.1(a)(2)2 turns on
whether McMorris acted with "malice aforethought" when he "used or possessed any
firearm or ammunition in connection with the commission or attempted commission
of another offense." U.S.S.G. § 2K2.1(c)(1). Malice aforethought is established by
showing

      the defendant's intent at the time of a killing willfully to take the life of
      a human being or an intent willfully to act in callous and wanton
      disregard of the consequence of human life. Malice may be established
      by evidence of conduct which is reckless and wanton, and a gross
      deviation from a reasonable standard of care, of such a nature that a jury
      is warranted in inferring that defendant was aware of a serious risk of
      death or serious bodily harm.

United States v. Johnson, 879 F.2d 331, 334 (8th Cir. 1989) (quotations and citation
omitted).

       The facts indicate McMorris and another person fled from undercover police
officers in a high speed chase over the course of about twenty city blocks in St. Louis,
Missouri. During the chase, the undercover officers (in four vehicles) activated their
lights and sirens. McMorris's car stopped and McMorris ran into the yard of a


      2
        Under the 2003 version of the guidelines applicable in this case, U.S.S.G.
§ 2A2.1 sets forth a base offense level of 28 "if the object of the offense would have
constituted first degree murder," and a base offense level of 22 "otherwise." The
district court applied a base offense level of 22 under the "otherwise" provision.

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residence with the police pursuing on foot. McMorris grabbed a gun located in the
yard and fired at least three shots at the officers from a distance of fifty or sixty feet.
McMorris stipulated he fired the gun at the officers pursuing him. Reviewing the
district court's factual findings for clear error, see United States v. Mack, 452 F.3d
744, 745-46 (8th Cir. 2006) (standard of review); United States v. Lincoln, 589 F.2d
379, 381 (8th Cir. 1979) ("[T]he question of defendant's intent [is] an issue of fact"),
we cannot say the district court clearly erred in finding McMorris acted with malice
aforethought and therefore did not err in cross-referencing U.S.S.G. § 2A2.1(a)(2)
when calculating McMorris's base offense level. Cf. United States v. Wilson, 992
F.2d 156, 158 (8th Cir. 1993) (affirming the more punitive cross reference for assault
with intent to commit first degree murder under U.S.S.G. § 2A2.1(a)(1) where the
defendant fired a shotgun out of a vehicle toward a group of people and hit a
bystander).

       Second, the district court did not err in failing to depart downward fourteen
months to reflect credit for the time McMorris served in state custody, because the
issue of credit for time "spent in state custody pending trial on subsequently dismissed
state charges arising out of the same incident for which [defendants] were convicted
in federal court" is an issue "to be determined by the United States Attorney General
after the criminal defendant has begun to serve his sentence rather than by a federal
district court at the time of sentencing." United States v. Moore, 978 F.2d 1029, 1030-
31 (8th Cir. 1992) (addressing the application of 18 U.S.C. § 3585(b) with respect to
determinations of credit for time served). The Attorney General has delegated
authority to grant credit for time served to the Bureau of Prisons. Id. at 1031 (citing
28 C.F.R. § 0.96 (1990)). As a consequence, the "district court correctly left this
credit calculation for time served issue to the Bureau of Prisons." United States v.
Pardue, 363 F.3d 695, 699 (8th Cir. 2004).3

      3
       "Administrative procedures exist within the Bureau of Prisons to review the
Bureau's failure to credit the time [McMorris] has served, should such occur." Pardue,
363 F.3d at 699. Thus, if the Bureau of Prisons fails to credit the time after a prisoner

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       Finally, the district court did not engage in vindictive resentencing by applying
a three-level upward adjustment under U.S.S.G. § 3A1.2(b)(1) that was not used to
calculate McMorris's first sentence, because McMorris's second sentence was shorter
than his first (even though arrived at in a different manner). "A second sentence that
is harsher than the first is the 'sine qua non' of a Pearce4 vindictiveness claim." United
States v. Vontsteen, 950 F.2d 1086, 1092 (5th Cir. 1992) (quoting Hardwick v.
Doolittle, 558 F.2d 292, 299 (5th Cir. 1977)). "Since a more severe sentence was not
imposed, [the defendant] cannot make out a claim of vindictiveness." United States
v. Arrington, 255 F.3d 637, 639 (8th Cir. 2001) (citing Vontsteen, 950 F.2d at 1092);
see also United States v. Evans, 314 F.3d 329, 334 (8th Cir. 2002) (indicating a
presumption of vindictiveness does not apply "so long as the total sentence imposed
upon remand is no greater than the total original sentence"); United States v. Edwards,
225 F.3d 991, 993 (8th Cir. 2000) (rejecting a vindictive sentencing claim for the use
of a guidelines enhancement not used to calculate the original sentence even though
the second sentence was longer than the first because the enhancement would have
applied "but for" the erroneous calculation of the first sentence); United States v.
Bailey, 206 F. App'x 650, 653 (8th Cir. 2006) (rejecting a vindictive sentencing claim
based on the application of a guidelines enhancement to calculate a second sentence
when the enhancement was not used to calculate the first sentence and the second
sentence was no longer than the first).

      For the reasons stated, we affirm the district court in all respects.
                       ______________________________




exhausts his administrative remedies, the failure is subject to challenge in federal court
by filing a habeas petition under 28 U.S.C. § 2241. Id. (citing Rogers v. United
States, 180 F.3d 349, 358 (1st Cir. 1999)).
      4
       North Carolina v. Pearce, 395 U.S. 711 (1969).

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