Aftеr 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,
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 timе, 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 statе 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 evaluatiоn 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 resolvеd, 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 Cоle’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 “timе 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 imрose 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 achiеving 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. After filing the appeal, Cole raised a third issue by filing a letter under Rule 2S(j) of the Federal Rules of Appellate Procedure. The letter called our attention to
Blakely v. Washington,
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,
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 de
As between the state and federal sovereigns, primary jurisdiction over a person is generally determined by which one first obtains сustody of, or arrests, the person.
Thomas v. Brewer,
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 recognizаnce 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 threat and other hoax 911 calls. Arkansas did not thereafter lose its jurisdiction by “loaning” Cole to federal authorities to be sentenced on December 19, 2002. Aftеr the first sentencing, the federal authorities returned Cole to the state of Arkansas where he continued to be held in pretrial detention on the pending state charges.
“A sentence to a term of [federal] imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.” 18 U.S.C. § 3585(a). Because Cole returned to state custody after receiving his original federal sentence on December 19, 2002, instead of being committed to the custody of the Bureau of Prisons to commence service of the sentence, he did not begin to serve his federal sentenсe at that time. 2
Next, Cole contends the district court misapplied U.S.S.G. § 5G1.3(c) by failing to achieve a “reasonable incremental punishment” for Cole’s total offense conduct. We disagrеe, because § 5G1.3(c) was not available for the district court’s application. Section 5G1.3(c) permits the district court to order concurrent sentences when there is a “prior undischarged term of imprisonment” not covered by subsections (a) or (b). At the time of his original sentence on December 19, 2002, Cole was not subject to a “prior undischarged term of imprisonment” beсause he had not yet been sentenced in state court. At the time of his resentencing on April 19, 2004, Cole was not subject to a “prior undischarged term of imprisonment” be
Finally, we address Cole's Sixth Amendment challenge to his sentence. After Cole filed his 28(j) lettеr referencing Blalcely, the Supreme Court decided United States v. Booker, — U.S. —,
After
Booker
was decided, Colе asked to supplement his briefing to request resen-tencing in light of
Booker.
Because Cole did not raise his Sixth Amendment challenge until appeal, we review his claim for plain error only, which requires him tо “demonstrate by a ‘reasonable probability’ he would have received a more favorable sentence under an advisory guideline regime.”
United States v. Torres,
In his supplemental briefing, Cole conсedes he cannot show plain error under Pirani’s standard, because there is nothing in the record to demonstrate he would fare any better if resentenced under advisory guidelines. We agree.
III
For the reasons stated, we affirm the twelve-month sentence ordered by the district court.
Notes
. The Honorable William R. Wilson, United States District Judge for the Eastern District of Arkansas.
. We note, however, Cole should receive credit against his federal sentence for the time spent in federal custody between November 2, 2001, and March 8, 2002. He should also get credit for the short time spent in federal custody after being released from state custody and prior to being released on his own recognizance on March 22, 2004.
. In the first appeal, it was unclear whether Cole’s state custody was attributable to an actual state conviction or merely pretrial detention. Thus, there was some concern about whether the length of Cole’s custody on all charges exceeded the length of any federal sentence that could be imposed upon resen-tencing should concurrent sentencing be appropriate.
See Cole,