United States v. Adams

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 01-4726 DONALD ADAMS, Defendant-Appellant.  Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Cameron McGowan Currie, District Judge. (CR-01-205) Submitted: April 23, 2002 Decided: May 1, 2002 Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. COUNSEL Langdon D. Long, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. J. Strom Thurmond, Jr., United States Attorney, Marshall Prince, Assistant United States Attorney, Ann Agnew Cupp, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. 2 UNITED STATES v. ADAMS Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Donald Adams pled guilty to being a felon in possession of a fire- arm, 18 U.S.C.A. § 922(g)(1) (West 2000), and was sentenced to a term of forty-six months imprisonment. Adams appeals his sentence, alleging that the district court erred in refusing to make his sentence concurrent with a state sentence he was serving pursuant to U.S. Sen- tencing Guidelines Manual § 5G1.3(b) (2000). We affirm. Under § 5G1.3(b), when a defendant is serving an undischarged term of imprisonment for an offense that has "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 with the undischarged term of imprisonment." Under § 5G1.3(c), if neither subsection (a) (for offenses committed while the defendant is serving an undischarged term of imprisonment) nor sub- section (b) applies, the district court may impose a sentence that is concurrent, partly concurrent, or consecutive to the undischarged term of imprisonment "to achieve a reasonable punishment for the instant offense." While executing a search warrant at Adams’ home in November 2000, drug enforcement agents discovered a shotgun and a rifle which Adams was prohibited from possessing because of a 1990 drug con- viction. After the search, Adams was convicted of multiple drug offenses in state court and sentenced to five years imprisonment. He subsequently pled guilty to the instant federal firearm offense. Adams’ base offense level was set at 24 because of his two prior fel- ony drug convictions, see USSG § 2K2.1(a)(2), and the sentence for each prior conviction received criminal history points. Without mak- ing a specific finding, the district court implicitly determined that § 5G1.3(b) did not apply and imposed a sentence partially consecu- tive to the undischarged term of imprisonment Adams was then serv- UNITED STATES v. ADAMS 3 ing. We review the district court’s application of the relevant guideline for abuse of discretion. United States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995). Adams argues, as he did in the district court, that his state drug offense was "fully taken into account" in the determination of his offense level for the instant offense because he received an enhanced base offense level as a result of the state conviction and also received three criminal history points for the sentence. However, the state drug offense was not treated as relevant conduct in determining the offense level for the instant offense. Only the fact of the prior conviction was considered. The Second Circuit has held that prior offenses are not "fully taken into account," for the purposes of § 5G1.3(b), unless the defendant is sentenced "as if those felonies were being prosecuted in the same pro- ceeding as the instant offense." United States v. Garcia-Hernandez, 237 F.3d 105, 110 (2d Cir. 2000) (enhancement for illegal re-entry following deportation for aggravated felony). Garcia-Hernandez notes that other circuit courts have similarly found § 5G1.3(b) inap- plicable when a prior offense affects the defendant’s offense level, but not in the manner it would have if it were an offense of conviction in the instant offense. Id. (citing United States v. Contreras, 210 F.3d 1151, 1153 (10th Cir. 2000) (career offender provisions); United States v. Gondek, 65 F.3d 1, 4 (1st Cir. 1995) (possession of firearms after prior convictions)). This interpretation comports with the exam- ple cited in Application Note 2 concerning subsection (b) cases, which describes a defendant being sentenced for a federal drug offense who is held accountable for an additional drug amount for which he has been convicted and sentenced in state court. Adams relies on United States v. Lee, No. 93-5931, 1994 WL 717476 (4th Cir. Dec. 29, 1994) (unpublished) (vacating and remand- ing for resentencing under § 5G1.3(b) where defendant serving state sentence for voluntary manslaughter received four-level enhancement pursuant to § 2K2.1(b)(5) for use of the firearm in another felony). Unpublished cases are not binding precedent in this circuit. See 4th Cir. R. 36(c). In any event, Lee is distinguishable because the defen- dant in that case received an enhancement to his base offense level 4 UNITED STATES v. ADAMS for having used the gun in another felony, not simply for the fact of the prior offense. We therefore affirm the sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED