In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2345

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS J. ROSS,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:95 CR 109-01--Rudy Lozano, Judge.


Submitted May 3, 2000/*--Decided July 5, 2000



  Before Posner, Chief Judge, and Diane P. Wood and
Evans, Circuit Judges.

  Diane P. Wood, Circuit Judge. Nicholas Ross
pleaded guilty in 1997 to possession of a firearm
by a felon. Ever since then, Ross has steadfastly
maintained that the district court should have
imposed a sentence under the Armed Career
Criminal Act that reflected a reduction of 34
months, to account for the time he spent
imprisoned on a related state burglary conviction
before his federal sentencing. The district
court, thinking that the Bureau of Prisons
("BOP") would give Ross credit for the 34 months
in question, imposed a term of 188 months on the
understanding that Ross would actually serve only
154 more months in federal custody. Ross, who was
pro se at sentencing, appealed and argued that
the district court should have credited the time
directly. Twice we rejected appointed appellate
counsel’s characterization of Ross’s appeal as
frivolous. The third time has proven to be the
charm for Ross. The second new lawyer, agreeing
with Ross, has presented the argument that the
sentencing court committed reversible error. The
government has confessed error. We accept its
concession and remand for resentencing.

  Ross broke into an Indiana home in July 1994
and stole a .25 caliber Beretta handgun. He was
later apprehended while driving a stolen van, and
the officers found the Beretta in the waistband
of his pants. This led to state charges of
residential burglary, to which Ross pleaded
guilty; for this, he ultimately received a state
sentence of 20 years’ imprisonment. Before
sentencing on the burglary conviction, a federal
grand jury returned a two-count indictment,
charging Ross with possession of a firearm by a
felon, 18 U.S.C. sec. 922(g)(1), and possession
of a stolen firearm, 18 U.S.C. sec. 922(j)--the
same Beretta handgun. At the time Ross committed
the burglary, he had three prior violent felony
convictions, rendering him eligible for a 15-year
mandatory minimum sentence under the Armed Career
Criminal Act, 18 U.S.C. sec. 924(e)(1). Ross
pleaded guilty to the sec. 922(g)(1) charge, and
the sec. 922(j) charge was later dismissed on the
government’s motion. By the time the district
court sentenced Ross, he had already served 34
months on the undischarged state sentence.

  At sentencing, Ross argued that U.S.S.G. sec.
5G1.3(b) required the court to impose his federal
sentence concurrently with the undischarged
residential burglary sentence. Ross further
argued that Application Note 2 to sec. 5G1.3
required the court to reduce his presumptive
federal sentence by the 34 months he had already
served on the undischarged state sentence. The
district court, without objection from the
government, agreed on both points. The court
properly ordered the federal prison term to run
concurrently with the remainder of the state
prison term based on its determination that
Ross’s burglary conviction was "fully taken into
account" in the offense level calculation. See,
e.g., United States v. Bell, 28 F.3d 615, 618-19
(7th Cir. 1994); United States v. Evans, 1 F.3d
654, 654 (7th Cir. 1993) (per curiam). But
instead of sentencing Ross to 154 months, as Ross
had argued was appropriate, the court sentenced
Ross to 188 months and attempted to order the BOP
to give Ross a 34-month credit against that term.
It was this step in the process that Ross claims
was error, and the government now agrees with
him. Ross notes that the BOP not only has not
given him credit, but worse, that 18 U.S.C. sec.
3585(b) bars it from doing so, because the state
had already credited the 34 months against his
state sentence.

  Ross is correct. The district court had no
authority to order the BOP to give Ross the
credit because that authority rests exclusively
with the BOP. See United States v. Wilson, 503
U.S. 329 (1992); United States v. McGee, 60 F.3d
1266, 1272 (7th Cir. 1995). Even if the BOP had
desired to effectuate the sentencing court’s
intent, it could not have done so because sec.
3585(b) forbids the BOP from giving credit for
presentence custody when that credit has been
applied against another sentence. See United
States v. Walker, 98 F.3d 944, 945 (7th Cir.
1996). And here, the state obviously was giving
Ross credit for his time served in state prison
on a state sentence. Under these circumstances,
Application Note 2 to sec. 5G1.3 directs the
sentencing court to credit the otherwise
applicable guideline term of imprisonment. See
Bell, 28 F.3d at 618-19; see also United States
v. Dorsey, 166 F.3d 558, 563 (3d Cir. 1999);
United States v. Drake, 49 F.3d 1438, 1440 (9th
Cir. 1995); United States v. Kiefer, 20 F.3d 874,
875-76 (8th Cir. 1994). Therefore, we agree with
Ross that Application Note 2 to sec. 5G1.3
required the sentencing court to reduce by 34 his
188-month guideline sentence and impose a net
sentence of 154 months.

  One further issue requires our attention. Ross,
as an armed career criminal, was subject to a 15-
year mandatory minimum sentence under 18 U.S.C.
sec. 924(e)(1). On the surface of things, it
would appear that the requirement of Application
Note 2 to apply the 34-month credit to Ross’s
sentence would have left his net sentence 26
months short of the statutorily required 15-year
minimum term. In our view, however, such a
conclusion would exalt form over substance.
Ross’s total sentence for purposes of sec. 924(e)
should be viewed as the sum of the sentence
reflected on the federal district court’s order
of judgment (which here said 188 months, but
should have said the 154 months the judge
intended he should actually serve) plus the 34
months he has already served for the "conduct
taken into account in determining the guideline
range." The effect of sec. 924(e) is to require
that the total of the time served plus the
federal sentence cannot be less than 180 months
(the mandatory 15-year period), but Ross’s total
is 188 months, comfortably above that range. Two
other circuits have come to the same conclusion
on similar facts. See Drake, 49 F.3d at 1440-41;
Kiefer, 20 F.3d at 876-77. As the Kiefer court
pointed out, the language of sec. 924(e)
stipulates that an armed career criminal like
Ross "shall be . . . imprisoned not less than
fifteen years." The statute does not specify any
particular way in which that imprisonment should
be achieved. The district courts are empowered
under the Sentencing Guidelines to adjust the
concurrent or consecutive nature of federal
sentences so as to produce the correct total
punishment. See U.S.S.G. sec.sec. 5G1.2, 5G1.3.
The Guidelines take the additional step in sec.
5G1.3 of specifying how undischarged terms of
imprisonment should be taken into account to
achieve the correct result. Application Note 2
goes further and specifies that the credit so
given is not a departure from the guideline
range; it is simply another way of achieving the
required period of imprisonment. (A departure
below the statutory mandatory minimum would be
prohibited, unless the defendant qualified for
safety valve treatment, 18 U.S.C. sec. 3553(f),
or the government moved for a departure based on
substantial assistance, 18 U.S.C. sec. 3553(e).
See United States v. Smallwood, 188 F.3d 905, 916
(7th Cir. 1999); United States v. Arrington, 73
F.3d 144, 147 (7th Cir. 1996).)

  We conclude the computation of the total term
of imprisonment for purposes of sec. 924(e) may,
consistently with Application Note 2 to sec.
5G1.3, be accomplished by adding up the number of
months the defendant has served on the related
conviction and the number of months assessed in
the federal judgment. The total must equal or
exceed the statutory mandatory minimum of 180
months. On remand, the sentencing court shall
give Ross the full 34-month credit for the time
he served on the undischarged state sentence and
amend the total in the federal sentence
accordingly.

  For these reasons, we Vacate Ross’s sentence and
Remand for resentencing.



/* After an examination of the briefs and the
record, we concluded that oral argument was
unnecessary. Thus, the appeal was submitted on
the briefs and the record. See Fed. R. App. P.
34(a)(2).
