                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2304
                                   ___________

United States of America,             *
                                      * Appeal from the United States
           Plaintiff – Appellee,      * District Court for the
                                      * Eastern District of Arkansas
     v.                               *
                                      *
Marketus Laddarral Lowe,              *
                                      * [UNPUBLISHED]
           Defendant – Appellant.     *
                                 ___________

                             Submitted: February 27, 2009
                                Filed: March 3, 2009
                                 ___________

Before MURPHY and SMITH, Circuit Judges, and KAYS,1 District Judge.

                                   ___________
PER CURIAM.


       Marketus Laddarral Lowe pled guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1), and the district court2 sentenced him to serve
120 months consecutive to a yet to be imposed state sentence. Lowe argues that the
district court lacks authority under 18 U.S.C. § 3584(a) to impose a sentence to run

      1
      The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri, sitting by designation.
      2
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.
consecutive to a yet to be imposed state sentence. He concedes that this argument is
contrary to our precedent in United States v. Mayotte, 249 F.3d 797, 799 (8th Cir.
2001) (per curiam), to the effect that "the authority to impose such a federal sentence
. . . falls within the broad discretion granted to the court." Lowe suggests that we
revisit our precedent in light of the existing circuit split on this question. Compare id.,
and United States v. Williams, 46 F.3d 57 (10th Cir. 1995) (§ 3584(a) does not
prohibit a district court from imposing a consecutive sentence in these circumstances),
and United States v. Ballard, 6 F.3d 1502 (11th Cir. 1993) (rejecting argument that
federal court lacks authority to impose a federal sentence to run consecutive to a yet
to be imposed state sentence because it would hinder state sentencing discretion), and
United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991) (per curiam) (holding
that district court "may consider subsequent sentences anticipated, but not yet
imposed, in separate state court proceedings" when exercising discretion to impose
consecutive sentence), with United States v. Donoso, 521 F.3d 144, 149 (2d Cir.
2008) (per curiam) (legislative history and terms of § 3584(a) permit imposition of
consecutive sentence only where multiple terms imposed at the same time or where
defendant is already subject to an undischarged term), and United States v. Quintero,
157 F.3d 1038, 1039–41 (6th Cir. 1998) (same), and United States v. Clayton, 927
F.2d 491, 492 (9th Cir. 1991) (same).


       Several days before the scheduled oral argument the government filed an
unopposed motion that the appeal be decided without oral argument, stating that the
United States now agrees with appellant that a district court lacks authority to
structure a federal sentence to run consecutive to one a state court has not yet
imposed. With its motion the government submitted a copy of a brief filed by the
Solicitor General in opposition to a petition for certiorari in connection with a Fifth
Circuit decision, United States v. DeLeon, No. 07-10548, 2008 U.S. App. LEXIS
11593 (5th Cir. May 30, 2008) (per curiam), petition for cert. filed, (U.S. Aug. 27,
2008) (No. 08-6055). The Fifth Circuit is one of the three circuits with a position
similar to that in our Mayotte decision. The Solicitor's brief noted that the Supreme

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Court has shown little interest in resolving the circuit split and that this sentencing
issue has little practical impact because "state courts and the Federal Bureau of Prisons
can reach their own decisions about crediting service in another sovereign's
correctional system, irrespective of whether 18 U.S.C. 3584(a) authorizes federal
district courts to embody such decisions in a judgment of conviction and sentence."


      Since the government's change in position was only communicated shortly
before the scheduled hearing and it made no substantive argument about the issue
before the court and no statement about whether it would seek en banc review of our
governing rule, we ordered the parties to appear as scheduled. Appellant's counsel
then moved for a continuance of the argument on the basis of an undisclosed illness.
We granted that motion, but now upon reflection we agree with the parties that oral
argument is not needed in light of the record before the court.


      Because Lowe's sentence was consistent with our controlling circuit precedent
in Mayotte, we now affirm the judgment of the district court. See United States v.
Kent, 531 F.3d 642, 657 (8th Cir. 2008).

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