                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1432
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Anthony Allen Collier,                   *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: September 24, 2009
                                  Filed: November 6, 2009
                                   ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       Anthony Allen Collier pleaded guilty to bank fraud, fraudulent use of
identification, and fraudulent use of a social security number in violation of 18 U.S.C.
§§ 1344 and 1028(a)(7), and 42 U.S.C. § 408(a)(7)(B). The district court sentenced
him to 100 months in prison, applying the 2002 version of the then-mandatory
Sentencing Guidelines and departing upward by four offense levels because Collier
caused his victims substantial harm and his criminal history category VI
underrepresented the seriousness of his prior crimes. Collier appealed, arguing, inter
alia, that the district court erred in treating the Guidelines as mandatory under the
supervening decision in United States v. Booker, 543 U.S. 220 (2005). We affirmed,
concluding that the district court did not commit plain Booker error. United States v.
Collier, 413 F.3d 858, 861 (8th Cir.), cert. denied, 546 U.S. 1010 (2005).

       Collier then filed a motion for post-conviction relief under 28 U.S.C. § 2255
arguing, inter alia, that his trial attorney was prejudicially ineffective in failing to
object to the district court applying the 2002 version of the Guidelines, which post-
dated all of Collier’s offenses. The district court denied the motion, and we denied
a certificate of appealability. Collier petitioned for a writ of certiorari, and the
Solicitor General urged the Supreme Court to vacate our denial of a certificate of
appealability because the 2000 version of the Guidelines should have been applied and
would have resulted in a lower Guidelines range. The Supreme Court granted
certiorari and remanded “in light of the position asserted by the Solicitor General.”
Collier v. United States, 128 S. Ct. 867, 867 (2008). We promptly remanded,
directing the district court to resentence “using the [correct] version of the Federal
Sentencing Guidelines Manual.” On remand, the district court1 applied the 2000
version of the Guidelines and resentenced Collier to 88 months in prison. He appeals,
arguing that the district court committed procedural errors in applying the advisory
Guidelines and erred in refusing to run the federal sentence concurrently with the
undischarged term of a Kansas state court sentence Collier was then serving. We
affirm.

                                           I.

      At resentencing, the district court determined Collier’s base offense level and
enhancements under the 2000 Guidelines and then applied the same upward
departures it applied in determining the initial sentence. This resulted in a revised
Guidelines range of 77 to 96 months. Collier does not appeal these determinations.


      1
      The HONORABLE DEAN WHIPPLE, United States District Judge for the
Western District of Missouri.

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Rather, he argues that the district court committed procedural error by treating the
Guidelines as mandatory and by failing to consider the statutory § 3553(a) sentencing
factors. These issues were waived, and not merely forfeited, in the district court. See
United States v. Olano, 507 U.S. 725, 732-34 (1993). At the start of the hearing,
Judge Whipple defined the task at hand:

             The way I see this, the only thing I have to do is to apply the 2000
      version of the Guidelines to this case. We’ve had a hearing, I’ve made
      my findings on denial and acceptance of responsibility, I’ve made my
      ruling that I’m going to depart, and if I’m wrong, please tell me.

Defense counsel replied, “I think that’s correct.” Because we rejected on direct appeal
a contention it was plain error to apply the Guidelines as mandatory, and because our
remand instructed the court to resentence using the correct version of the Guidelines,
this response waived any claim that more was required procedurally.

       Even if these contentions were not waived, our review is for plain error. United
States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008), cert. denied, 129 S. Ct. 998
(2009). We find none. After the district court announced it would adhere to its prior
enhancement and upward departure determinations, its request that the parties
recommend sentences “within [the Guidelines] range” did not, without more,
demonstrate that the court had forgotten that the Guidelines are now advisory. Nor
do we require a district court “to mechanically recite the § 3553(a) factors when, as
here, it is clear from the record that the court properly considered those factors.”
United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009); see United States v.
Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, 129 S. Ct. 2452 (2009). Finally,
our conclusion on direct appeal that “Collier cannot establish a ‘reasonable
probability’ that he would have received a more favorable sentence had the court
considered the guidelines advisory,” Collier, 413 F.3d at 861, applies to the
resentencing as well.


                                          -3-
        Collier further argues that the district court committed procedural error by
failing to adequately explain the reasons for the sentence it imposed. We disagree. At
the conclusion of the initial sentencing hearing, the court explained at length why it
was imposing a substantial upward departure. At the resentencing, the court explained
that it had reviewed the prior transcript and the presentence report “in detail” and was
“departing on . . . the same basis as I did before.” These explanations, viewed in their
entirety, were sufficient. Compare United States v. Rogers, 423 F.3d 823, 827-28 (8th
Cir. 2005).

                                          II.

       In a pro se supplemental brief, Collier argues that, under U.S.S.G. § 5G1.3(b),
the district court erred in not making his federal sentence run concurrently with the
undischarged term of a Kansas state sentence for a similar fraud offense. This
contention is without merit for multiple reasons. First, it is procedurally barred. At
the initial sentencing, Collier and defense counsel urged the district court to credit
time served on the Kansas sentence against this federal sentence because the conduct
underlying the state sentence was relevant conduct in determining the federal
sentence. The district court denied the request. Collier did not raise the issue on
direct appeal. Therefore, he may not obtain § 2255 relief unless he can show cause
and prejudice excusing this procedural default. See United States v. Wilson, 997 F.2d
429, 431 (8th Cir. 1993). He has made no such showing.

       Second, Collier now argues for a sentence concurrent with “the undischarged
term” of the Kansas sentence under § 5G1.3(b). But at both sentencing hearings, he
asked the district court for a sentence credit, not for concurrent sentences, no doubt
because he advised the court at the first hearing that he had only one more month to
serve on the Kansas sentence. At that hearing, defense counsel explicitly advised the
court, “I’m not asking for concurrent sentence with the state sentence. I’m just asking
for credit for time served.” Thus, the concurrent sentence issue was waived.

                                          -4-
       Third, Collier’s concurrent sentences argument fails on the merits. He relies on
§ 5G1.3(b) of the 2000 Guidelines, which required a federal court to impose a
concurrent sentence only if the conduct underlying an undischarged sentence was
“fully taken into account in the determination of the offense level for the instant
offense.” U.S.S.G. § 5G1.3(b) (2000). Collier concedes the conduct underlying his
Kansas sentence was not fully taken into account in determining his federal sentence.
He argues that the 2000 version of § 5G1.3(b) nonetheless applied because that
conduct could have qualified as relevant conduct. We squarely rejected this
contention in United States v. Shafer, 429 F.3d 789, 791-92 (8th Cir. 2005). Thus, if
Collier had requested concurrent sentences, the district court would have had
discretion to impose concurrent or consecutive sentences under § 5G1.3(c) (2000).

       Fourth, if Collier had appealed the district court’s denial of his request for a
sentence credit, the contention would have been rejected on direct appeal as contrary
to 18 U.S.C. § 3585(b) as construed in United States v. Wilson, 503 U.S. 329 (1992).

      The judgment of the district court is affirmed.
                     ______________________________




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