U.S. v. Cole, 04-2058.

• Decision Date: 27 January 2005
• Docket Number: No. 04-2058.,04-2058.
• Citation: 395 F.3d 929
• Parties: UNITED STATES of America, Appellee, v. Christopher Martin COLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

395 F.3d 929

UNITED STATES of America, Appellee, v. Christopher Martin COLE, Appellant.

No. 04-2058.

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2005.

Filed: January 27, 2005.

Rehearing Denied February 25, 2005.

Omar F. Greene, argued, Little Rock, AR, for appellant.

Joseph J. Volpe, Asst. U.S. Atty., argued, Little Rock, AR, for appellee.

Before WOLLMAN, FAGG, and BYE, Circuit Judges.

BYE, Circuit Judge.

After this court reversed an upward departure Christopher Martin Cole received on a sentence of twenty-four months imprisonment for transmitting a threat in interstate commerce, United States v. Cole, 357 F.3d 780, 785 (8th Cir.2004), the district court¹ resentenced Cole to twelve months imprisonment. Cole now appeals a second time asserting his federal sentence should have run concurrent to a related state sentence. We disagree and affirm the district court.

I

On October 16, 2001, Cole called a 911 operator in Paragould, Arkansas, and made a false threat about anthrax being in a school building. Around the same time, Cole made a number of other false threats by telephone, including a bomb threat to a school. The anthrax threat resulted in this federal charge, and the other threats led to state charges.

Cole was arrested on a federal warrant related to the anthrax threat on November 2, 2001. He remained in federal custody for several months while a mental evaluation was performed. On March 8, 2002, Cole was released from federal custody on a recognizance bond. On September 10, 2002, the state of Arkansas arrested Cole on a warrant arising from the state charges.

Cole pleaded guilty to the federal charge and was originally sentenced on December 19, 2002. At that time, the state charges against Cole had not been resolved, but Cole was in state pretrial custody. While the first appeal in this case was pending, Cole pleaded guilty to the state charges, received and then completed his state sentence. On March 19, 2004, Cole returned to federal custody. A detention hearing was held soon after to determine whether Cole should be detained while awaiting the resentencing we ordered in Cole's first appeal. On March 22, 2004, Cole was again released on his own recognizance.

The district court held a resentencing hearing on April 19, 2004. Cole requested a sentence of "time served," that is, to be given credit towards the federal sentence for the time he had spent in state custody. The government opposed Cole's request and asked the district court to impose a federal sentence that would run consecutive to any state time Cole had served. The district court denied both requests, and simply sentenced Cole to twelve months imprisonment.

Cole filed a timely appeal raising two points. First, he contends his federal sentence began running at the time he was originally sentenced on December 19, 2002, and thus ran concurrent to the state sentence he later received. In the alternative, Cole argues his twelve-month sentence does not comport with United States Sentencing Guideline (U.S.S.G.) § 5G1.3(c)'s goal of achieving a "reasonable incremental punishment" for the offense, given the amount of time he already served in state custody on the charges of making a false bomb threat.

II

We review de novo the question whether Cole's federal sentence began running at the time he was originally sentenced, but while in state custody. See United States v. McCrary, 220 F.3d 868, 869 (8th Cir.2000) (reviewing de novo a question related to state versus federal custody of a criminal defendant). We also review de novo the district court's application of U.S.S.G. § 5G1.3. United States v. Dixon, 360 F.3d 845, 846 (8th Cir.2004).

Cole first contends his federal sentence began running on December 19, 2002. We disagree. Cole was not in federal custody at that time — he was in state custody. Cole was only transferred temporarily to the federal authorities for the purpose of being sentenced. If, while under the primary jurisdiction of one sovereign, a defendant is transferred to the other jurisdiction to face a charge, primary jurisdiction is not lost but rather the defendant is considered to be "on loan" to the other sovereign. See, e.g., United States v. Smith, 812 F.Supp. 368, 371 (E.D.N.Y.1993). This comports with the principles that ordinarily apply when two separate sovereigns exercise jurisdiction over the same person during the same time period.

As between the state and federal sovereigns, primary jurisdiction over a person is generally determined by which one first obtains custody of, or arrests, the person. Thomas v. Brewer, 923 F.2d 1361, 1365 (9th Cir.1991); see also United States v. Vann, 207 F.Supp. 108, 111 (E.D.N.Y.1962) ("The controlling factor in determining the power to proceed as between two contesting sovereigns is the actual physical custody of the accused."). Primary jurisdiction continues until the first sovereign relinquishes its priority in some way. Generally, a sovereign can only relinquish primary jurisdiction in one of four ways: 1) release on bail, 2) dismissal of charges, 3) parole, or 4) expiration of sentence. Smith, 812 F.Supp. at 370 n. 2.

In this case, the United States obtained primary jurisdiction over Cole on November 2, 2001, when he was arrested on a federal warrant related to the anthrax threat. He remained in federal custody until March 8, 2002, while a mental evaluation was performed. On March 8, 2002, he was released from federal custody on a recognizance bond. Thus, at that time, the federal government relinquished its primary jurisdiction over Cole.

On September 10, 2002, the state of Arkansas obtained jurisdiction over Cole by arresting him on charges related to the telephonic bomb...