                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2761
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the District
                                      * of Nebraska.
John Meyers,                          *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: February 16, 2005
                                Filed: March 31, 2005 (Corrected: 04/12/05)
                                 ___________

Before BYE, HEANEY, and MELLOY, Circuit Judges.
                           ___________

BYE, Circuit Judge.

       John Meyers appeals the district court’s1 decision to run his sentence imposed
for a federal conviction consecutively to a sentence imposed for a state conviction
arising out of the same sequence of events. Because the district court retained
discretion to impose a consecutive or concurrent sentence and the imposition of a
consecutive sentence is reasonable, we affirm.




      1
      Honorable Joseph F. Bataillon, United States District Judge for the District of
Nebraska.
                                           I

       The facts are virtually undisputed. Meyers was involved in a troubled
relationship with a young woman named Angelica Bittner, who, approximately two
years into the relationship, decided to move out of the home the two shared in
Branson, Missouri. She eventually settled in Bellevue, Nebraska, where she remained
in contact with Meyers via e-mail.

       On at least two occasions prior to April 30, 2003, Meyers traveled to Bellevue
to spend time with Bittner. On that date, Meyers once again traveled to Bellevue.
Upon his arrival, Meyers informed Bittner he planned to take her away for five days.
When Bittner balked at his plan, Meyers informed her that he was holding her mother
at an undisclosed location. Meyers then produced a stun gun and activated it in her
presence. Feeling threatened, Bittner packed some belongings and traveled with
Meyers back to Branson.

       On May 3, 2003, Bittner’s father, unable to contact his daughter, grew
concerned. Mr. Bittner placed a call to the Taney County, Missouri, Sheriff’s
Department at which time he informed law enforcement of his daughter’s troubled
relationship with Meyers. That same day, a sheriff’s deputy knocked on the door of
Meyers’s residence in Branson. When Bittner opened the door, the deputy asked her
if she was alright. She verbally indicated “yes,” but shook her head “no.” The deputy
then asked her to step outside where she told him she had been forced to come to
Branson by Meyers who had threatened her with a stun gun.

       When the deputy asked to speak with Meyers, he ran toward the bedroom. The
deputy gave chase. Once near the bedroom, the deputy discovered Meyers holding
a black pistol. He raised the pistol toward the deputy, at which time the deputy pulled
his firearm and ordered Meyers to the ground. Meyers complied and was arrested.



                                         -2-
A search of the residence revealed the stun gun used by Meyers to threaten Bittner.
Bittner testified she never saw the black pistol until the incident with the deputy.

       The State of Missouri charged Meyers with unlawful use of a weapon for using
the black pistol during the incident with the deputy. After pleading guilty, the state
court sentenced him to four years imprisonment. His mandatory release date, at least
according to Meyers, is May 6, 2006.

       In addition to the state charges, a federal grand jury in Nebraska indicted
Meyers on one count of interstate stalking in violation of 18 U.S.C. § 2261A and one
count of interstate domestic violence in violation of 18 U.S.C. § 2261(a)(1). Pursuant
to a plea agreement, Meyers agreed to plead guilty to the offense of interstate
stalking. The plea agreement contained various stipulations, including one setting his
base offense level at 18, pursuant to United States Sentencing Guideline (U.S.S.G.)
§ 2A6.2(a), making him subject to a two-level enhancement for possession or
threatened use of a dangerous weapon pursuant to § 2A6.2(b)(1)(C). The plea
agreement, however, contained no provision concerning the issue of whether his
federal sentence would run concurrently with, or consecutive to, the state sentence
which had been imposed as a result of his having pulled a firearm on the sheriff’s
deputy.

       At sentencing, Meyers argued § 5G1.3(b) required the court to impose a
concurrent sentence. The government, on the other hand, argued § 5G1.3 left the
court with discretion to impose a consecutive sentence because the conduct which
formed the basis for the state charge did not form the basis for an increase to the
offense level on the instant federal offense. The government further argued there
should be additional punishment given to a defendant who opts to pull a firearm on
a law enforcement officer. The district court ultimately sided with the government
and ordered Meyers’s thirty-three month federal sentence to run consecutive to his
state sentence. On appeal, Meyers challenges this decision.

                                         -3-
                                          II

        Generally, the district court retains broad statutory authority to impose a
sentence to run consecutively with or concurrently to an undischarged term of
imprisonment. 18 U.S.C. § 3584(a). “[I]n determining whether the terms imposed
are to be ordered to run concurrently or consecutively,” a district court “shall
consider, as to each offense for which a term of imprisonment is being imposed, the
factors set forth in section 3553(a).” Id. § 3584(b). Prior to the dramatic changes in
federal sentencing which occurred as a result of United States v. Booker, 125 S. Ct.
728 (2005), the controlling § 3553(a) factor was “the kinds of sentences available”
under the United States Sentencing Guidelines promulgated by the Sentencing
Commission. Id. §§ 3553(a)(4), (b)(1). Congress included in the powers delegated
to it the power to determine “whether multiple sentences to terms of imprisonment
should be ordered to run concurrently or consecutively.” 28 U.S.C. § 994(a)(1)(D).

       The appropriate guideline provision was the controlling factor because the
sentencing guidelines were binding on courts with the force and effect of law.
Booker, 125 S. Ct. at 750 (citing Mistretta v. United States, 488 U.S. 361, 391
(1989)). After Booker, the Guidelines no longer have the binding force and effect of
law, but are merely advisory. Id. at 757. Thus, while the district court is required to
consider them, it is not strictly bound by them to the detriment of the other § 3553(a)
factors. Id.

       However, as the statute requires the district court to consider the appropriate
guideline, 18 U.S.C. § 3553(a)(4), we review the Guideline’s advice on the matter.
Consistent with § 3584(a), the Guidelines advise the district court, with some
exceptions, to exercise discretion in imposing a sentence “to run concurrently,
partially concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G.
§ 5G1.3(c).

                                         -4-
       One exception to this general recommendation is in a situation where the term
of imprisonment resulted from a related offense which is relevant conduct to the
instant offense of conviction and the term of imprisonment was the basis for an
increase in the instant offense (as long as instant offense was not committed while
serving a term of imprisonment). Id. § 5G1.3(b). In this situation, the Guidelines
advise the district court “the sentence for the instant offense shall run concurrently
to the remainder of the undischarged term of imprisonment.” Id. § 5G1.3(b)(2).

       Meyers argues his sentence is of the type § 5G1.3(b) would advise the district
court to impose a concurrent sentence because the conduct which formed the basis
for his state conviction, i.e. pulling a firearm on the arresting sheriff’s deputy, also
formed the basis for the two-level sentencing enhancement for the use of a dangerous
weapon. Meyers’s argument is misplaced. The two-level enhancement Meyers
received was predicated on the use of a stun gun to abduct and threaten Angelica
Bittner. The firearm, on the contrary, was never used by Meyers to abduct or threaten
Bittner. In fact, she testified she never saw the pistol. Since Meyers received a two-
level enhancement for having used a stun gun to abduct her, a fact largely conceded
by the defense, he would have received the two-level enhancement regardless of
whether he pulled a firearm on the arresting officer. Therefore, because his state
conviction arising from his having pulled a gun on a sheriff’s deputy did not result
in an enhancement for the instant offense, this is not the type of situation for which
the Guidelines would recommend a concurrent sentence.

       Accordingly, the Guidelines advise the district court “to achieve a reasonable
punishment for the instant offense” by running the federal sentence concurrently,
partially concurrently, or consecutively to the state sentence. The district court was
to consider this recommendation in addition to the other § 3553(a) factors in
formulating Meyers’s sentence. The ultimate sentence, thirty-three months to be



                                          -5-
served consecutively to any undischarged term of imprisonment, was reasonable and
not an abuse of discretion, thus we affirm.
                      ______________________________




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