UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER MICHAEL JENKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:06-cr-00066-JBF)
Submitted: August 31, 2007 Decided: November 7, 2007
Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Walter B. Dalton,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Norfolk, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Jessica M. Norris, Special
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Michael Jenkins appeals his 120-month
sentence for being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). On appeal, Jenkins
argues that under U.S. Sentencing Guidelines Manual (“USSG”)
§ 5G1.3(b)(1) (2006), the district court should have considered
whether time served on a Virginia sentence for a related offense
would be credited by the Bureau of Prisons (“BOP”), and if not,
should have adjusted his sentence accordingly. The Government
agrees that Jenkins’ sentence should have been adjusted pursuant to
USSG § 5G1.3(b)(1). We vacate Jenkins’ sentence and remand for the
district court to consider USSG § 5G1.3(b).
“[I]f a term of imprisonment resulted from another
offense that is relevant conduct to the instant offense of
conviction” and “that was the basis for an increase in the offense
level for the instant offense,” the sentence for the instant
offense shall be imposed as follows: (1) “the court shall adjust
the sentence for any period of imprisonment already served on the
undischarged term of imprisonment if the court determines that such
period of imprisonment will not be credited to the federal sentence
by the Bureau of Prisons;” and (2) “the sentence for the instant
offense shall be imposed to run concurrently to the remainder of
the undischarged term of imprisonment.” USSG § 5G1.3(b)(1)-(2).
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Jenkins’ Virginia abduction conviction was “relevant
conduct” for purposes of his conviction under § 922(g)(1) and “was
the basis for an increase in the offense level” because Jenkins’
offense level was adjusted upward by four levels based on his
commission of the firearm offense “in connection with another
felony offense.” See USSG § 2K2.1(b)(6) (defining “Specific
Offense Characteristics” for offense of Unlawful Possession of a
Firearm); see also USSG § 1B1.3(a)(1)(A) (specific offense
characteristics determined on the basis of “all acts and omissions”
committed by the defendant). Therefore, Jenkins was eligible for
concurrent sentences for his state and federal convictions (which
the district court considered and ordered) and also for an
adjustment of his federal sentence for the time he served in state
custody pursuant to the state abduction conviction (which the
district court declined to consider). Because federal law does not
credit to a federal sentence time that will be credited to a state
sentence, it is clear that the BOP would not credit Jenkins’
federal sentence for time served on the state charge. See 18
U.S.C. § 3585(b); Va. Code Ann. § 53.1-187. Thus, while the
district court indicated that it had no role in the matter, the
court should have considered and applied USSG § 5G1.3(b)(1) to
adjust Jenkins’ sentence.
Accordingly, we vacate Jenkins’ sentence and remand to
the district court with directions to follow the dictates of USSG
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§ 5G1.3(b)(1) in resentencing Jenkins. 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.
VACATED AND REMANDED
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