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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11481
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20418-UU-5
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARYL PUGH,
a.k.a. Asinia Robbins,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 21, 2018)
Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Daryl Pugh appeals his 61-month sentence, imposed after he pled guilty to
conspiracy to possess 15 or more unauthorized access devices in violation of 18
U.S.C. § 1029(a)(3), (b)(2), and aggravated identity theft in violation of 18 U.S.C.
§ 1028A. Mr. Pugh contends that the district court incorrectly applied the
Sentencing Guidelines by failing to account for time served in state custody under
U.S.S.G. § 5G1.3(b), despite sustaining his objection on that ground. After review,
we affirm.
Mr. Pugh and his co-conspirators broke into parked cars to steal purses,
wallets, and other belongings, including credit cards and identifications. As a
result of this conduct, Mr. Pugh was arrested and charged by local law
enforcement. Mr. Pugh pled guilty to state charges and received an 18-month
sentence, which he successfully completed.
Upon release, Mr. Pugh was arrested again, this time by federal authorities,
and charged with conspiracy to possess 15 or more unauthorized access devices
(Count 1) and aggravated identity theft (Count 9). Mr. Pugh pled guilty to these
charges. At sentencing, the district court calculated a guideline range of 30 to 37
months’ imprisonment for Count 1, which it noted would yield a total sentence of
61 months at the high end with the statutory consecutive 24-month sentence for
count 9. D.E. 222 at 4.
2
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Mr. Pugh argued that he was entitled to an 18-month reduction under
U.S.S.G. § 5G1.3(b) because the conduct leading to the state convictions was
identical to the federal crimes. The district court was “not overwhelmed by this
objection.”
Id. at 3. The district court stated that, even if the objection were
technically correct, that it would vary upward to what the guideline sentence was
without the credit because of Mr. Pugh’s extensive criminal history:
So I’m going to find that technically [Mr. Pugh’s] objection is correct
and that under the guidelines the sentence would have to be run
concurrently to the state court sentence. But I’m going to vary
upward to the top of the guidelines and not impose the sentence
concurrently because of Mr. Pugh’s criminal history.
Id. at 8. Ultimately, the district court sentenced Mr. Pugh to 61 months’
imprisonment.
Id. at 11–13.
On appeal, Mr. Pugh argues that the district court failed to account for the
time he served in state custody under § 5G1.3(b), even though it sustained his
objection on that ground. The government responds that the district court did grant
Mr. Pugh credit for time served in state custody, but then varied to the top end of
the advisory guideline range, as it was permitted to do.1
We review the district court’s application of § 5G1.3 de novo. United States
v. Bidwell,
393 F.3d 1206, 1208–09 (11th Cir. 2004). If we decide that the district
1
Alternatively, the government argues for the first time on appeal that § 5G1.3(b) was
inapplicable because Mr. Pugh did not have an undischarged term. In the government’s view,
Mr. Pugh completed his state sentence before he was sentenced for the federal offense and thus
was no longer subject to an ongoing or forthcoming term of state imprisonment. Given our
resolution of the appeal, we need not consider this argument.
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court misapplied the Sentencing Guidelines, a remand is appropriate unless we
conclude, “on the record as a whole, that the error was harmless, i.e., that the error
did not affect the district court’s selection of the sentence imposed.” Williams v.
United States,
503 U.S. 193, 203 (1992). Thus, remand is not appropriate when we
determine that the district court’s error did not impact the district court’s ultimate
sentence. See United States v. Keene,
470 F.3d 1347, 1348–49 (11th Cir. 2006).
Where a term of imprisonment results from another offense that constitutes
relevant conduct, § 5G1.3 of the Sentencing Guidelines provides that the district
court “shall adjust the sentence for any period of imprisonment already served on
the undischarged term of imprisonment if the court determines that such period of
imprisonment will not be credited to the federal sentence by the Bureau of
Prisons[.]” If this provision applies, the district court “should note on the
Judgement in a Criminal Case Order . . . the amount of time by which the sentence
is being adjusted.”
Id. § 5G1.3 cmt. n.2(c). 2
The district court sustained Mr. Pugh’s § 5G1.3 objection, but did not
expressly credit Mr. Pugh for the time served in its oral or written sentence as the
application notes suggest that it should have done. The district court said it was
varying upward to offset the credit for time served, but ultimately sentenced Mr.
2
The Guidelines also provide that the district court has discretion to grant a downward departure
if the defendant has completed serving a term of imprisonment and § 5G1.3 would have granted
the defendant credit for time served had the sentence been undischarged. See U.S.S.G. § 5K2.23.
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Pugh within the advisory guideline range, effectively denying him any credit for
the time spent in state custody. If the district court subtracted 18 months from the
advisory guideline range, that would have left Mr. Pugh facing 12-19 months
(advisory of course) for Count 1. The court, using the top end of the range,
apparently varied upwards by 18 months to reach 37 months.
Even if we accepted the argument that the district court did not credit Mr.
Pugh for time served, the result would be the same. Although the district court was
not clear as to how exactly it was applying the credit after sustaining Mr. Pugh’s
objection, the district court stated that it was going to sentence Mr. Pugh to the top
end of the Guidelines due to his extensive criminal history. The district court
reiterated that even though Mr. Pugh’s objection was technically correct, it would
impose a total sentence of 61 months’ imprisonment. See D.E. 222 at 3–8. The
district court also stated that it would vary upwards from the guideline range to
ensure that Mr. Pugh received a sentence at the top end of the guidelines due to his
extensive criminal history.
Id. Notably, Mr. Pugh has not appealed the substantive
reasonableness of the sentence imposed.
There is no reversible error. The district court had discretion to grant Mr.
Pugh credit for time served. See U.S.S.G. §§ 5G1.3(b), 5K2.23. Likewise, the
district court had discretion to vary upwards and to impose a sentence above the
applicable guideline range based on Mr. Pugh’s criminal history. See United
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States v. Sanchez,
586 F.3d 918, 935–36 (11th Cir. 2013). The district court’s
comments indicate that a remand for resentencing would result only in an
explanation as to how the court arrived at a 61-month sentence. See Keene,
470
F.3d 1347, 1348–49. We find no reversible error, and therefore affirm the district
court’s 61-month sentence for Mr. Pugh.
AFFIRMED.
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