                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2796
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Timothy C. Burch,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 16, 2005
                                Filed: May 11, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

      Timothy C. Burch (Burch) pled guilty, without a plea agreement, to one count
of possessing with intent to use five or more identification and false identification
documents, in violation of 18 U.S.C. § 1028(a)(3). The district court1 sentenced
Burch to 51 months imprisonment, to run concurrently with the remainder of his state
sentences, but without credit for time already served on his undischarged state
sentences. On appeal, Burch contends the district court erred in not applying section
5G1.3(b) of the United States Sentencing Guidelines (Guidelines) to credit his federal

      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
sentence with the time already served on his undischarged state sentences. We
affirm.

I.     BACKGROUND
       In December 2001, Missouri authorities arrested Burch for driving while
intoxicated. During Burch’s arrest, officers discovered Burch possessed a number of
false identifications, fraudulent credit cards, and a hotel key card. Pursuant to a
federal search warrant, officers searched Burch’s hotel room. Officers discovered
evidence tying Burch to identity fraud, including a computer, digital cameras, photo
paper, software used to write checks on a computer, false driver’s licenses, social
security cards bearing other individuals’ names, a box of blank laminated
identification cards, blank business and personal checks, counterfeit checks made
payable to other individuals, and various identification cards bearing Burch’s name.

       On March 26, 2004, Burch pled guilty, without a plea agreement, to one count
of identification fraud, in violation of 18 U.S.C. § 1028(a)(3). The United States
Probation Office prepared a presentence investigation report (PSR), which reported
Burch had undischarged prison sentences in Missouri, Wisconsin, and Iowa. In April
2002, a Missouri circuit court sentenced Burch to five years in prison for three counts
of forgery. In January 2003, a Wisconsin circuit court sentenced Burch to eight years
in prison for two counts of forgery, to be served concurrently with the Missouri
sentence. In July 2003, an Iowa district court sentenced Burch to five years in prison
for forgery to be served consecutively to five years in prison for tampering with
records. The PSR also stated, “[b]ecause the defendant is subject to an undischarged
term of imprisonment, the provisions of Section 5G1.3 may apply.”

        Burch objected to the PSR’s failure to credit time he had already served under
the Missouri sentence, because “[t]his conduct was ‘relevant conduct’ and used, in
part, to establish the loss for which [Burch] is accountable in this case.” In response
to Burch’s objection, the government argued the Missouri conduct was too remote,

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because the Missouri conduct occurred “in 1997 through June of 1999,” while “the
crimes presently before the Court” occurred in 2001.

      At sentencing, the parties submitted a “Joint Stipulation and Guidelines
Recommendation and Defendant’s Waiver of Rights and Consent to Apply the United
States Sentencing Guidelines” (Joint Stipulation). In the Joint Stipulation, Burch
waived his rights under the Sixth Amendment and Blakely v. Washington, 124 S. Ct.
2531 (2004). The parties further agreed the Iowa and Wisconsin sentences “are for
conduct that is relevant conduct in this federal case[,]” and, accordingly, the Iowa and
Wisconsin sentences should run concurrently with the sentence imposed in the instant
case.

       After receiving the Joint Stipulation, the district court questioned the
government’s position that the Iowa and Wisconsin sentences should run concurrently
with the federal sentence:

      The Court:           In your paragraph two, page three [of the Joint
                           Stipulation], you state that the federal sentence is to
                           be imposed concurrently with the Iowa and
                           Wisconsin sentences. . . . Do you agree that’s
                           applicable . . . ?

      The Government: Your Honor, yes, I believe that each of those two
                      sentences contain at least a portion of–a portion of
                      the facts that went into those two convictions are
                      relevant conduct in our case and, therefore, I
                      believe it is appropriate for the sentences to run
                      concurrently with those two.

      The Court:           Well, [section 5G1.3(b)] is only applicable if the
                           undischarged term of imprisonment resulted from
                           the offenses that have been fully taken into account



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                           in the determination of the offense level for the
                           instant case.

      The Government: To the best of my knowledge, that is the case.

       The district court imposed a 51-month prison sentence, to run concurrently
with the Iowa, Wisconsin, and Missouri sentences; three years supervised release; and
restitution in the amount of $10,325.84. Despite the parties’ stipulations, the district
court declined to credit Burch’s federal sentence with the time Burch had already
served on the undischarged Iowa and Wisconsin sentences. The district court further
refused to credit Burch’s sentence for the time already served on the undischarged
Missouri sentence “for the reasons set out in paragraph five of the answers of the
government to the defendant’s objections to the presentence investigation report.”
Burch reports that, as of the date of sentencing, he had served 12 months and 13 days
of the Iowa sentence; 21 months and 9 days of the Wisconsin sentence; and 27
months and 11 days on the Missouri sentence.

II.   DISCUSSION
      Burch contends the district court erred in failing to credit his federal sentence
for the time he already had served on state sentences in Iowa, Wisconsin, and
Missouri. We review de novo a district court’s interpretation of the Guidelines.
United States v. Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004).

      Section 5G1.3 deals with the sentencing of a defendant subject to an
undischarged term of imprisonment. Subsection (b) applies when “a term of
imprisonment resulted from another offense that is relevant conduct to the instant
offense of conviction under . . . § 1B1.3 (Relevant Conduct) and that was the basis
for an increase in the offense level for the instant offense.” U.S.S.G. § 5G1.3(b).
Subsection (c) provides, “[i]n any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged term

                                          -4-
of imprisonment to achieve a reasonable punishment for the instant offense.”
U.S.S.G. § 5G1.3(c) (Policy Statement).

       Burch contends section 5G1.3(b) requires he receive credit for time he already
served on his state sentences, because: (1) the government stipulated the conduct
underlying the Iowa and Wisconsin sentences was “relevant conduct” for purposes
of section 5G1.3(b); and (2) the Missouri sentence resulted from offense conduct that
“clearly qualifies as relevant conduct and was fully taken into account in the offense
level determination.” In response, the government contends: (1) the Joint Stipulation
was merely a recommendation which the district court was free to reject; and (2)
Burch failed to meet his burden to prove entitlement to receive credit under section
5G1.3(b).

       Because Burch pled guilty without a plea agreement, the Joint Stipulation was
not governed by Federal Rule of Criminal Procedure 11(c)(1)(C). The district court
correctly determined it was not bound by stipulated facts, because the Guidelines
permit a district court to evaluate the evidence independently before imposing a
sentence. See U.S.S.G. § 6B1.4 (Policy Statement) (“The court is not bound by the
stipulation, but may with the aid of the presentence report, determine the facts
relevant to sentencing.”); United States v. DeWitt, 366 F.3d 667, 671 (8th Cir. 2004)
(stating “the district court correctly observed that it was not bound by the drug
quantity or base offense level agreed to by the parties”). Therefore, the district court
was free to determine whether Burch’s state convictions involved conduct relevant
to the instant offense.

      In this case, the district court eschewed section 5G1.3(b), because the court
found Burch’s state convictions were not fully taken into account in calculating the
federal offense level. The district court, therefore, imposed a sentence under section
5G1.3(c). A district court’s choice between applying section 5G1.3(b) or section
5G1.3(c) usually turns upon the extent to which the offenses in question are related,

                                          -5-
and such relatedness inquiries are necessarily fact-sensitive. See United States v.
French, 46 F.3d 710, 717 (8th Cir. 1995) (holding a district court’s determination of
whether a state conviction was part of the same relevant conduct as the charged
conduct, for purposes of section 5G1.3, is a factual finding reviewed for clear error).
Accordingly, our appellate review is for clear error. Id. In light of Burch’s failure to
present evidence supporting his claim that the conduct underlying his state court
convictions was “relevant conduct” for purposes of section 5G1.3(b), we hold the
district court did not clearly err in declining to credit Burch’s federal sentence for the
time he already served on his state convictions.

      Having reviewed the record and sentence in light of United States v. Booker,
125 S. Ct. 738, 765-66 (2005) and 18 U.S.C. § 3553(a), we further conclude the
sentence, as imposed, is not unreasonable.

III.   CONCLUSION
       For the reasons stated above, we affirm Burch’s sentence.
                       ______________________________




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