899 F. 2d 1226 - United States v. King

MEMORANDUM*

Defendant appeals the district court's application of the Sentencing Guidelines in calculating his sentence for bank robbery. We affirm.

Donald Gary King pled guilty to bank robbery and appeared for sentencing before District Judge James Redden on January 18, 1989. Judge Redden issued a provisional sentence pending a psychiatric evaluation. On January 26, 1989, King also appeared before the Washington County, Oregon, state circuit court for sentencing on a number of state offenses. King was sentenced to five years' imprisonment on the state charges to be served consecutive to his federal sentence.

On May 15, 1989, King appeared again before the district court for final sentencing. Under the Guidelines, Judge Redden assessed three points for the five-year state sentence imposed on January 26, 1989. Sentencing Guidelines, section 4A1.1(a).

King asserts that assessment for the state court sentence was in error because he had never yet actually served time under the state sentence. This argument is meritless.

The Guidelines dictate assessment of points for a "sentence of incarceration," Sec. 4A1.2(b)(1), stating that "[t]he term 'prior sentence' means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." Sec. 4A1.2(a)(1). King's state conviction was neither suspended nor stayed. There is therefore no requirement that the defendant serve time for the state sentence to count as a "sentence of imprisonment." Sec. 4A1.2(b)(2).

AFFIRMED.