                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 26 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 09-30166

               Plaintiff - Appellee,             D.C. No. 2:08-CR-06069-LRS

   v.
                                                 MEMORANDUM *
 ROGER BENSON,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Eastern District of Washington
                    Lonny R. Suko, Chief District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Roger Benson appeals from the 33-month sentence imposed following his

guilty-plea conviction for escape from custody, in violation of 18 U.S.C. § 751.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

AH/Research
       Benson contends that the district court plainly erred when it failed to give

him credit for the time served on an undischarged concurrent state sentence, under

U.S.S.G. § 5G1.3(b)(1).

       Benson’s contention lacks merit because the state sentence did not result

from “relevant conduct,” see U.S.S.G § 1B1.3, and was not used to increase

Benson’s base offense level. Cf. United States v. Armstead, 552 F.3d 769, 783-84

(9th Cir. 2008).

       AFFIRMED.




AH/Research                                                                    09-30166
