United States v. Regian

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 2002
• Docket: 00-21125
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21125 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN WILLIAM REGIAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-110-1 -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John William Regian appeals his sentence for possessing a

firearm while under indictment, in violation of 18 U.S.C.

§§ 922(n) and 924(a)(1). Regian contends that the district court

erred in ruling that it lacked discretion to order his federal

sentences to run concurrently with his previously-imposed state

sentence for probation violation. He argues that pursuant to

U.S.S.G. § 5G1.3(c), the district court had discretion to order

that the sentences run concurrently.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-21125 -2-

Regian concedes that his argument is foreclosed by United

States v. Alexander, 100 F.3d 24 (5th Cir. 1996), but seeks to

preserve the issue for Supreme Court review or possible en banc

proceedings in this court. In Alexander, we held that U.S.S.G.

§ 5G1.3(c), comment. (n.6), sets forth a mandatory requirement

for consecutive sentences, notwithstanding its use of the term

"should." See Alexander, 100 F.3d at 26-27. Regian was on

deferred adjudication probation for a state offense when the

instant offense occurred, and his probation was revoked. A

consecutive sentence was therefore mandatory. See id. at 27.

AFFIRMED.