United States v. Terri Payseno

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2646
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Terri A. Payseno, * [UNPUBLISHED]
*
Appellant. *
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Submitted: May 6, 2008
Filed: May 12, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Terri Payseno appeals the sentence the district court1 imposed after revoking her
supervised release. The court sentenced her to 23 months in prison to run
consecutively to a sentence she was serving in Idaho. For reversal, Payseno argues
that her sentence is unreasonable because the court ordered a consecutive sentence and
failed to give her credit for time served in federal custody.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
We conclude that Payseno’s 23-month revocation sentence is reasonable, as it
is within the statutory maximum and resulted from the district court’s consideration
of appropriate factors under 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e)(3) (upon
revoking supervised release, court may require defendant to serve in prison all or part
of supervised release term authorized for offense, maximum prison sentence is 2 years
if offense underlying supervised release was Class C felony); United States v. Nelson,
453 F.3d 1004, 1006 (8th Cir. 2006) (appellate court reviews revocation sentence to
determine whether it is unreasonable in relation to, inter alia, advisory Guidelines
range and other § 3553(a) factors). Further, the district court did not abuse its
discretion in ordering that Payseno’s revocation sentence run consecutively to her
Idaho sentence. See U.S.S.G. § 7B1.3(f) (“any term of imprisonment imposed upon
revocation of . . . supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving”); United States v. Caves, 73
F.3d 823, 824-25 (8th Cir. 1996) (per curiam) (Chapter 7 policy statements are
advisory, rather than binding; court did not abuse discretion by imposing consecutive
sentence for serious violation of supervised-release conditions). Last, the court
properly declined to give Payseno credit for time served in federal custody, because
authority to give such credit is left to the Attorney General. See 18 U.S.C. § 3585(b)
(defendant shall be given credit toward service of term of imprisonment for any time
spent in official detention prior to date sentence commences that has not been credited
against another sentence); United States v. Wilson, 503 U.S. 329, 333-37 (1992)
(Attorney General computes amount of credit after defendant begins sentence; district
court cannot apply § 3585(b) at sentencing).
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
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