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United States v. Terry

November 29, 2006

UNITED STATES OF AMERICA
v.
NEIL EDWARD TERRY



The opinion of the court was delivered by: James L. Graham United States District Judge

ORDER NUNC PRO TUNC

Defendant Terry was sentenced by this court on March 4, 1993, on Count 1 of the indictment, which charged a conspiracy to commit drug offenses in violation of 21 U.S.C. §846. Defendant was sentenced to a term of incarceration of 240 months. Unbeknownst to the court, defendant was also charged by indictment filed on or about November 1, 1991, in the Common Pleas Court of Pickaway County, Ohio, with state drug charges based on the same conduct which was the subject of the indictment in this case. No information concerning the pending state charges was included in the presentence investigation report in this case. On April 8, 1993, defendant was sentenced in the state case, Pickaway County Case Number 91-cr-239, on five counts of aggravated trafficking in drugs. A copy of the state court judgment is attached hereto. The state court ordered that the sentences of incarceration imposed on the various counts in the state case run concurrently with each other and concurrently with the federal sentence imposed in the instant case. On May 16, 1995, this court entered an order reducing defendant's sentence of incarceration to a sentence of 180 months incarceration. However, at the time of that order, this court was still unaware of the state court sentence.

On September 21, 2006, this court received a letter from the defendant indicating that he had completed serving his state sentence and was now in federal custody. He indicated that the Bureau of Prisons did not give him credit for the time served in state custody.

The court has been informed by the United States Probation Office that if the probation officer in this case had been aware of the pending state charges at the time of sentencing, this would have altered the calculations under the United States Sentencing Guidelines in this case, and that under the Guidelines, the sentence in this case would have run concurrently with the state court sentence. Counsel for the government has indicated to the court that he has no objection to the imposition of a concurrent sentence in this case.

Accordingly, the court hereby orders that the sentence of incarceration of 180 months imposed in this case is to run concurrently with the sentence of incarceration imposed in Case Number 91-cr-239 by the Pickaway County, Ohio, Court of Common Pleas.

20061129

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