United States v. Thompson , 7 F. App'x 234 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4811
MICHAEL SCOTT THOMPSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-00-131-2)
Submitted: March 30, 2001
Decided: April 13, 2001
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, Brian J.
Kornbrath, Assistant Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney, John
H. Tinney, Jr., Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
2 UNITED STATES v. THOMPSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Scott Thompson appeals the 37-month sentence he
received after he pled guilty to being a felon in possession of a fire-
arm in violation of 18 U.S.C.A. § 922(g)(1) (West 2000). Thompson
argues that the district court erred in finding that United States Sen-
tencing Commission, Guidelines Manual, § 5G1.3(c) (Nov. 1998)
applied rather than § 5G1.3(b), and in imposing a sentence consecu-
tive to his undischarged probation revocation sentence. We affirm.
Thompson was serving a three-year term of probation for a West
Virginia controlled substance conviction when he violated the terms
of probation by possessing a firearm and excessively using alcohol.
Thompson’s probation was revoked, and he was ordered to serve a
term of one-to-five years imprisonment. Thompson later pled guilty
to the instant federal firearms offense. Thompson received an
enhanced base offense level of 20 under USSG § 2K2.1(a)(4)(A)
because of the prior controlled substance conviction. He objected to
the probation officer’s recommendation that, because Thompson was
on state probation at the time of the offense and his probation had
been revoked, the sentence for the instant offense should run consecu-
tively to the undischarged probation revocation sentence, pursuant to
USSG § 5G1.3, comment. (n.6).1 Thompson argued that § 5G1.3(b)
applied in his case because his state offense had been used to enhance
his base offense level. Section 5G1.3(b) provides that, when the
defendant is serving an undischarged term of imprisonment resulting
from offenses that have been fully taken into account in determining
1
Application Note 6 to § 5G1.3 directs that, if the defendant was on
federal or state probation, parole, or supervised release when he commit-
ted the instant offense, and his probation, parole, or supervised release
has since been revoked, the sentence for the instant offense should be
consecutive to the revocation sentence.
UNITED STATES v. THOMPSON 3
the offense level for the instant offense, a sentence concurrent to the
undischarged term shall be imposed. However, the district court
determined that, as argued by the government and the probation offi-
cer, § 5G1.3(b) did not apply because Thompson’s state drug offense
had not been fully taken into account in determining his offense level.
We review the district court’s application of the relevant guideline
de novo. United States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995).
Thompson contends that his state drug offense was "fully taken into
account" in the determination of his offense level for the instant
offense because he received a six-level enhancement of his base
offense level because of the nature of his prior state offense.2 How-
ever, only the fact of the prior drug conviction was considered in
determining his offense level. Thompson’s conduct in the drug
offense did not otherwise affect the calculation of his sentence for the
instant offense.
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 reasoning is persuasive, as it comports
with the example cited in Application Note 2 concerning subsection
(b) cases. Therefore, the district court did not err in finding that
Thompson’s prior controlled substance offense was not fully taken
into account in the calculation of his offense level.
2
Without the enhancement, Thompson’s base offense level would have
been 14; he was a "prohibited person" because he had two prior convic-
tions for domestic battery. USSG § 2K2.1(a)(6), comment. (n.6).
4 UNITED STATES v. THOMPSON
Thompson also argues that § 5G1.3(b) should apply because his
violation of probation was based in part on his possession of the same
firearm that was the basis of the instant federal offense, meaning that
the undischarged term of imprisonment resulted from the offense used
to calculate his offense level for the instant offense. However, the
offense that resulted in the undischarged term of imprisonment was
the underlying prior offense, not the conduct that violated the condi-
tions of parole. Garcia-Hernandez, 237 F.3d at 110. Thompson’s
claim thus fails.
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