U.S. v. McLean, 88-5506
| Decision Date | 30 November 1988 |
| Docket Number | No. 88-5506,88-5506 |
| Citation | 867 F.2d 609 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Calvin McLEAN, Defendant-Appellant. . Submitted: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Charles Lee Nutt, for appellant.
Thomas Francis O'Neil, III (Office of the U.S. Attorney), for appellee.
Before JAMES DICKSON PHILLIPS and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Calvin McLean pleaded guilty to a single count of conspiracy to distribute 100 grams or more heroin, in violation of 21 U.S.C. Sec. 846. This offense occurred while McLean was serving an eight-year federal sentence for a prior conviction of heroin distribution. The district court sentenced McLean to 12 years imprisonment and, accepting the government's recommendation, ordered that the sentence run concurrently with his existing sentence. McLean appeals, contending that the commencement of his sentence should be retroactive to the beginning of his existing sentence in order to effectuate the district court's intentions, as expressed at the sentencing hearing. Because we find no error in the district court's sentence, we affirm.
The 12-year sentence imposed by the district court is well within the statutory limits of the offense at issue. McLean properly does not contend that the district court abused its discretion in imposing this sentence. Consequently, the sentence is not properly the subject of appellate review. See United States v. Barrow, 540 F.2d 204 (4th Cir.1976); United States v. Ingram, 530 F.2d 602 (4th Cir.1976).
In fact, the district court had no power to impose the sentence sought by McLean. A federal sentence cannot commence prior to the date it is pronounced. Consequently, when a federal sentence is ordered to run concurrently with a sentence being served, it can only run concurrently with that part of the prior sentence remaining to be served. Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir.1983); United States v. Flores, 616 F.2d 840, 841 (5th Cir.1980); 18 U.S.C. Sec. 3568. 1
To the extent that there is a question of whether the practical effect of the sentence imposed accurately reflects the intention of the district court, a...
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...Fourth Circuit has held that "[a] federal sentence cannot commence prior to the date it is pronounced." United States v. McLean, 867 F.2d 609, 1989 WL 5457 (4th Cir. January 13, 1989). Finally, BOP Program Statement 5880.28, at page 1-13, states that "[i]n no case can a federal sentence of ......
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