                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3860
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Shawn M. Smith,                          *
                                         *
      Defendant - Appellee.              *
                                    ___________

                               Submitted: November 16, 2001

                                   Filed: March 15, 2002
                                    ___________

Before LOKEN, LAY, and RILEY, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

       In early November 1999, Shawn M. Smith was arrested for selling crack
cocaine while on parole from a state conviction for assault with a firearm. The State
of Nebraska revoked Smith’s parole later that month, and he returned to prison with
a tentative discharge date in October 2002. He was then indicted and pleaded guilty
to a federal charge of possessing cocaine base with intent to distribute in violation of
21 U.S.C. § 841(a)(1). The district court sentenced Smith to 121 months in prison for
this federal offense. Observing that Smith had spent almost a year in state custody
on the parole revocation sentence, the court ordered that his federal sentence be
served concurrently with the remainder of his revocation sentence. The United States
appealed, arguing the concurrent sentence is contrary to U.S.S.G. § 5G1.3(c), as
construed in application note six and prior decisions of this court. Reviewing the
district court’s application of this guidelines provision de novo, see United States v.
Roggy, 76 F.3d 189, 192 (8th Cir. 1996) (standard of review), we agree with the
government’s contention and reverse.

       Section 5G1.3 governs the imposition of a federal sentence on a defendant who
is subject to an undischarged prison term for another offense. Subsections (a) and (b)
call for mandatory consecutive or concurrent sentences in two situations. Under
§ 5G1.3(a), if defendant committed the instant offense while serving a prison term for
another offense, the new sentence must be consecutive to any undischarged term for
that other offense. On the other hand, if (a) does not apply, and if the undischarged
term resulted from an offense that is fully taken into account in determining
defendant’s guidelines offense level, § 5G1.3(b) provides that the new sentence must
be concurrent with any undischarged term. Despite the parties’ attempts to wedge
this case into one of these mandatory pigeonholes, we conclude neither applies when
the undischarged term is part of a parole revocation sentence. Rather, this case is
governed by the catch-all provision in § 5G1.3(c):

      (c) (Policy Statement) In any other case, 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.

       The language of § 5G1.3(c) connotes discretion. It gives the sentencing court
various options that it may impose to achieve a reasonable punishment. If the district
court had that discretion in this case, the government must lose its appeal. The
district court carefully considered the discharged and undischarged portions of
Smith’s revocation sentence in concluding that imposing a sentence concurrent with
the undischarged portion was “a reasonable punishment for the instant offense.” The


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government does not argue that was an abuse of discretion. Instead, it argues that the
discretion-giving language of § 5G1.3(c) does not apply in this case, because
application note 6 to § 5G1.3 mandates consecutive sentences. That note provides:

      6. Revocations. If the defendant was on federal or state probation,
      parole, or supervised release at the time of the instant offense, and has
      had such probation, parole, or supervised release revoked, the sentence
      for the instant offense should be imposed to run consecutively to the
      term imposed for the violation of probation, parole, or supervised
      release in order to provide an incremental penalty for the violation of
      probation, parole, or supervised release. See § 7B1.3 (Revocation of
      Probation or Supervised Release) (setting forth a policy that any
      imprisonment penalty imposed for violating probation or supervised
      release should be consecutive to any sentence of imprisonment being
      served or subsequently imposed).

      An initial question is whether this application note is binding on federal
sentencing courts. Section 5G1.3(c) is a policy statement. A policy statement is
binding if it “prohibits a district court from taking a specified action.” Williams v.
United States, 503 U.S. 193, 201 (1992). An application note is similarly binding
unless it is plainly erroneous or conflicts with the Constitution, a federal statute, or
the guideline it seeks to interpret. See Stinson v. United States, 508 U.S. 36, 38
(1993). Thus, if application note 6, properly construed, prohibits the district court
from imposing concurrent sentences in this situation, it is binding.

       Unfortunately, construing application note 6 has proved difficult. The problem
lies in the phrase “should be imposed to run consecutively,” which seems less
mandatory than the term “shall be imposed” found in subsections 5G1.3(a) and (b).
The first three circuits to consider the question in published opinions concluded that
application note 6 is nonetheless mandatory, and therefore the new federal sentence
must be made consecutive to the undischarged term of any state or federal parole
revocation sentence. See United States v. Alexander, 100 F.3d 24, 26-27 (5th Cir.

                                          -3-
1996); United States v. Gondek, 65 F.3d 1, 2-4 (1st Cir. 1995); United States v.
Bernard, 48 F.3d 427, 431 (9th Cir. 1995). The First Circuit’s analysis in Gondek
was particularly exhaustive; it ended by suggesting that the Sentencing Commission
“consider clarifying its intention.” 65 F.3d at 4. In an unpublished decision issued
a few months before the Fifth Circuit’s decision in Alexander, this court agreed with
the Gondek court’s reasoning and concluded that the district court lacked discretion
to impose concurrent sentences. United States v. Dungy, No. 95-3997, 1996 WL
193150 (8th Cir. Apr. 23, 1996).

       The Sentencing Commission did not clarify application note 6, as Gondek
suggested, and the Second Circuit later rejected the contrary decisions of its sister
circuits and concluded that “should” in application note 6 does not mean “shall” and
therefore note 6 does not mandate consecutive sentences. See United States v. Maria,
186 F.3d 65, 68-74 (2d Cir. 1999). After the decision in Maria, this court considered
the question again and ruled in a published opinion that application note 6 does
mandate the imposition of consecutive sentences. United States v. Goldman, 228
F.3d 942, 943-44 (8th Cir. 2000). The government argues Goldman is controlling.
But perhaps not. The panel in Goldman considered itself bound by our prior
unpublished decision in Dungy, because Goldman was decided after our panel
decision in Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000), which
declared that unpublished opinions are binding precedent, but before Anastasoff was
vacated by the Court en banc. See 235 F.3d 1054, 1056 (8th Cir. 2000).

      We need not decide the interesting question whether Goldman is controlling
precedent, because in any event we conclude that Dungy was correctly decided. In
other words, we agree with Dungy that the First, Fifth, and Ninth Circuits have
correctly construed application note 6 as mandating consecutive sentences, despite
the comment’s rather baffling use of the word “should.” However, we also note that
the Second Circuit’s contrary textual analysis in Maria is not without force. Thus,



                                         -4-
like the First Circuit in Gondek, we urge the Sentencing Commission to clarify its
intention in note 6.

      The judgment of the district court is reversed, and the case is remanded for
resentencing.

LAY, Circuit Judge, dissenting.

       The analysis made by the district court in this case is by far the most fair and
equitable approach to this problem. The fundamental question is this: does the
district court have the discretion to exercise its judgment as to whether Smith’s
subsequent sentence should be concurrent or consecutive. To order his federal
sentence of 121 months consecutive to the approximately two years remaining on his
state revocation sentence is unnecessarily punitive and makes little sense. Although
the Sentencing Guidelines suggest a preference for the district court to make the
sentence consecutive, by not using the word “shall” there is no question the
Sentencing Commission has left discretionary room for the district court to do that
which is fair and equitable under the circumstances. In the present case, I think the
only opinion that makes any sense is that of the Second Circuit in United States v.
Maria, 186 F.3d 65 (2d Cir. 1999), which acknowledges the problem and yet upholds
the discretionary sentence by the district court in deciding that the sentence should
be served concurrently. See id. at 70-72 (concluding “that where the Sentencing
Commission chose the word ‘should’ instead of ‘shall’ or ‘must,’ the Commission
meant what it said and said what it meant”). Our prior no argument, nonpublished
opinion has no precedential value, and under the circumstances, it is certainly not
binding upon this or any other court.

       I do agree with the majority opinion that this is something the Sentencing
Guideline Commission should rectify, but perhaps the Commission has chosen not
to do so. The Commission has been requested to clarify this provision in other cases,

                                         -5-
but has ignored such a suggestion. This strongly indicates to me that the Commission
has decided to stay with the word “should,” leaving discretionary room for the district
court. After all, the district court understands the factual circumstances much better
than this court or the Sentencing Guideline Commission.

      This is not simply a semantical debate. It affects a long term sentence by the
defendant. Such sentence is hardly based upon any penological goals or ideals.
Under the circumstances, the district court should be affirmed.

      A true copy.

             Attest:

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




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