United States of America, Plaintiff-Appellee, v. Robert James Bruning, Defendant-Appellant., 962 F.2d 18 (10th Cir. 1992)

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Before JOHN P. MOORE, TACHA and BRORBY, Circuit Judges.

BRORBY

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Bruning entered a guilty plea to count two of the Indictment charging him with escape from a United States penitentiary in violation of 18 U.S.C. 751(a). The district court sentenced him to eighteen months imprisonment to run consecutively to the sentence then being served.

Mr. Bruning appeals the sentence asserting 18 U.S.C. 3584(b)1 mandates a sentencing court to consider the factors set forth in 18 U.S.C. 3553(a)2 prior to imposing a consecutive sentence. Mr. Bruning asserts the sentencing court failed to do this and asks we remand for resentencing.

United States v. Shewmaker, 936 F.2d 1124 (10th Cir.1991), cert. denied, 112 S.Ct. 884 (1992), is dispositive. In Shewmaker, we specifically discussed the tensions existing in these statutes and concluded the new sentence must run consecutively to the old unless the sentencing court determines that a downward departure under the Guidelines is appropriate. Id. at 1128. Mr. Bruning asks that we reconsider this decision. A panel of this court does not have that power. United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990).

The sentence imposed is AFFIRMED.

* This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

1 "The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider ... the factors set forth in section 3553(a)." 18 U.S.C. 3584(b) (1988)

2 Section 3553(a) sets forth seven factors the court must consider when determining a particular sentence. These factors include, but are not limited to, the facts of the offense, the need for the sentence, the kinds of sentences available, and the Guidelines range. 18 U.S.C. 3553(a) (1988)

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