UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5143

DELPHONSO OSCAR BREWER,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-200)

Submitted: October 10, 1995

Decided: January 8, 1996

Before WILKINS, NIEMEYER, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Lisa B. Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Delphonso Oscar Brewer was convicted by a jury of bank robbery,
18 U.S.C.A. § 2113(a) (West Supp. 1995). He was sentenced to a
term of 220 months to be served consecutively to a state prison sen-
tence he was already serving for other offenses. Brewer appeals his
conviction, contending that the evidence was insufficient to convict
him. He appeals his sentence, arguing that the district court misap-
plied United States Sentencing Commission, Guidelines Manual,
§ 5G1.3(c), p.s. (Nov. 1994). We affirm Brewer's conviction and his
sentence.

On May 20, 1994, a bank in Greensboro, North Carolina, was
robbed by a black male wearing a green windbreaker, a straw hat with
a green plastic visor, and tinted sunglasses. He gave the teller a
demand note and a white plastic bag with red lettering, into which the
teller put $2000. After the robber fled the bank, the hat, jacket, and
bag were found nearby. A fingerprint lifted from the visor of the hat
matched Brewer's fingerprints. A teller who observed the robber
identified Brewer from a photographic lineup. The teller who was
approached by the robber also identified Brewer, but with less cer-
tainty. Both tellers identified Brewer in court as the person who
robbed the bank. Brewer's motion for acquittal was denied. He pres-
ented no evidence and was convicted of the robbery.

A conviction must be upheld if there is substantial evidence, taken
in the light most favorable to the government, to support a finding of
guilt. Glasser v. United States, 315 U.S. 60, 80 (1942). Circumstantial
as well as direct evidence is considered, and the government is given
the benefit of all reasonable inferences from the facts proven to the
facts sought to be established. United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982).

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Brewer contends that his fingerprint on the hat visor was not strong
evidence of guilt because there were also fingerprints on the visor
which were not his. He challenges the identifications made from the
photo lineup by the tellers because they were made about six weeks
after the robbery, and he argues that the in-court identifications were
unreliable because Brewer was the only black male in the courtroom.
However, defense counsel brought out all these factors during his
cross-examination of the government witnesses. On the evidence
presented, a rational factfinder could find Brewer guilty of the rob-
bery.

Just before his federal indictment for the bank robbery, Brewer had
been sentenced in state court for prior convictions of robbery, assault
with a deadly weapon, and armed robbery. At the same time, his term
of probation for an earlier robbery conviction was revoked. Following
Brewer's federal bank robbery conviction, the probation officer rec-
ommended that he be sentenced as a career offender with a guideline
range of 210-240 months.

At Brewer's sentencing hearing, the district court asked how USSG
§ 5G1.3 (Sentence on Defendant Subject to Undischarged Term of
Imprisonment) would affect his sentence. After consulting with at
least two probation officers during a recess, the court decided that
§ 5G1.3(c) applied.* Defense counsel made no objection, but
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*Guideline § 5G1.3(a) applies when the instant federal offense
occurred during the undischarged term of imprisonment and requires a
consecutive sentence. Section 5G1.3(b) calls for a concurrent sentence
when the defendant's undischarged term of imprisonment results from
conduct that was fully taken into account as relevant conduct in deter-
mining his offense level for the instant federal offense. USSG § 5G1.3,
comment. (n.2).

Section 5G1.3(c) applies in any other case. It requires the district court
to estimate what the sentence would be if the defendant were sentenced
at the same time for the instant offense and the offenses underlying the
undischarged term of imprisonment, and to make the sentence for the
instant offense consecutive to the undischarged term to the extent neces-
sary to achieve a reasonable incremental punishment. Although
§ 5G1.3(c) is a policy statement, it is enforced like a guideline, taking
into account that the commentary allows the district court some discre-
tion in fashioning a sentence. United States v. Wiley-Dunaway, 40 F.3d
67, 70-71 (4th Cir. 1994).

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requested a concurrent sentence. The attorney told the court that he
had attempted to work through the formula set out in the commentary
to § 5G1.3(c) for calculating a reasonable incremental punishment,
but had concluded that it would ultimately be a matter for the court's
discretion. After the district court expressed uncertainty about how to
determine a reasonable incremental punishment, defense counsel
again stated that it was "something best decided in the Court's discre-
tion." The district court eventually decided, in the absence of any
other information, that Brewer would serve about 20 months in state
custody and imposed a consecutive sentence of 220 months.

On appeal, Brewer first contends that § 5G1.3(b) applied because
his state offenses were considered in determining that he was a career
offender, which in turn determined his final offense level. Because
this view does not correspond with the clear intent of the guideline
and commentary, it is without merit. The district court correctly deter-
mined that § 5G1.3(c) applied in Brewer's case.

Brewer next argues that, even if § 5G1.3(c) applied, the district
court erred in imposing a consecutive sentence without more com-
plete information about how much time he had left to serve on his
state sentences. While a district court's decision to impose a concur-
rent or consecutive sentence is reviewed for abuse of discretion, the
question of whether the court has properly applied a guideline section
to the defendant is reviewed de novo. United States v. Puckett, 61
F.3d 1092, 1097 (4th Cir. 1995).

Although Brewer did not dispute in the district court that he was
serving a 20-year state sentence, he now maintains that he is subject
to 40 years of imprisonment in the state system because the presen-
tence report does not indicate that any of his state sentences were to
run concurrently. The government counters that sentences generally
run concurrently in North Carolina and that robbery sentences must
be consecutive to undischarged sentences. Because Brewer was not
serving a prior sentence when he received three robbery sentences on
July 18, 1994, the government contends that those sentences are con-
current, making the total undischarged sentence 20 years.

When Brewer was sentenced, the district court did not have defini-
tive information about the length of Brewer's aggregate sentence, or

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the time served to that date, or the time remaining. Because Brewer
tacitly agreed that the undischarged sentence was a 20-year sentence,
and has not shown conclusively on appeal that it is longer, the district
court did not plainly err in using that figure. The court had no choice
but to estimate how much of his state sentence Brewer would actually
serve.

Recent Fourth Circuit decisions have explained the procedure to be
used in applying § 5G1.3(c). See Puckett , 61 F.3d at 1097-98; United
States v. Hill, 59 F.3d 500, 502-03 (4th Cir. 1995); United States v.
Stewart, 59 F.3d 496, 498 (4th Cir. 1995). The district court should
first determine the guideline range for the instant federal offense
(instant offense guideline range) and the guideline range which would
apply if sentence were being imposed for both the instant offense and
the offenses underlying the undischarged term (the combined guide-
line range). Second, the court should consider the time served and the
time remaining on the undischarged sentence and impose a sentence
within the instant offense guideline range which results in a sentence
within the combined guideline range. Third, the court should decide
whether the sentence must be concurrent or consecutive, in whole or
in part, to the undischarged sentence in order to achieve a sentence
within the combined guideline range. Hill, 59 F.3d at 502-03.

If the court determines that this procedure is impractical because
of lack of information about the prior offenses or would unduly com-
plicate the sentencing process, it may employ a reasonable alternative
method of determining the appropriate incremental punishment.
Stewart, 59 F.3d at 498.

In Brewer's case, the district court did not have the benefit of Hill
or Stewart. The district court did not determine a combined guideline
range for the instant offense and the offenses underlying Brewer's
state sentence. Because Brewer is a career offender, his combined
guideline range would, in fact, be lower than the instant offense
guideline range (the career offender guideline range). See Hill, 59
F.3d at 501 n.2, 503 n.7. Thus, initially, it appears that no incremental
penalty would be due and a concurrent sentence would be appropri-
ate.

However, the district court's task was made somewhat more com-
plex in that Brewer was both a career offender and was serving a state

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probation revocation sentence. Brewer was on probation at the time
the instant offense was committed and the 10-year undischarged sen-
tence in paragraph 31 of the presentence report resulted from the
revocation of his probation. Application Note 4 to§ 5G1.3 instructs
the district court to impose a sentence consecutive to a probation
revocation sentence. See Puckett, 61 F.3d at 1097-98.

Mindful of the admonition in the commentary that§ 5G1.3(c) is to
be applied in a manner that does not unduly complicate or prolong the
sentencing process, USSG § 5G1.3(c), comment. (n.3), we find that
the sentence imposed by the district court was reasonable. The court
estimated that Brewer would serve no more than 20 months of his
state sentence, imposed a sentence at the mid-point of the career
offender guideline range, and made it consecutive to the state sen-
tence. The sentence adequately takes into account the two competing
approaches at work in this case.

We therefore affirm Brewer's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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