                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                   In the                                January 30, 2007
                       United States Court of Appeals                                 Charles R. Fulbruge III
                                       for the Fifth Circuit                                  Clerk
                                             _______________

                                               m 06-50458
                                             Summary Calendar
                                             _______________




                                    UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                                  VERSUS

                                    CHRISTIAN SAMOL FIGUEROA,

                                                                Defendant-Appellant.



                                      _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                           m 6:05-CR-212-2
                                ______________________________



Before SMITH, WIENER, and OWEN,                            Christian Figueroa pleaded guilty of bank
  Circuit Judges.                                       robbery and aiding and abetting bank robbery
                                                        in violation of 18 U.S.C. §§ 2113(a) and 2,
PER CURIAM:*                                            and he appeals his sentence. We vacate and
                                                        remand for resentencing.

                                                                               I.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           Figueroa was arrested after a high-speed
determined that this opinion should not be pub-         chase following a bank robbery. He was pro-
lished and is not precedent except under the limited    secuted in a Texas state proceeding for various
circumstances set forth in 5TH CIR. R. 47.5.4.
offenses related to the robbery and was sen-              At issue is whether the district court prop-
tenced to fifty years’ imprisonment. He was            erly followed the guidelines’ requirement that
subsequently indicted in federal court for the         Figueroa be credited with the time he served
primary offense of bank robbery and pleaded            on his related state conviction before being
guilty.                                                sentenced in federal court. The guidelines,
                                                       U.S.S.G. § 5G1.3(b)(1), state that if a defen-
   Based on the presentence report, the court          dant has a term of imprisonment resulting from
found that Figueroa’s offense level was 29 and         a related offense, “the court shall adjust the
his criminal history score was VI, yielding a          sentence for any period of imprisonment al-
guideline range of 151 to 188 months’ impris-          ready served on the undischarged term of im-
onment. The government moved for an up-                prisonment if the court determines that such
ward departure based on several uncharged of-          period of imprisonment will not be credited to
fenses, and Figueroa moved for a downward              the federal sentence by the Bureau of Prisons.”
departure, pursuant to U.S.S.G. § 5G1.3(b), to
account for the 15 months he had already                   The commentary elaborates on the appro-
spent in state custody for the related offense.        priate application of this guideline and pro-
                                                       vides an example. The court should first de-
   The court departed upward and sentenced             termine the appropriate sentence according to
him to 240 months’ imprisonment to be served           the guideline range. If credit is due for time
concurrently with his state sentence. The de-          already served on a related state charge, that
parture was based on his use of an illegal wea-        time is then subtracted from the sentence. See
pon and stolen vehicle in the commission of            U.S.S.G. § 5G1.3 comment. (n.2(D)). If time
the offense. The court did not address Figuer-         is credited under this section, it should be not-
oa’s § 5G1.3(b) request at sentencing or in its        ed on the Judgment in a Criminal Case Order.
Judgment in a Criminal Case Order.                     See U.S.S.G. § 5G1.3 comment. (n.2(C)).

                         II.                               We have held, in a pre-Booker case, that
    After United States v. Booker, 543 U.S.            the application of § 5G1.3(b) is mandatory.
220 (2005), we continue to review a district           See United States v. Rangel, 319 F.3d 710,
court’s interpretation of the sentencing guide-        714 (5th Cir. 2003). Although Booker pro-
lines de novo. United States v. Medina-Argu-           vides sentencing judges flexibility to depart
eta, 454 F.3d 479, 481 (5th Cir. 2006). Be-            from the guideline range, it does not allow
fore imposing a non-guideline sentence, a              them to bypass a provision of the guidelines,
court must consider the guidelines. United             which still provide an anchor for our evalua-
States v. Smith, 440 F.3d 704, 707 (5th Cir.           tion of a sentence’s reasonableness. Booker
2006); United States v. Mares, 402 F.3d 511,           does not nullify § 5G1.3(b), and when that
518-19 (5th Cir.), cert. denied, 126 S. Ct. 43         section applies, sentencing judges must include
(2005). This consideration requires that the           its dictates in the calculation of the proper
court calculate the appropriate guideline range.       guideline sentence.1
Smith, 440 F.3d at 707. The court must justify
a departure from the guidelines, and “the far-
ther a sentence varies from the applicable                1
                                                            We need not, and do not, consider whether
Guideline sentence, the more compelling the            sentencing courts must, under Booker, follow
justification . . . must be.” Id.                                                         (continued...)

                                                   2
    The government argues that the court ac-
tually did grant Figueroa’s request for a down-
ward departure and that the ultimate sentence
reflects that departure. It bases its position on
the court’s statement, at sentencing, that it
would “abide by the mandate of the guideline
range.” Accordingly, the government posits
that the district court decided to depart
upwardly to 255 months before subtracting 15
months for the time already served, to reach an
ultimate sentence of 240 months, and that the
court did so without explaining its reasoning
at sentencing or in the Judgment Order.

   Even assuming, arguendo, that the govern-
ment’s characterization is accurate, the court
did not acknowledge § 5G1.3(b) in its sentenc-
ing calculations. Accordingly, we VACATE
the sentence and REMAND for resentencing.
We express no opinion on what sentence the
district court should impose on remand.




   1
    (...continued)
§ 5G1.3(b) and subtract the time served. We
conclude only that courts must include the calcula-
tion required by this section when determining the
proper guideline sentence.

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