United States v. Alan Gurski

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1453
___________
United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Alan E. Gurski, * [UNPUBLISHED]
*
Defendant-Appellant. *
___________
Submitted: December 8, 2008
Filed: March 26, 2009
___________
Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
___________
PER CURIAM.
In November 2000, Alan Gurski drugged and sodomized a sixteen-year-old
boy. State authorities charged Gurski with statutory sodomy. In October 2001, while
the state charges were still pending, federal authorities took Gurski into custody and
charged him with distributing gamma-hydroxybutyrate (“GHB”) to a person under
twenty-one years of age. Gurski pleaded guilty to that charge, and in May 2002, the
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
district court2 sentenced him to fifty-one months’ incarceration. Federal authorities
then returned Gurski to state custody, where he was convicted of the statutory sodomy
charge. In November 2002, the state sentenced Gurski to seven years’ imprisonment,
and shortly thereafter, he was transferred to the Missouri Department of Corrections
to begin his state sentence. In January 2008, after being returned to federal custody
to begin his federal sentence, Gurski entered a Motion for Sentencing Order Nunc Pro
Tunc, requesting that the district court modify the federal sentence to run concurrently
with the state sentence. The district court denied Gurski’s motion, and Gurski now
appeals.
We have held that “a district court has broad discretion” to determine whether
a sentence will run consecutively or concurrently with a yet-to-be-imposed state
sentence. United States v. Mayotte, 249 F.3d 797, 799 (8th Cir. 2001). The district
court’s power to revise such a sentence after it is imposed, however, is much more
limited. Fegans v. United States, 506 F.3d 1101, 1104 (8th Cir. 2007). Even
assuming the Bureau of Prisons has nunc pro tunc authority “to determine
concurrency” by designating the state prison as the place of federal confinement under
18 U.S.C. § 3585(a), id. (quotation omitted), the district court has no such authority
in the first instance. Romandine v. Unites States, 206 F.3d 731, 738–39 (7th Cir.
2000) (“[Defendant] must serve his federal sentence after his state sentence ends,
unless he can persuade the Attorney General to start the federal clock while he is still
in state custody.”); see 18 U.S.C. § 3582(c) (court’s limited authority to modify a
sentence); Fed. R. Crim. P. 35 (scope of court’s authority to correct or reduce a
sentence).
2
The Honorable Stephen N. Limbaugh, Senior, United States District Judge for
the Eastern District of Missouri, now retired.
-2-
To the extent Gurski requests credit for the prior custody to be applied both to
his state sentence and to his consecutive federal sentence, such double credit is not
permitted under 18 U.S.C. § 3585(b)(2).
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-3-