                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 01-1120EA
                                  _____________

United States of America,               *
                                        *
             Appellee,                  * On Appeal from the United
                                        * States District Court
      v.                                * for the Eastern District
                                        * of Arkansas.
                                        *
Edgar Lynn Davis,                       * [Not To Be Published]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 31, 2001
                                 Filed: June 19, 2001
                                  ___________

Before RICHARD S. ARNOLD, FAGG, and MORRIS SHEPPARD ARNOLD,
       Circuit Judges.
                           ___________

PER CURIAM.

       Edgar Lynn Davis was caught by police with three sticks of dynamite in the
trunk of his car, and was charged with being a felon in possession of explosives in
violation of 18 U.S.C. § 842 (i)(1). He pleaded guilty and was sentenced to 96 months
(8 years) in prison to be followed by three years of supervised release.
       In the District Court,1 Mr. Davis requested that his federal sentence run
concurrently with a state sentence, giving medical reasons for wanting to get out of the
state prisons as soon as possible. The government, for its part, requested an upward
departure on the basis of Mr. Davis's extensive criminal record (he had 27 criminal-
history points, more than twice the number required for a criminal-history category of
VI). It also argued that the District Court lacked authority to make the sentences run
concurrently, citing United States v. Goldman, 228 F.3d 942 (8th Cir. 2000), cert.
denied, 121 S. Ct. 1149 (2001). The District Court agreed and set the sentence to run
consecutively with the undischarged state sentence, but it declined to depart upward
from the Guideline range. The parties later agreed that Goldman did not govern Mr.
Davis's case, and a motion was filed to correct or clarify the judgment. In its order on
that motion, the District Court acknowledged its discretion to run the sentence
concurrently with the state sentence. The order continues: "[f]or the same reasons
stated at the sentencing hearing, which would have supported an upward departure in
this case, Defendant's sentence shall run consecutive to his current state sentence."

       Mr. Davis's pro se brief does not explicitly allege any particular error on the part
of the District Court. Distilled to essentials, it points out that the District Court
sentenced him at the top of the applicable Guideline range and requests that this Court
grant the relief which that Court denied. Mr. Davis wants his remaining state sentence,
which he calculates at ten years, to be "absorbed by the mandated (96) ninety-six
month federal sentence," and to be served at the federal facility in Springfield,
Missouri. Brief of Appellant, Pro Se, at 4-5. Consistently with his statements at
sentencing, Mr. Davis claims that he has a severe heart condition and requires better
medical attention than the state prison system can provide. Mr. Davis's counsel regards
the appeal as frivolous and has filed a motion to withdraw. In a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), counsel treats the appeal as raising the



      1
        The Hon. Stephen M. Reasoner, United States District Judge for the Eastern
District of Arkansas.

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question of whether the District Court abused its discretion in declining to run the
sentences concurrently.

      On the facts presented here, this question would be governed by U.S.S.G.
§ 5G1.3(c). That section provides that, where the defendant was not under sentence
of imprisonment at the time of the offense, but is subject to an undischarged term of
imprisonment at the time of sentencing, "the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or consecutively to the prior
undischarged term of imprisonment to achieve a reasonable punishment for the instant
offense." At the time Mr. Davis was caught with the dynamite, he was awaiting a plea
hearing on a state charge of manufacturing methamphetamine. Before his federal
sentencing, he pleaded guilty to the state charge and received a 15-year sentence of
imprisonment. He then pleaded guilty to the federal charge. Thus, he was subject to
an undischarged term of imprisonment at sentencing, but not at the time of his federal
offense. Section 5G1.3(c) therefore applies to his case. See United States v. Lange,
146 F.3d 555, 556 (8th Cir. 1998).

       We see no reversible error in the District Court's application of that guideline to
Mr. Davis. In United States v. Plumley, 207 F.3d 1086, 1093 (8th Cir. 2000), we
reviewed a District Court's decision to impose a federal sentence consecutive to a state
sentence that had resulted from a state parole revocation just before the defendant's
federal sentencing. In that case, the District Court erroneously believed that it lacked
discretion to impose a concurrent sentence under section 5G1.3(c). We upheld the
consecutive sentence anyway, because it was clear that the District Court would not
have reached a different result even if it had correctly understood its discretion, and
because the sentence imposed was consistent with the Guidelines. Here, Mr. Davis
received a sentence within the Guideline range, despite a criminal history that would
have justified an upward departure. See United States v. Starnes, No. 00-2729, 2001
WL 173626, at *1 (8th Cir. Feb. 14, 2001) (upward departure was within district
court's discretion where defendant had over 20 criminal-history points). Mr. Davis's


                                           -3-
medical condition, which the District Court considered at sentencing, does not make
this punishment unreasonable.

      Our independent review of the record, see Penson v. Ohio, 488 U.S. 75 (1988),
reveals no other non-frivolous issues for appeal. We therefore affirm the District
Court's judgment and grant counsel's motion to withdraw.

      A true copy.

            Attest:

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




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