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United States v. Linda L. Lange, 98-1033 (1998)

Court: Court of Appeals for the Eighth Circuit Number: 98-1033 Visitors: 19
Filed: Jun. 03, 1998
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 98-1033SD _ United States of America, * * Appellee, * Appeal from the United States v. * District Court for the * District of South Dakota Linda L. Lange, * * Appellant. * _ Submitted: May 14, 1998 Filed: June 3, 1998 _ Before McMILLIAN, NOONAN,1 and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ NOONAN, Circuit Judge. Linda L. Lange, convicted of bank fraud in violation of 18 U.S.C. § 1344, appeals her sentence of 2¾ years, to be served con
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                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                  No. 98-1033SD
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota
Linda L. Lange,                         *
                                        *
             Appellant.                 *
                                   ___________

                              Submitted: May 14, 1998
                                  Filed: June 3, 1998
                                   ___________

Before McMILLIAN, NOONAN,1 and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

NOONAN, Circuit Judge.


       Linda L. Lange, convicted of bank fraud in violation of 18 U.S.C. § 1344,
appeals her sentence of 2¾ years, to be served consecutively to a sentence she is
serving in Nebraska for state bank fraud. Lange seeks to have her federal sentence run
concurrently.




      1
       The Honorable John T. Noonan, Jr., United States Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
       A defendant who is the subject of an undischarged prison term must be
sentenced under U.S.S.G. § 5G1.3. United States v. Marsanico, 
61 F.3d 666
, 668 (8th
Cir. 1995). That much is clear. The question is whether § 5G1.3(b) or (c) applies.
       The two provisions read as follows:
       (b) If subsection (a) does not apply, and the undischarged term of
       imprisonment resulted from offense(s) that have been fully taken into
       account in the determination of the offense level for the instant offense,
       the sentence for the instant offense shall be imposed to run concurrently
       to the undischarged term of imprisonment.

         (c) (Policy Statement) In any other case, the sentence for the instant
         offense may be imposed to run concurrently, partially concurrently, or
         consecutively to the prior undischarged term of imprisonment to achieve
         a reasonable punishment for the instant offense.



U.S.S.G. § 5G1.3.

         Lange argues that the Nebraska conviction was "fully taken into account" in

determining her offense level. It was taken into account in the Presentence Report's

calculation of her criminal history points. But criminal history and offense level are

treated separately by the Sentencing Table of the U.S.S.G. The events underlying the

Nebraska conviction were not taken into account as "relevant conduct" under U.S.S.G.

§ 1B1.3, and so were not taken into account in determining her offense level. See

United States v. Gondek, 
65 F.3d 1
, 4 (1st Cir. 1995). Reviewing the application of

§ 5G1.3 de novo, United States v. Lyons, 
47 F.3d 309
, 311 (8th Cir. 1995), we find no

error.



                                           -2-
AFFIRMED.




            -3-
A true copy.

  ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -4-

Source:  CourtListener

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