                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-1276
                                     ___________

United States of America,                 *
                                          *
                    Appellant,            * Appeal from the United States
                                          * District Court for the Eastern
      v.                                  * District of Arkansas.
                                          *
Thomas Lee Goldman,                       *
                                          *
                    Appellee.             *
                                     ___________

                                Submitted: September 14, 2000

                                    Filed: September 29, 2000
                                     ___________

Before LOKEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

FAGG, Circuit Judge.

       While on parole for an earlier state theft conviction, Thomas Lee Goldman was
charged with and pleaded guilty to one count of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g). After his arrest on the § 922(g) charge, Goldman's
parole was revoked and he was returned to state custody. The district court sentenced
Goldman to 180 months on the § 922(g) charge and ordered, over the Government's
objection, that the sentence run concurrently to Goldman's state sentence.
       On appeal, the Government contends the district court committed error in
ordering Goldman's federal sentence to run concurrently, rather than consecutively, to
his state sentence. We agree. The applicable sentencing guideline provides:

      (a) If the instant offense was committed while the defendant was serving
      a term of imprisonment (including work release, furlough, or escape
      status) or after sentencing for, but before commencing service of, such
      term of imprisonment, the sentence for the instant offense shall be
      imposed to run consecutively to the undischarged term of imprisonment.

      (b) If subsection (a) does not apply, and the undischarged term of
      imprisonment resulted from offense(s) that have been fully taken into
      account in the determination of the offense level for the instant offense,
      the sentence for the instant offense shall be imposed to run concurrently
      to the undischarged term of imprisonment.

      (c) (Policy Statement) In any other case, the sentence for the instant
      offense may be imposed 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. Sentencing Guidelines Manual (U.S.S.G.) § 5G1.3 (1998). Both parties concede
subsection (a) does not apply to Goldman. Subsection (b) does not apply because
Goldman's state theft conviction was not taken into account in determining his offense
level on the § 922(g) charge. Thus, subsection (c) – the catch-all provision of § 5G1.3
– governs the question of whether Goldman's § 922(g) sentence should run concurrently
or consecutively to his state sentence.

      The broad discretion given the district court by § 5G1.3(c) to impose concurrent
or consecutive sentences is limited in Goldman's case, however, by Application Note
6, which states:




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      Revocations. If the defendant was on federal or state . . . parole . . . at the
      time of the instant offense, and has had such . . . parole . . . revoked, the
      sentence for the instant offense should be imposed to run consecutively
      to the term imposed for the violation of . . . parole . . . in order to provide
      an incremental penalty for the violation of . . . parole . . . . See § 7B1.3
      (Revocation of Probation or Supervised Release) (setting forth a policy
      that any imprisonment penalty imposed for violating probation or
      supervised release should be consecutive to any sentence of imprisonment
      being served or subsequently imposed).

U.S.S.G. § 5G1.3 cmt. n.6.

       Goldman argues Application Note 6 is merely advisory and not mandatory
because it states Goldman's sentence on the § 922(g) charge "should be imposed to run
consecutively" to his state sentence, rather than mandating that the two sentences
"shall" run consecutively. There is a split among the circuit courts of appeal that have
considered the argument Goldman makes. Compare United States v. Alexander, 100
F.3d 24, 26-27 (5th Cir. 1996) (per curiam) (rejecting argument); United States v.
Gondek, 65 F.3d 1, 2-3 (1st Cir. 1995) (same); United States v. Bernard, 48 F.3d 427,
431 (9th Cir. 1995) (same) with United States v. Maria, 186 F.3d 65, 68-72 (2d Cir.
1999) (accepting argument). Like most of the circuit courts of appeal that have
considered the issue, we rejected Goldman's view of Note 6 in United States v. Dungy,
No. 95-3997, 1996 WL 193150, at *1 (8th Cir. Apr. 23, 1996). Although Dungy is an
unpublished opinion, our panel must follow it as precedent. See Anastasoff v. United
States, No. 99-3917, 2000 WL 1182813, at *6 (8th Cir. Aug. 22, 2000) (portion of 8th
Cir. R. 28A(i) that states unpublished opinions are not precedent is unconstitutional
under Article III). Only the en banc court can overturn the Dungy panel's opinion. See
United States v. Polanco, 53 F.3d 893, 896 (8th Cir. 1995).

     We held in Dungy that notwithstanding the Sentencing Commission's use of the
word "should" rather than "shall," Application Note 6 is mandatory and requires


                                           -3-
consecutive sentences. Id.; accord Alexander, 100 F.3d at 26-27; Gondek, 65 F.3d at
2-3; Bernard, 48 F.3d at 431. Application Note 6 represents the Commission's decision
about the appropriate incremental penalty for the conduct described in the Note. See
Dungy, 1996 WL 193150, at *1. The situations the Note covers are similar to those
covered in § 5G1.3(a), which requires consecutive sentencing, and the Note references
§ 7B1.3(f), which sets a policy of consecutive sentencing after the revocation of federal
probation or supervised release. See id.; see also United States v. Glasener, 981 F.2d
973, 975 (8th Cir. 1992) (reaching similar result for sentences imposed before
enactment of Note 6, based in part on section 7B1.3(f)).

      Because the district court should have ordered Goldman's § 922(g) sentence to
run consecutively to his state sentence as required by Application Note 6, we reverse
and remand for resentencing consistent with this opinion.

      A true copy.

             Attest:

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




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