United States v. Billy Neal Davis , 170 F. App'x 987 ( 2006 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1708
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Northern District of Iowa.
    Billy Neal Davis,                        *
    *      [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: March 1, 2006
    Filed: March 20, 2006
    ___________
    Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Billy Neal Davis (Davis) pled guilty to being a felon in possession of a firearm
    and ammunition in violation of 
    18 U.S.C. § 922
    (g)(1). Davis argues on appeal the
    district court1 erred when, over his objection, it applied U.S.S.G. § 5G1.3(c) instead
    of section 5G1.3(b) and declined to adjust his sentence for time he had served on an
    undischarged term of imprisonment imposed in state court for burglary. See U.S.S.G.
    §§ 5G1.3(b) (if defendant has undischarged prison term for offense which was
    relevant conduct and basis for offense-level increase as to instant offense, court shall
    1
    The Honorable Linda R. Reade, United States District Judge for the Northern
    District of Iowa.
    adjust instant sentence to reflect time already served on undischarged term if Bureau
    of Prisons will not be giving credit, and shall run instant sentence concurrently with
    remainder of undischarged term) and 5G1.3(c), p.s. (court may run sentence for
    instant offense concurrently with or consecutively to undischarged prison term to
    achieve reasonable punishment for instant offense). We disagree. We see no clear
    error in the district court’s determination that subsection (c) rather than (b) applied.
    See U.S.S.G. § 5G1.3, comment. (n.2(A)); United States v. Salter, 
    418 F.3d 860
    , 862
    (8th Cir. 2005) (application of Guidelines is reviewed de novo and factual findings for
    clear error), cert. denied, 
    74 U.S.L.W. 3473
     (U.S. Feb. 21, 2006) (No. 05-8557);
    United States v. Burch, 
    406 F.3d 1027
    , 1030 (8th Cir.) (decision whether to apply
    § 5G1.3(b) or (c) is usually fact-sensitive inquiry reviewed for clear error), cert.
    denied, 
    126 S. Ct. 667
     (2005).
    Finding neither clear factual error nor legal error, we affirm.
    ______________________________
    -2-
    

Document Info

Docket Number: 05-1708

Citation Numbers: 170 F. App'x 987

Filed Date: 3/20/2006

Precedential Status: Non-Precedential

Modified Date: 1/12/2023