                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                        Nos. 11-10367; 11-10389            SEP 12, 2011
                                                            JOHN LEY
                         Non-Argument Calendar                CLERK
                       ________________________

                  D.C. Docket No. 4:10-cr-10026-KMM-1

UNITED STATES OF AMERICA,



                                                     Plaintiff-Appellee,

  versus

ERNESTO GRIMON,

                                                     Defendant-Appellant.

                       ________________________

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

                           (September 12, 2011)

Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
       Ernesto Grimon appeals his 33-month sentence, imposed after he pleaded

guilty to conspiring to possess oxycodone with intent to distribute, in violation of

21 U.S.C. § 846, and counterfeiting, in violation of 18 U.S.C. § 471. On appeal,

Grimon argues that the district court misunderstood its authority to order that his

federal sentence run concurrently with his undischarged state sentences.1

       The imposition of a consecutive, rather than concurrent, sentence is an issue

of law subject to plenary review. United States v. Ballard, 6 F.3d 1502, 1505

(11th Cir. 1993). A district court may order that a federal sentence run

concurrently with an undischarged state sentence. See United States v. Fuentes,

107 F.3d 1515, 1519 n.6 (11th Cir. 1997); see also 18 U.S.C. § 3584(a); U.S.S.G.

§ 5G1.3(c). Ordinarily, the district court’s misapprehension of its legal authority

to impose a particular sentence is reversible error. See United States v. McDaniel,

338 F.3d 1287, 1288 (11th Cir. 2003) (per curiam). But we will not vacate a

sentence where the district court explains that it would have imposed the same

sentence had it fully understood its legal authority. See United States v. Dulcio,

441 F.3d 1269, 1277 (11th Cir. 2006) (per curiam) (district court’s imposition of



       1
         Grimon also argues that his sentence is procedurally and substantively unreasonable.
Because we agree that the district court misunderstood its authority to impose a concurrent
sentence and that its error was not harmless, we do not reach Grimon’s reasonableness
arguments.

                                               2
sentence under mandatory Guidelines scheme was harmless error where it

provided alternative reasoning for its sentence).

      Our review of a transcript of the sentencing hearing reflects that the district

court was unsure about its authority to order that Grimon’s federal sentence run

concurrently with his undischarged state sentences. After questioning its authority

to do so, the district court indicated that it would not necessarily impose a

concurrent sentence even if it had the authority, and it later indicated that a

concurrent sentence may not have been appropriate in light of Grimon’s criminal

history. The district judge also expressed some doubt about whether a concurrent

sentence would be carried out by the Bureau of Prisons. We find these statements

to be equivocal and ambiguous, and thus do not clearly indicate that the district

court would have imposed the same sentence had it been fully aware of its

authority to do so. Consequently, the district court’s misapprehension was not

harmless error, and we vacate Grimon’s sentence and remand for resentencing.

      VACATED AND REMANDED.




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