              Case: 17-11481     Date Filed: 03/21/2018   Page: 1 of 6


                                                          [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-11481
                              Non-Argument Calendar
                            ________________________

                         D.C. Docket No. 1:16-cr-20418-UU-5



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
versus

DARYL PUGH,
a.k.a. Asinia Robbins,

                                                  Defendant - Appellant.

                            ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (March 21, 2018)

Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Daryl Pugh appeals his 61-month sentence, imposed after he pled guilty to

conspiracy to possess 15 or more unauthorized access devices in violation of 18

U.S.C. § 1029(a)(3), (b)(2), and aggravated identity theft in violation of 18 U.S.C.

§ 1028A.     Mr. Pugh contends that the district court incorrectly applied the

Sentencing Guidelines by failing to account for time served in state custody under

U.S.S.G. § 5G1.3(b), despite sustaining his objection on that ground. After review,

we affirm.

      Mr. Pugh and his co-conspirators broke into parked cars to steal purses,

wallets, and other belongings, including credit cards and identifications. As a

result of this conduct, Mr. Pugh was arrested and charged by local law

enforcement. Mr. Pugh pled guilty to state charges and received an 18-month

sentence, which he successfully completed.

      Upon release, Mr. Pugh was arrested again, this time by federal authorities,

and charged with conspiracy to possess 15 or more unauthorized access devices

(Count 1) and aggravated identity theft (Count 9). Mr. Pugh pled guilty to these

charges. At sentencing, the district court calculated a guideline range of 30 to 37

months’ imprisonment for Count 1, which it noted would yield a total sentence of

61 months at the high end with the statutory consecutive 24-month sentence for

count 9. D.E. 222 at 4.




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       Mr. Pugh argued that he was entitled to an 18-month reduction under

U.S.S.G. § 5G1.3(b) because the conduct leading to the state convictions was

identical to the federal crimes. The district court was “not overwhelmed by this

objection.” Id. at 3. The district court stated that, even if the objection were

technically correct, that it would vary upward to what the guideline sentence was

without the credit because of Mr. Pugh’s extensive criminal history:

       So I’m going to find that technically [Mr. Pugh’s] objection is correct
       and that under the guidelines the sentence would have to be run
       concurrently to the state court sentence. But I’m going to vary
       upward to the top of the guidelines and not impose the sentence
       concurrently because of Mr. Pugh’s criminal history.

Id. at 8.    Ultimately, the district court sentenced Mr. Pugh to 61 months’

imprisonment. Id. at 11–13.

       On appeal, Mr. Pugh argues that the district court failed to account for the

time he served in state custody under § 5G1.3(b), even though it sustained his

objection on that ground. The government responds that the district court did grant

Mr. Pugh credit for time served in state custody, but then varied to the top end of

the advisory guideline range, as it was permitted to do.1

       We review the district court’s application of § 5G1.3 de novo. United States

v. Bidwell, 393 F.3d 1206, 1208–09 (11th Cir. 2004). If we decide that the district
1
  Alternatively, the government argues for the first time on appeal that § 5G1.3(b) was
inapplicable because Mr. Pugh did not have an undischarged term. In the government’s view,
Mr. Pugh completed his state sentence before he was sentenced for the federal offense and thus
was no longer subject to an ongoing or forthcoming term of state imprisonment. Given our
resolution of the appeal, we need not consider this argument.
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court misapplied the Sentencing Guidelines, a remand is appropriate unless we

conclude, “on the record as a whole, that the error was harmless, i.e., that the error

did not affect the district court’s selection of the sentence imposed.” Williams v.

United States, 503 U.S. 193, 203 (1992). Thus, remand is not appropriate when we

determine that the district court’s error did not impact the district court’s ultimate

sentence. See United States v. Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006).

       Where a term of imprisonment results from another offense that constitutes

relevant conduct, § 5G1.3 of the Sentencing Guidelines provides that the district

court “shall adjust the sentence for any period of imprisonment already served on

the undischarged term of imprisonment if the court determines that such period of

imprisonment will not be credited to the federal sentence by the Bureau of

Prisons[.]”     If this provision applies, the district court “should note on the

Judgement in a Criminal Case Order . . . the amount of time by which the sentence

is being adjusted.” Id. § 5G1.3 cmt. n.2(c). 2

       The district court sustained Mr. Pugh’s § 5G1.3 objection, but did not

expressly credit Mr. Pugh for the time served in its oral or written sentence as the

application notes suggest that it should have done. The district court said it was

varying upward to offset the credit for time served, but ultimately sentenced Mr.


2
  The Guidelines also provide that the district court has discretion to grant a downward departure
if the defendant has completed serving a term of imprisonment and § 5G1.3 would have granted
the defendant credit for time served had the sentence been undischarged. See U.S.S.G. § 5K2.23.
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Pugh within the advisory guideline range, effectively denying him any credit for

the time spent in state custody. If the district court subtracted 18 months from the

advisory guideline range, that would have left Mr. Pugh facing 12-19 months

(advisory of course) for Count 1. The court, using the top end of the range,

apparently varied upwards by 18 months to reach 37 months.

      Even if we accepted the argument that the district court did not credit Mr.

Pugh for time served, the result would be the same. Although the district court was

not clear as to how exactly it was applying the credit after sustaining Mr. Pugh’s

objection, the district court stated that it was going to sentence Mr. Pugh to the top

end of the Guidelines due to his extensive criminal history. The district court

reiterated that even though Mr. Pugh’s objection was technically correct, it would

impose a total sentence of 61 months’ imprisonment. See D.E. 222 at 3–8. The

district court also stated that it would vary upwards from the guideline range to

ensure that Mr. Pugh received a sentence at the top end of the guidelines due to his

extensive criminal history. Id. Notably, Mr. Pugh has not appealed the substantive

reasonableness of the sentence imposed.

      There is no reversible error. The district court had discretion to grant Mr.

Pugh credit for time served. See U.S.S.G. §§ 5G1.3(b), 5K2.23. Likewise, the

district court had discretion to vary upwards and to impose a sentence above the

applicable guideline range based on Mr. Pugh’s criminal history. See United


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States v. Sanchez, 586 F.3d 918, 935–36 (11th Cir. 2013). The district court’s

comments indicate that a remand for resentencing would result only in an

explanation as to how the court arrived at a 61-month sentence. See Keene, 470

F.3d 1347, 1348–49. We find no reversible error, and therefore affirm the district

court’s 61-month sentence for Mr. Pugh.

      AFFIRMED.




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