                             REVISED May 18, 2009

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                          FILED
                                     No. 08-10775                        May 15, 2009
                                   Summary Calendar
                                                                   Charles R. Fulbruge III
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

ROBERTO GARCIA-ESPINOZA,

                                                  Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 5:08-CR-2


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Roberto Garcia-Espinoza appeals the sentence imposed following his
guilty-plea conviction of illegal re-entry after deportation in violation of 8 U.S.C.
§ 1326. Garcia-Espinoza asserts that the district court erred when it ordered his
federal sentence to run consecutively to a not-yet-imposed state sentence.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                        No. 08-10775

Because his challenge is foreclosed by our prior precedent, we affirm the district
court’s holding.1
                                    *        *         *
       AFFIRMED.




       1
        See United States v. Brown, 920 F.2d 1212 (5th Cir. 1991), abrogated on other grounds
by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006).

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                                      No. 08-10775

OWEN, Circuit Judge, with whom DENNIS, Circuit Judge, joins, concurring:
       Though our prior precedent in United States v. Brown1 requires that we
affirm the district court’s sentencing of Roberto Garcia-Espinoza, I write
separately to recommend that the court re-examine en banc how we have
previously construed 18 U.S.C. § 3584. In Brown, we held that § 3584 permits
a federal district court to direct that a federal sentence must run consecutively
to a future sentence that had yet to be imposed by a state court.2 Section 3584(a)
provides:
              (a) Imposition of concurrent or consecutive terms.–If
       multiple terms of imprisonment are imposed on a defendant at the
       same time, or if a term of imprisonment is imposed on a defendant
       who is already subject to an undischarged term of imprisonment,
       the terms may run concurrently or consecutively . . . . Multiple
       terms of imprisonment imposed at the same time run concurrently
       unless the court orders or the statute mandates that the terms are
       to run consecutively. Multiple terms of imprisonment imposed at
       different times run consecutively unless the court orders that the
       terms are to run concurrently.3
We interpreted this section to mean that “when determining whether to impose
concurrent or consecutive sentences” the district court “may consider subsequent
sentences anticipated, but not yet imposed, in separate state court proceedings.”4
       In its briefing before our court in the present case, the Government
contends that our decision in Brown should be overruled or modified. The
Government says: “This Court, in an appropriate case, should overrule or
modify United States v. Brown [citations omitted] and hold that 18 U.S.C.



       1
        920 F.2d 1212 (5th Cir. 1991), abrogated on other grounds by United States v. Candia,
454 F.3d 468, 472-73 (5th Cir. 2006).
       2
           Id. at 1217.
       3
           18 U.S.C. § 3584(a).
       4
           Brown, 920 F.2d at 1217.

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                                       No. 08-10775

§ 3584(a) does not authorize a district court to order that the federal term of
imprisonment be served consecutively to a yet-to-be-imposed state sentence.”
       Our sister circuits are split on this issue. Those that have come to the
same conclusion as Brown have generally interpreted the final sentence of
§ 3584(a) as encouraging consecutive sentences where multiple terms of
imprisonment are imposed at different times, regardless of whether one of the
terms is not yet imposed.5 Those that interpret § 3584(a) differently from Brown
have held that the statute’s first sentence limits its applicability to those
situations in which multiple terms of imprisonment are imposed at the same
time or in which the defendant is already subject to an undischarged term of
imprisonment.6 These courts concluded that the final sentence merely sets out
a default rule for those two situations governed by the statute and does not
bestow upon the district court the ability to impose a sentence consecutive to a
future state court sentence.7
       The Government contends that we should not revisit Brown in the present
case because the defendant has now served his state sentence and cannot receive
credit toward his federal sentence, thus making this matter moot.8 I disagree.
The Bureau of Prisons (BOP) has the authority to implement a concurrent


       5
         See United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001); United States v.
Williams, 46 F.3d 57, 59 (10th Cir. 1995); United States v. Ballard, 6 F.3d 1502, 1506 (11th
Cir. 1993).
       6
        See United States v. Donoso, 521 F.3d 144, 149 (2d Cir. 2008); United States v. Smith,
472 F.3d 222, 226 (4th Cir. 2006); United States v. Quintero, 157 F.3d 1038, 1039-40 (6th Cir.
1998); United States v. Clayton, 927 F.2d 491, 492 (9th Cir. 1991).
       7
        See Donoso, 521 F.3d at 149; Smith, 472 F.3d at 226; Quintero, 157 F.3d at 1039-40;
Clayton, 927 F.2d at 492.
       8
         See 18 U.S.C. § 3585(b) (providing that a defendant shall be given credit toward
service of a term of imprisonment only for time served that has not been credited against
another sentence); Leal v. Tombone, 341 F.3d 427, 429-30 (5th Cir. 2003) (denying federal
sentencing credit to a defendant for time served in a state prison where the state sentencing
court ordered that his sentence be concurrent to the federal sentence).

                                              4
                                     No. 08-10775

sentence by retroactively designating the state prison in which the defendant
served his state sentence as the place for service of his federal sentence as well.9
Thus, if we were to vacate and remand for resentencing and the district court
imposed a concurrent sentence, the BOP could still implement that sentence
notwithstanding the fact that the defendant has already served the entirety of
his state sentence in a state prison.
      In light of the circuit split and because both of the parties in this case
argue that Brown’s construction of § 3584(a) is incorrect, I recommend that the
court re-examine our Brown holding en banc.




      9
         See Barden v. Keohane, 921 F.2d 476, 478 (3d Cir. 1990); 18 U.S.C. § 3621(b)
(authorizing the BOP to designate any facility that meets minimum standards of health and
habitability as the place for service of a federal sentence).

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