                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3845
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Peter L. Mayotte,                        *
                                         *      [PUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: January 17, 2001
                                Filed: May 10, 2001
                                    ___________

Before HANSEN, HEANEY, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

       Peter L. Mayotte appeals following imposition of sentence upon his guilty plea
to a charge of bank robbery, and revocation of the supervised release he was serving
for a prior conviction. For the reasons discussed below, we affirm both his new and
revocation sentences.

                                          I.

      In 1995, Mayotte was convicted in federal court of bank robbery, for which he
was sentenced to 37 months of imprisonment and 3 years of supervised release. While
on supervised release, he committed another bank robbery, robbed a pizza store, and
failed to submit a urine sample for drug testing as required by his conditions of release.
He was charged in federal court for the bank robbery, and in Missouri state court for
the pizza store robbery. A petition to revoke his supervised release was also filed.

       In federal court, Mayotte pleaded guilty to bank robbery, in violation of 18
U.S.C. § 2113(a), and the district court1 sentenced him to 40 months of imprisonment
and 3 years of supervised release. The court also revoked his supervised release for
the prior bank robbery, sentencing him to 6 months of imprisonment, to be served
consecutively to the 40-month sentence “and also consecutive with any state case in
which the defendant is currently being held.”

       Mayotte was subsequently convicted in state court of second-degree robbery for
the pizza store robbery, and was sentenced to 5 years of imprisonment. The state court
ordered the sentence to be served concurrently with Mayotte’s two federal sentences.

                                           II.

      On appeal, Mayotte first argues that the district court erred in denying him a
downward departure based on coercion and his medical condition. Having reviewed
the court’s comments at sentencing, we conclude that it was aware of its authority to
depart from the Guidelines on the grounds asserted, and in an exercise of its discretion
declined to do so, making the matter unreviewable. See United States v. Turechek, 138
F.3d 1226, 1228 (8th Cir. 1998).

     Second, Mayotte argues that the district court lacked authority to make his 6-
month revocation sentence consecutive to the state sentence he later received for the


      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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pizza store robbery, because he had not yet been convicted or sentenced for the state
offense at the time of his federal sentencing. This presents a question of first
impression in this circuit. Cf. United States v. Robinson, 217 F.3d 560, 566 (8th Cir.
2000) (district court did not unreasonably impose federal sentence consecutively to yet-
to-be-imposed state sentence, where defendant had pleaded guilty to state offense--but
had not yet received state sentence--at time of federal sentencing; citing U.S.S.G.
§ 5G1.3(c) without discussing issue presented in instant case).

      Those circuits that have addressed the issue disagree whether a district court may
impose a federal sentence to be served consecutively to a yet-to-be-imposed state
sentence. The Second, Fifth, Tenth, and Eleventh Circuits have concluded that it may,
see United States v. Williams, 46 F.3d 57, 58-59 (10th Cir.), cert. denied, 516 U.S. 826
(1995); United States v. Ballard, 6 F.3d 1502, 1510 (11th Cir. 1993); United States v.
Brown, 920 F.2d 1212, 1217 (5th Cir.), cert. denied, 500 U.S. 925 (1991); Salley v.
United States, 786 F.2d 546, 547-48 (2d Cir. 1986); while the Sixth, Seventh, and
Ninth Circuits have concluded that it may not, see Romandine v. United States, 206
F.3d 731, 738-39 (7th Cir. 2000); United States v. Quintero, 157 F.3d 1038, 1039-41
(6th Cir. 1998); United States v. Eastman, 758 F.2d 1315, 1317-18 (9th Cir. 1985).

      While we are mindful of the concerns discussed by the circuits holding the
minority view--deference to the Attorney General’s authority under separation-of-
powers principles, and to the state court’s authority under comity principles--we are
persuaded to adopt the majority view. The district court has broad discretion to
determine whether a sentence should be consecutive or concurrent, see United States
v. Goldman, 228 F.3d 942, 943 (8th Cir. 2000), cert. denied, 121 S. Ct. 1149 (2001),
within the constraints of the relevant statute, 18 U.S.C. § 3584.

      Neither the statute nor the Guidelines directly address whether the district court
may impose a federal sentence to be served consecutively to a yet-to-be-imposed state
sentence. They certainly do not prohibit it, however; and suggestive of the contrary,

                                          -3-
the statute encourages consecutive sentences when prison terms are imposed at
different times, see 18 U.S.C. § 3584(a), and the Guidelines provide that a supervised-
release revocation sentence should be consecutive to a sentence imposed for an offense
committed while on supervised release, see U.S.S.G. § 7B1.3, p.s., comment. (n.4).
Construing these provisions, we conclude that the authority to impose such a federal
sentence to be served consecutively to a yet-to-be-imposed state sentence falls within
the broad discretion granted to the court. See Williams, 46 F.3d at 59; Ballard, 6 F.3d
at 1506.

       In exercising its discretion, the district court must, pursuant to section 3584(b),
consider the factors set forth in 18 U.S.C. § 3553(a). See Ballard, 6 F.3d at 1505;
Brown, 920 F.2d at 1216-17. Having reviewed the court’s comments at sentencing, we
are satisfied that it did so.

       To the extent that the federal and state sentences conflict--the federal revocation
sentence was ordered to be consecutive to the state sentence, but the state sentence was
ordered to be concurrent to both the federal bank-robbery and revocation sentences--
the federal sentence controls. See Ballard, 6 F.3d at 1509-10; Salley, 786 F.2d at 548.

                                           III.

      Accordingly, we affirm the judgment of the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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