                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 30 2003
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                          No. 03-3061

 v.                                                (No. 02-CR-40112-JAR)

 ANTONIO FLOYD,                                           (D. Kansas)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      Antonio Floyd pled guilty in federal court to one count of possession with

intent to distribute crack cocaine. He appeals the district court’s order that the

federal sentence for possession of cocaine run consecutively to an unimposed,

future state sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
      Following the federal indictment of Floyd for possession of crack cocaine

on September 17, 2002, he was released on pre-trial supervision. Six weeks later,

Floyd allegedly shot Louise Brockman, the woman whose police report led to his

indictment for drug possession. Based on the alleged shooting, the state of

Kansas charged Floyd in the Douglas County District Court with, among other

things, attempted murder.

      Floyd ultimately pled guilty to possession of cocaine in federal court, and

the district court enhanced his sentence two levels based on the presentence

report’s factual finding that Floyd had obstructed justice by shooting and

intimidating the government’s key witness. Specifically, the presentence report

found that he had “willfully obstructed . . . the administration of justice during the

course of the investigation, prosecution, or sentencing of the instant offense of

conviction” under U.S.S.G. § 3C1.1. On that basis, the federal district court

sentenced Floyd to 210 months in prison and ordered that the federal sentence run

consecutively to any undischarged sentence which might be imposed by the

Douglas County District Court in Lawrence, Kansas.

      Floyd appeals the imposition of the federal sentence as consecutive,

contending that the district court erred because: (1) the state sentence did not

exist at the time of the order, and therefore consecutive sentencing was improper;

and (2) the federal enhancement fully accounted for the conduct involved in the


                                         -2-
pending state trial, thus requiring that the sentence run concurrently under

U.S.S.G. § 5G1.3(b). In the absence of a contemporaneous objection, we review

the district court’s sentencing decision for plain error. United States v. Tisdale,

248 F.3d 964, 975 (10th Cir. 2001).

      Floyd argues, as an initial matter, that the federal district court’s decision

to sentence him consecutively to an unimposed, future state sentence was

improper. As he concedes, however, United States v. Williams, 46 F.3d 57 (10th

Cir. 1995) squarely forecloses this argument. In Williams, as here, the defendant

argued that the district court erred by ordering that a federal sentence run

consecutively to an unimposed, future state sentence. Disagreeing with the

defendant’s interpretation of 18 U.S.C. § 3584 (a), 1 we held in Williams that “no

language in section 3584(a) prohibit[s] a district court from ordering that a

federal sentence be served consecutively to a state sentence that has not yet been



      1
          18 U.S.C. § 3584(a) states:

      If multiple terms of imprisonment are imposed on a defendant at the
      same time, or . . . on a defendant who is already subject to an
      undischarged term of imprisonment, the terms may run concurrently
      or consecutively, except that the terms may not run consecutively for
      an attempt and for another offense that was the sole objective of the
      attempt. Multiple terms of imprisonment imposed at the same time
      run concurrently unless the court orders or the statute mandates that
      the terms are to run consecutively. Multiple terms of imprisonment
      imposed at different times run consecutively unless the court orders
      that the terms are to run concurrently.

                                          -3-
imposed.” Williams, 46 F.3d at 59. We conclude here that the district court

correctly followed the binding precedent of Williams.

      Floyd contends, in the alternative, that U.S.S.G. § 5G1.3(b) requires that

the sentences run concurrently rather than consecutively because the district

court’s decision to enhance his federal sentence for obstruction of justice was

predicated on the same conduct as the contemplated but unimposed, future state

sentence. Because we do not agree that the enhancement fully took the state

charges into account as described by U.S.S.G. § 5G1.3(b), we disagree.

      U.S.S.G. § 5G1.3(b) provides that “[i]f . . . the undischarged term of

imprisonment resulted from offense(s) that have been fully taken into account in

the determination of the offense level for the instant offense, the sentence for the

instant offense shall be imposed to run concurrently.” In the instant case, this

guideline would require a concurrent sentence if the federal court’s enhancement

of Floyd’s sentence for obstruction of justice had fully accounted for the

impending state prosecution for attempted murder.

      Here the federal district court enhanced Floyd’s sentence because by

shooting the government’s key witness, he interfered with the federal authorities’

prosecution of him for drug possession and thus obstructed justice under § 3C1.1.

The conduct contemplated by the state court in its impending prosecution of

Floyd, on the other hand, was Floyd’s alleged attempted murder of Brockton.


                                         -4-
       Courts have been reluctant to require concurrent sentencing in similar

contexts. See United States v. Hawley, 93 F.3d 682, 688 (10th Cir. 1996) (stating

that a two-level enhancement for failure to appear is not punishment for purposes

of double jeopardy); United States v. Grisanti, 116 F.3d 984, 987–88 (2d Cir.

1997) (concluding that an enhancement for obstruction of justice under U.S.S.G.

§ 3C1.1 does not constitute punishment for the conduct involved); United States

v. Ross, 77 F.3d 1525, 1550 (7th Cir. 1996) (holding the same); United States v.

Bellrichard, 62 F.3d 1046, 1051–52 (8th Cir. 1995) (holding the same); United

States v. Jernigan, 60 F.3d 562, 564 (9th Cir. 1995) (holding the same).

       It is not the purpose of U.S.S.G. § 5G1.3(b) to preclude a single act from

constituting an offense which is both sufficient to enhance a federal sentence and

to justify a wholly separate state criminal prosecution. Rather, the provision

requires concurrent sentencing only when the conduct contemplated by the

impending state prosecution has been “fully taken into account.” For example,

§ 5G1.3(b) would require a federal enhancement for obstruction of justice to run

concurrently to any sentence resulting from a pending state prosecution for

obstruction of justice. 2


       2
        The commentary following U.S.S.G. § 5G1.3(b) provides the following
example of when the guideline would require concurrent sentencing: a defendant
is convicted of a federal offense charging the sale of thirty grams of cocaine, and
under § 1B1.3, his sentence is enhanced for the sale of an additional fifteen
                                                                       (continued...)

                                         -5-
      As we have concluded previously, the province of the guideline is to

“ensure that no defendant is punished twice for the same crime.” United States v.

Hurlich, 293 F.3d 1223, 1229 (10th Cir. 2002) (quotation omitted). While

obstruction of justice and attempted murder might, as here, sometimes result from

the same course of conduct, by no stretch of the imagination are they the same

crime. Thus, we conclude that the pending state prosecution for attempted murder

was not “fully taken into account” under U.S.S.G. § 5G1.3(b) by the district

court’s enhancement of Floyd’s federal sentence for obstruction of justice;

consequently, the sentencing guidelines do not require a concurrent sentence in

this case. Finding no plain error in the decision to sentence consecutively rather

than concurrently, we AFFIRM.

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




      2
        (...continued)
grams. However, defendant had already been convicted and sentenced for the sale
of the additional fifteen grams in state court. An enhancement for the sale of the
additional cocaine, in this instance, should be imposed to run concurrently to the
state sentence.

                                         -6-
