UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4777
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GREGORY BRUCE ADKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:11-cr-00076-1)
Submitted: February 15, 2013 Decided: February 26, 2013
Before WILKINSON, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin, II, United States Attorney, Monica D. Coleman,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Bruce Adkins appeals from his 108-month
sentence imposed pursuant to his guilty plea to possession of an
unregistered machine gun. On appeal, he asserts that the
district court erred when it applied the kidnapping
cross-reference in calculating Adkins’ Guidelines range.
According to Adkins, his sentence should have been
cross-referenced to the crime of wanton endangerment, as his
actions did not constitute kidnapping under West Virginia law
and were instead merely incidental to the crime of wanton
endangerment. 1 We affirm.
We review a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). The first step in this
review requires the court to ensure that the district court
committed no significant procedural error. United States v.
Evans, 526 F.3d 155, 161 (4th Cir. 2008). Procedural errors
include “failing to calculate (or improperly calculating) the
Guidelines range.” Gall, 552 U.S. at 51. “[I]f a party repeats
on appeal a claim of procedural sentencing error . . . which it
has made before the district court, [this court] review[s] for
abuse of discretion” and will reverse unless we can conclude
1
Wanton endangerment is any “act with a firearm which
creates a substantial risk of death or serious bodily injury to
another.” W. Va. Code § 61-7-12 (2012).
2
“that the error was harmless.” United States v. Lynn, 592 F.3d
572, 576 (4th Cir. 2010).
The West Virginia Supreme Court has noted that
reasonable limitations must be placed upon the broad scope of
the kidnapping statute, W. Va. Code § 61-2-14a (2012), 2 because
otherwise the crime of kidnapping could “literally overrun
several other crimes,” like robbery and rape, where detention of
the victim is a common occurrence. Thus, the court adopted a
four element test to determine whether or not a kidnapping is
incidental to another crime: “(1) the length of time the victim
was held or moved; (2) the distance the victim was forced to
move; (3) the location and environment of the place the victim
was detained; and (4) the exposure of the victim to an increased
risk of harm.” West Virginia v. Kitchen, 536 S.E.2d 488, 493
(W. Va. 2000). In Kitchen, the victim had been restrained for
more than a half an hour, tried to escape, was in an unfamiliar
area, and was exposed to considerable harm while being driven
around in the middle of the night by a drunken man. The court
found that, under these facts, the forcible restraint and
transportation of the victim was not incidental to the robbery
of the victim and, instead, constituted kidnapping. Id.
2
West Virginia’s kidnapping statute criminalizes unlawful
restraint. W. Va. Code § 61-2-14a.
3
Applying the Kitchen factors to this case, we conclude
that Adkins’ kidnapping was not incidental to wanton
endangerment. Adkins held his wife Sabrina for a period of time
sufficient for him to assemble a gun and drive thirteen miles.
Sabrina was forcibly restrained both in her home and in the car
by Adkins’ use of a loaded machine gun and his repeated verbal
threats to kill her and/or force her to commit sexual favors.
In addition, Sabrina was driven around by Adkins, who had been
drinking and threatened her life numerous times, and she
eventually fled from the vehicle screaming that he was going to
kill her. See also West Virginia v. Miller, 336 S.E.2d 910, 916
(W. Va. 1985) (holding that kidnapping was not incidental to
sexual assault where victim was in defendant’s custody for over
an hour, had been taken a consequential distance from home, and
had been exposed to an increased risk of harm).
Although carrying a loaded machine gun while driving
under the influence likely constituted wanton endangerment,
Adkins’ actions went beyond that crime. Therefore, the
kidnapping was not an incidental crime. Accordingly, we find
that the district court correctly applied the kidnapping cross-
reference, and there was consequently no procedural error in
calculating Adkins’ Guidelines range. As such, we affirm
Adkins’ sentence. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
4
materials before this court and argument would not aid the
decisional process.
AFFIRMED
5