                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3828
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Eastern
                                         * District of Missouri.
Alfred E. Murphy,                        *
                                         *       [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: May 14, 2003

                                   Filed: May 22, 2003
                                    ___________

Before WOLLMAN and BEAM, Circuit Judges, NANGLE,1 District Judge.
                          ___________

PER CURIAM.

       Alfred E. Murphy, Jr. pled guilty to being a felon in possession of a firearm in
violation of Title 18, United States Code, Section 922(g)(1). He received a sentence
of 110 months, to run consecutively with one state prison sentence and concurrently
with a second state prison sentence. Murphy appeals the portion of his sentence
mandating that it run consecutively with the first state prison sentence. We affirm.



      1
       The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
       There are two state sentences relevant to this case. The first sentence is a
fifteen-year sentence from a felony charge of possession of a controlled substance
with the intent to distribute entered on March 11, 1998, case number 33R019800087.
Murphy's sentence was suspended and he was placed on five years' probation.

      On December 11, 2001, Murphy was sentenced to ten years for possession of
a controlled substance with intent to distribute by the state court, case number
01CR744908-01. This charge resulted in the revocation of the first suspended
sentence, and the original fifteen-year sentence was ordered to be executed
consecutive to the ten-year state sentence.

      Murphy pled guilty to the federal charge of possessing a firearm as a felon on
August 12, 2002. At the sentencing hearing, Murphy requested that his federal
sentence be imposed concurrently to the state sentences from both cases mentioned
above. The district court2 sentenced Murphy to 110 months' imprisonment, to be
served consecutively to the first Missouri term of imprisonment from case number
33R019800087, and concurrently with the second sentence from case number
01CR744908-01. Murphy appeals this sentence, employing two arguments.

      First, Murphy argues that the district court erred in determining that his federal
sentence must be served consecutively to the undischarged term of imprisonment in
case number 33R019800087 because United States Sentencing Guidelines Manual
§ 5G1.3(c) ("U.S.S.G.") provided the district court with the discretion to impose the
sentence concurrently or consecutively. Unfortunately, Murphy's argument must fail
because an Eighth Circuit panel already decided in United States v. Smith, 282 F.3d
1045, 1048 (8th Cir. 2002), that application note 6 to § 5G1.3 mandates a consecutive
sentence in circumstances like Murphy's. While we noted in Smith that United States


      2
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                          -2-
v. Maria, 186 F.3d 65 (2d Cir. 1999), decided that application note 6 does not
mandate consecutive sentences, we instead followed the First, Fifth and Ninth
Circuits' holdings that it did mandate consecutive sentences. Smith, 282 F.3d at 1048.
We urged the Sentencing Commission to clarify its intention in application note 6 in
Smith, id., but since they have not, we are bound by the previous panel's decision and
cannot overturn it except on en banc review. United States v. Goldman, 228 F.3d
942, 944 (8th Cir. 2000).

       Murphy also argues that the district court erred in determining that his sentence
in this case must be served consecutively to the sentence in case number
33R019800087, because U.S.S.G. § 5G1.3, cmt. n.5, provided the sentencing court
the discretion to override application note 6's mandatory requirement. This is so,
Murphy argues, because he was subject to multiple undischarged terms of
imprisonment which called for the application of different rules. The panel in United
States v. Lathern, 59 Fed. Appx. 167, 168 (8th Cir. 2003) (unpublished opinion),
determined that application note 5 does not trump application note 6 in this manner.
Thus, Murphy's second claim must also fail.

      For the reasons stated above, we affirm the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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