United States v. Hansel E. Cain , 6 F. App'x 542 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-1991
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Hansel E. Cain, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 2, 2001
Filed: May 4, 2001
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
Hansel E. Cain pleaded guilty in October 1999 to possessing an unregistered
firearm, in violation of 26 U.S.C. § 5861(d); approximately one month after his guilty
plea, he pleaded guilty in a Missouri court to possessing drugs, and the state court
sentenced him to 5 years imprisonment. At sentencing on the instant firearm charge,
the district court1 assigned 3 points to the Missouri drug-possession sentence, over
Cain’s objection that it was not a prior sentence because he had pleaded guilty to and
1
The HONORABLE NANETTE K. LAUGHERY, United States District Judge
for the Western District of Missouri.
been sentenced for the state offense after his plea to the federal offense. Also over
Cain’s objection, the district court imposed his 120-month sentence for the instant
offense consecutively to the 5-year state sentence. Cain appeals, asserting error based
on these two rulings. We affirm.
Initially, we note that even if the district court had wrongly assigned points to
Cain’s state sentence, the error would be harmless because his remaining criminal
history points would still earn him the same criminal history category. See United
States v. Tiger, 223 F.3d 811, 812-13 (8th Cir. 2000). In any event, Cain’s Missouri
sentence was properly treated as a prior sentence. It was imposed after Cain possessed
the unregistered firearm (in August 1998) but before he was sentenced for it, and it was
for conduct unrelated to the firearm possession. See U.S.S.G. § 4A1.2, comment.
(n.1). The district court also did not err in imposing Cain’s sentence consecutively to
his Missouri sentence. The court explicitly considered other sentencing options, Cain’s
age, the type of prior sentence he was serving, the effect a concurrent sentence would
have on the state sentence, and the need to protect the public. See U.S.S.G.
§ 5G1.3(c), p.s., & comment. (n.3) (describing relevant statutory factors court should
consider).2
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
2
Although Cain complains that he should serve his federal sentence first, this is
a decision left to the two sovereigns. See 18 U.S.C. § 3621(b); United States v.
McCrary, 220 F.3d 868, 871 (8th Cir. 2000).
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