United States Court of Appeals
For the First Circuit
No. 09-1693
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT DUNBAR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Howard, Circuit Judge.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Defender Office, for appellant.
Thomas E. Kanwit, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
October 26, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Per Curiam. Robert Dunbar robbed a federally-insured
bank in East Bridgewater, Massachusetts, and fled in a stolen car.
During the ensuing police pursuit, Dunbar crashed head-on into a
car driven by a teenage girl, who sustained serious injuries. State
and federal authorities prosecuted Dunbar separately. This appeal
raises the question whether the federal sentencing guidelines
require that the time Dunbar had already served on his state
sentences be credited toward his federal career-offender sentence.
Dunbar was sentenced in state court in December 2008,
where he was convicted of resisting arrest, receiving a stolen
vehicle, operating a motor vehicle under intoxication causing
serious bodily injury, reckless operation of a motor vehicle,
refusing to stop for a police officer, and operating a vehicle with
a suspended license. The state court sentenced Dunbar to two
consecutive terms totaling five years in prison, of which Dunbar
had served one year prior to his federal sentencing.
In federal court, Dunbar pled guilty to a one-count
indictment charging him with bank robbery under 18 U.S.C. § 2113(a)
(2006). At Dunbar's sentencing in April 2009, the district court
adopted the sentencing guidelines calculations set forth in
Dunbar's presentence report ("PSR"); in pertinent part, the court
first calculated Dunbar's total offense level under Chapters Two
and Three of the Guidelines to be 23, which among other adjustments
included a four-level increase for the serious bodily injuries
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suffered by the teenage crash victim. U.S.S.G. § 2B3.1(b)(3)(B)
(2008).
The court next found that Dunbar was a career offender as
defined in U.S.S.G. § 4B1.1, and applied (as directed by the
guideline) the higher career-offender offense level of 29 (in lieu
of 23), see U.S.S.G. § 4B1.1(b), resulting in a guidelines range of
151 to 188 months' imprisonment. Dunbar sought credit under
U.S.S.G. § 5G1.3(b) for time he had already served on his state
convictions, but the court found that section 5G1.3(b) did not
apply because Dunbar was a career offender.
After noting the sentencing factors set out in 18 U.S.C.
§ 3553(a) and emphasizing Dunbar's extensive criminal history and
the harm to the crash victim, the court imposed a within-guidelines
sentence of 158 months' imprisonment. The court ordered that term
to run concurrently with Dunbar's state sentences but refused to
reduce the federal sentence to account for the time Dunbar had
already served on his state sentences. Dunbar has now appealed to
contest this refusal.
Under the governing provision, a federal sentence imposed
on one subject to an undischarged prior sentence must be
consecutive in some cases, U.S.S.G. § 5G1.3(a); in others, it must
be concurrent, with credit given for time already served on the
prior sentence, U.S.S.G. § 5G1.3(b); and in cases falling in
neither category, the matter is confided to the judgment of the
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sentencing judge, U.S.S.G. § 5G1.3(c). Here, the case falls
outside the first category; the main question--an issue of law
reviewed de novo--is whether it is within the second, which reads
as follows:
If subsection (a) does not apply, and a term
of imprisonment resulted from another offense
that is relevant conduct to the instant
offense of conviction under the provisions of
subsections (a)(1), (a)(2), or (a)(3) of
§ 1B1.3 (Relevant Conduct) and that was the
basis for an increase in the offense level for
the instant offense under Chapter Two (Offense
Conduct) or Chapter Three (Adjustments), 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.1
U.S.S.G. § 5G1.3(b)(emphases added).
Here, of course, the district judge did specify that the
federal sentence would run concurrently with the remaining time on
the state sentence; but, having concluded that subsection (b) did
not apply, he did this as a matter of discretion. If subsection
1
The requirement in section 5G1.3(b)(1) that the Bureau of
Prisons will not itself credit the time served on the prior
sentence is met here because the BOP is statutorily forbidden from
giving Dunbar credit on the state sentence when the state has
already given him credit for that same sentence. See 18 U.S.C.
§ 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir.
2000).
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(b) did apply, then whatever federal sentence the court ultimately
adopted, the district judge would have had to give Dunbar credit
for the one year already served.
The original offense level calculation of 23 took account
of some of the conduct that underlay the state sentence. In
particular, the conduct underlying the state conviction for driving
while intoxicated and causing serious bodily injury prompted the
four-level increase for the serious bodily harm; and, as conduct
undertaken in seeking to avoid capture for the federal offense, it
meets the definition of relevant conduct and satisfies the first
underlined condition quoted above. See U.S.S.G. § 1B1.3(a)(1).
However, section 5G1.3(b)(1) is triggered only when, in
the words of the second underlined condition, the relevant conduct
also "was the basis for an increase in the offense level for the
instant offense under Chapter Two (Offense Conduct) or Chapter
Three (Adjustments)." Here, in one sense it was, since the initial
level-23 calculation reflected an increase; but in another sense it
was not, because the level-23 calculation itself was superseded by
an obligatory further adjustment under Chapter 4 because Dunbar was
found to be a career offender regardless of the state convictions
stemming from the robbery.
The commentary and history of section 5G1.3(b), along
with the pertinent judicial precedent, confirm that its purpose was
to avoid or at least mitigate the risk of double punishment. E.g.,
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Witte v. United States, 515 U.S. 389, 404-05 (1995). No such
double punishment is threatened where, as here, the relevant
conduct did not affect the governing final guideline calculation,
which itself furnished the starting point for the federal sentence.
Dunbar suggests that double punishment did occur by
positing that, if he had not been given the state sentence and the
car crash had been subsumed into a single federal sentence, he
would still have received only the 158-month sentence. On the
contrary, by deliberately choosing to run the federal sentence
concurrent with the last four years of the state sentence, but not
credit the year already served in state prison, the district judge
effectively indicated just what he thought was the appropriate time
for the combined federal and state crimes.
Dunbar says that the level-23 calculation was a
"necessary step" in the sentence; but this is so only in a
chronological sense. Yes, the district court had to read Chapters
Two and Three to see whether the range calculated under those
provisions was higher than the minimum applicable to Dunbar as a
career offender. But, as the range proved lower, it dropped
entirely out of the sentencing calculation and had no causative
effect on the federal range or sentence.
In other like situations, we have flatly rejected this
"necessary step" argument in concluding, as have other courts, that
one sentenced as a career offender is not entitled to apply for
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resentencing based on a retroactive adjustment in the drug
guidelines.2 There, as here, the drug-guideline calculations had
been made but, as here, were superseded by career-offender
calculations and played no role in the defendant's ultimate
sentence.
Also in point is our decision in United States v.
Carrasco-de-Jesús, 589 F.3d 22 (1st Cir. 2009). There, the
defendant argued that section 5G1.3(b) applied to her because a
$101.60 check that was the subject of a state conviction had, she
contended, factored into a six-level increase of her federal
guidelines offense level under a provision calling for such an
increase when the loss attributable to the offense exceeds $30,000.
Id. at 27.
However, the record indicated the aggregate loss exceeded
$50,000, so the $101.60 check made no difference in whether or not
the six-level increase applied, even if the check had in fact been
counted in the total loss amount. Id. at 28. We noted that "the
Sentencing Commission itself appears to regard the 'basis' language
as causal" and, "fail[ing] to see how an item of loss that has no
effect on the offense level can serve as the 'foundation' of that
2
See United States v. Caraballo, 552 F.3d 6, 9-10 (1st Cir.
2008) (career-offender sentence not "based on" crack cocaine
guideline), cert. denied, 129 S. Ct. 1929 (2009); accord United
States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009) (collecting
cases across circuits), cert. denied, 130 S. Ct. 2071 (2010).
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level," we affirmed the district court's refusal to apply
section 5G1.3(b). Id. at 28-29.
Dunbar suggests that other courts have reached the
opposite conclusion. But his citations are to cases interpreting
the previous and substantively different version of section 5G1.3,
e.g., United States v. Lynch, 378 F.3d 445, 446 (5th Cir. 2004);
United States v. Rivers, 329 F.3d 119, 121-22 & n.2 (2d Cir. 2003),
or simply noting a district court's invocation of section 5G1.3(b)
without considering the interpretive issue now before us, e.g.,
United States v. Rivera, 189 F. App'x 933, 936 (11th Cir. 2006)
(unpublished); United States v. Fernandez, 436 F. Supp. 2d 983, 991
(E.D. Wis. 2006).
Affirmed.
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