United States v. Regian

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21125
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN WILLIAM REGIAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-110-1
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John William Regian appeals his sentence for possessing a
firearm while under indictment, in violation of 18 U.S.C.
§§ 922(n) and 924(a)(1). Regian contends that the district court
erred in ruling that it lacked discretion to order his federal
sentences to run concurrently with his previously-imposed state
sentence for probation violation. He argues that pursuant to
U.S.S.G. § 5G1.3(c), the district court had discretion to order
that the sentences run concurrently.

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No. 00-21125
-2-
Regian concedes that his argument is foreclosed by United
States v. Alexander, 100 F.3d 24 (5th Cir. 1996), but seeks to
preserve the issue for Supreme Court review or possible en banc
proceedings in this court. In Alexander, we held that U.S.S.G.
§ 5G1.3(c), comment. (n.6), sets forth a mandatory requirement
for consecutive sentences, notwithstanding its use of the term
"should." See Alexander, 100 F.3d at 26-27. Regian was on
deferred adjudication probation for a state offense when the
instant offense occurred, and his probation was revoked. A
consecutive sentence was therefore mandatory. See id. at 27.
AFFIRMED.

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