United States of America v. Ramon Alberto Genao

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4617
RAMON ALBERTO GENAO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CR-96-62-BO)
Submitted: April 20, 2000
Decided: May 3, 2000
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Terence Lee Taylor, Greenville, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ramon Alberto Genao appeals his sentence imposed after pleading
guilty to conspiracy to distribute and possession with intent to distrib-
ute cocaine base, in violation of 21 U.S.C.A. § 846 (West 1999). On
appeal, Genao argues that U. S. Sentencing Guidelines Manual
§ 5G1.3(b), comment. (n.2) (1998) should have been applied to his
sentence, resulting in credit for time served on a District of Columbia
sentence resulting from a July 19, 1995, arrest because the prior
offense was fully taken into consideration in determining his offense
level. The Government agrees that Genao should have his sentence
adjusted pursuant to USSG § 5G1.3(b), comment. (n.2). We vacate
Genao's sentence and remand to the district court to determine
whether the sentence should be adjusted under USSG§ 5G1.3(b),
comment. (n.2).
Section 5G1.3(b) provides that if "the undischarged term of impris-
onment resulted from offense(s) that have been fully taken into
account in the determination of the offense level for the instant
offense, the sentence for the instant offense shall be imposed to run
concurrently to the undischarged term of imprisonment." Application
Note 2 instructs the court to "adjust the sentence for any period of
imprisonment already served as a result of the conduct taken into
account in the guideline range for the instant offense if the court
determines that the period of imprisonment will not be credited to the
federal sentence by the Bureau of Prisons." USSG§ 5G1.3(b), com-
ment. (n.2).
The district court held that, pursuant to United States v. Wilson,
503 U.S. 329, 332 (1992), it lacked authority under 18 U.S.C.
§ 3585(b) (1994) to order Genao to be given credit for earlier time
served on a related sentence. Although § 3585(b) mandates that
defendants shall be given credit for such time served, the authority to
award such credit is limited to the Bureau of Prisons (BOP). See Wil-
son, 503 U.S. at 332. However, the district court's order ignored
Application Note 2, and failed to make a determination whether the
BOP had already exercised its exclusive powers under§ 3585.
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The district court has the authority under the Guidelines to adjust
the sentence despite § 3585. There is no conflict because Application
Note 2 applies only when the BOP has already exercised its exclusive
powers under § 3585. See, e.g., United States v. Dorsey, 166 F.3d
558, 561-63 (interpreting sentencing court's power to award concur-
rent sentence pursuant to USSG § 5G1.3(b) and Application Note 2
as not conflicting with BOP's authority under § 3585(b) to award
prior custody credit).
Accordingly, we vacate Genao's sentence and remand to the dis-
trict court with directions to follow the dictates of USSG § 5G1.3(b),
comment. (n.2) in resentencing him and to determine whether the
BOP has already exercised its exclusive powers under 18 U.S.C.
§ 3585. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED AND REMANDED
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