1 F.3d 654 (7th Cir. 1993), 92-3147, United States v. Evans

Docket Nº:92-3147.
Citation:1 F.3d 654
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ricky EVANS, Defendant-Appellant.
Case Date:August 11, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 654

1 F.3d 654 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ricky EVANS, Defendant-Appellant.

No. 92-3147.

United States Court of Appeals, Seventh Circuit

August 11, 1993

Submitted July 7, 1993. *

K. Tate Chambers, Asst. U.S. Atty., Office of the U.S. Atty., Peoria, IL, for plaintiff-appellee.

Daniel G. O'Day, Cusack & Fleming, Peoria, IL, for defendant-appellant.

Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.

PER CURIAM.

In a state prosecution Ricky Evans was found guilty of participating in a criminal drug conspiracy, a Class X felony under Illinois law. He was sentenced to serve ten years in an Illinois prison. A year later Evans was indicted on federal drug conspiracy charges relating to the same conduct, to which he pleaded guilty. Under the Sentencing Guidelines Evans was eligible for a term of 121-151 months. Since he had already served twenty-three months in state prison for conduct taken into account when arriving at this range, the court subtracted twenty-three months from the bottom of the range and sentenced Evans to serve ninety-eight months, concurrent with his state sentence. See U.S.S.G. Sec. 5G1.3(b). On appeal, Evans contends that he should have received good time credit against his federal sentence for the time he had already spent in state custody.

Guideline section 5G1.3(b) provides that when a defendant is serving "an undischarged term of imprisonment [that] resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment." The sentencing court applied section 5G1.3(b) correctly, following the example set forth in application note 2 to that section. That application note does not refer to good time at all, and there is no need for it to do so. The federal good time statute, 18 U.S.C. Sec. 3624, makes it clear that it is the Bureau of Prisons, not the court, that determines whether a federal prisoner...

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