UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4165

EDDIE J. SIMMONS, a/k/a Meno,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-96-986)

Submitted: September 29, 1998

Decided: October 22, 1998

Before MURNAGHAN, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Douglas H. Westbrook, Charleston, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Robert H. Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Eddie J. Simmons appeals the forty-one-month sentence he
received after he pled guilty to participating in a crack cocaine con-
spiracy from mid-1992 to late 1996, see 21 U.S.C. § 846 (1994), and
the district court's order denying his Fed. R. Crim. P. 35(c) motion.
He contends that the district court erred in finding that state parole is
not an "undischarged term of imprisonment" requiring application of
USSG § 5G1.3(b)1 and thus refusing to give him credit for time he
had served on a state sentence for related conduct. We affirm.

When Simmons was indicted for the instant offense, he was serv-
ing a South Carolina Youthful Offender sentence for a crack convic-
tion which was part of the same conspiracy. He was paroled by the
state in March 1997 and entered a guilty plea to the federal crack con-
spiracy charge in August 1997. At the sentencing hearing, the district
court noted that Simmons had been in custody for a little over eigh-
teen months for conduct which was part of the same conspiracy, but
that he could not receive credit for that time on his federal sentence.

Simmons now claims that, because he was on parole from his state
sentence, the district court should have given him credit for the time
he served on his state sentence pursuant to USSG§ 5G1.3, which
governs sentencing of a defendant who is subject to an undischarged
term of imprisonment. Under USSG § 5G1.3(b), if the undischarged
term of imprisonment resulted from offenses which were fully taken
into account in determining the offense level for the instant federal
offense, the district court must impose a sentence concurrent with the
undischarged term of imprisonment and adjust the guideline range to
account for any period of imprisonment already served. See USSG
§ 5G1.3(b), comment. (n.2).

The question is whether Simmons' status as a state parolee made
him subject to an "undischarged term of imprisonment," as that term
is used in the federal sentencing guidelines. Simmons relies on United
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1 U.S. Sentencing Guidelines Manual (1997).

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States v. French, 46 F.3d 710, 717 (8th Cir. 1995), in which the
Eighth Circuit applied South Dakota law and found that the defen-
dant, a state parolee, was subject to an undischarged term of impris-
onment within the meaning of USSG § 5G1.3(b). 2

However, the term "imprisonment" is "used throughout the Guide-
lines to denote time in a penal institution," or"institutional time."
United States v. Phipps, 68 F.3d 159, 162-63 (7th Cir. 1995). More-
over, we have held, as have the Sixth and Seventh Circuits, that state
law is not relevant in determining the meaning of terms used in the
federal sentencing guidelines. See United States v. Jones, 107 F.3d
1147, 1163 (6th Cir.) (home detention is not a sentence of imprison-
ment under USSG § 4A1.1) (quoting Dickerson v. New Banner Inst.,
Inc., 460 U.S. 103, 119 (1983), for the principle that, "`in the absence
of a plain indication to the contrary, . . . it is to be assumed when Con-
gress enacts a statute that it does not intend to make its application
dependent on state law.'" (citations omitted)), cert. denied, ___ U.S.
___, 65 U.S.L.W. 3861 (U.S. June 27, 1997) (No. 96-9164); Prewitt
v. United States, 83 F.3d 812, 817 (7th Cir. 1996) (probation is not
sentence of imprisonment under USSG § 5G1.3); Phipps, 68 F.3d at
161 (home detention is not sentence of imprisonment under USSG
§ 5G1.3); United States v. Stewart, 49 F.3d 121, 123 n.3 (4th Cir.
1995) (unlike Maryland law, federal law clearly distinguishes
between parole and incarceration under USSG § 4A1.1).

In light of these decisions, we find French unpersuasive. At the
time he was sentenced in the district court, Simmons had served the
period of incarceration required by the state. He was not subject to an
undischarged term of imprisonment and USSG § 5G1.3(b) did not
apply in his case. Therefore, the district court did not err in finding
that it could not give him credit for the eighteen months he had served
in state custody.

The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
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2 Under South Dakota law, parolees are considered to be "`confined, in
the legal custody of the department of corrections.'" French, 46 F.3d at
717 (quoting S.D. Codified Laws Ann. § 24-15-13 (Supp. 1994)).

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in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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