                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-4083
                                                    (D.C. No. 99-CR-595-B)
    KENNETH R. HARDY,                                      (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA, Chief Judge, PORFILIO , Circuit Judge, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Kenneth R. Hardy appeals the sentence imposed by the United States

District Court for the District of Utah following his entry of a guilty plea to

sexual exploitation of children, in violation of 18 U.S.C. § 2251. He contends

that the court erred in making the minimum statutory sentence of ten years run

consecutively to the sentences imposed by the state of Utah for related offenses.

We affirm.

      Mr. Hardy pled guilty in state court to one count of rape of a child, one

count of sodomy of a child, and one count of aggravated sexual abuse of a child,

for which he was sentenced to three consecutive five-year to life terms. He

subsequently pled guilty in federal court to sexual exploitation of a child for

producing a videotape depicting a child engaging in sexually explicit conduct.

      Mr. Hardy contends that under USSG § 5G1.3(b) his federal sentence

should run concurrently to the state sentence imposed. Section 5G1.3(b) provides

that the sentence for the instant offense is to run concurrently to an undischarged

term of imprisonment if “the undischarged term of imprisonment resulted from

offense(s) that have been fully taken into account in the determination of the

offense level of the instant offense.”

      He argues that the state offenses have been “fully taken into account” in

determining his federal sentence because the base offense level of the federal

sentence was increased because he is the grandfather of the victim and because


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the victim is under 12 years of age. This argument is without merit. The increase

in the base offense level had nothing to do with the conduct alleged in the state

proceedings, but rather his relationship with the victim and her age.      See United

States v. Tisdale , 248 F.3d 964, 976 (10th Cir. 2001) (holding that where the base

offense level was increased because of the defendant’s conduct in commission of

the federal offense and not for his conduct in the state offenses, § 5G1.3(b) is

inapplicable);   United States v. Contreras , 210 F.3d 1151, 1153 (10th Cir. 2000)

(rejecting the defendant’s contention that § 5G1.3(b) mandated a concurrent

sentence where the district court fully took into account his state robbery

conviction when determining the career offender status). Moreover, the state

charges were not considered in arriving at Mr. Hardy’s criminal history category.

See United States v. Caraballo    , 200 F.3d 20, 26 (1st Cir. 1999) (§ 5G1.3(b)

inapplicable where state conviction did not affect federal offense level, did not

impact criminal history category, and federal conspiracy conviction was grounded

in eight other burglaries in addition to state conviction) (cited with approval in

Contreras , 210 F.3d at 1153).

       Mr. Hardy also argues that § 5G1.3(b) applies because the state charges

required proof of the same conduct as the federal charges.       See Contreras , 210

F.3d at 1153 (§ 5G1.3(b)’s “central aim is to ensure no defendant is punished

twice for the same crime.”). This argument is also without merit. The federal


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charges arose out of the videotaping of the abuse whereas the state charges were

for the commission of the acts themselves. Accordingly the state charges did not

require proof of the same conduct.

      Mr. Hardy argues in the alternative that the district court abused its

discretion under § 5G1.3(c). Section 5G1.3(c), a policy statement, provides that a

sentence may be imposed either concurrently, partially concurrently, or

consecutively to a prior undischarged term of imprisonment in order “to achieve a

reasonable punishment for the instant offense.” He contends that it is patently

unreasonable that his ten-year federal sentence be served consecutively to his

state sentence of three consecutive five-year to life terms. We have reviewed the

record and determine that, given the facts and circumstances of this case, the

district court did not abuse its discretion.

      AFFIRMED.



                                         Entered for the Court



                                         Deanell Reece Tacha
                                         Chief Judge




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