United States v. Adams , 39 F. App'x 36 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4726
DONALD ADAMS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Cameron McGowan Currie, District Judge.
(CR-01-205)
Submitted: April 23, 2002
Decided: May 1, 2002
Before WIDENER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, Marshall Prince, Assistant United States Attorney, Ann
Agnew Cupp, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. ADAMS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Donald Adams pled guilty to being a felon in possession of a fire-
arm, 18 U.S.C.A. § 922(g)(1) (West 2000), and was sentenced to a
term of forty-six months imprisonment. Adams appeals his sentence,
alleging that the district court erred in refusing to make his sentence
concurrent with a state sentence he was serving pursuant to U.S. Sen-
tencing Guidelines Manual § 5G1.3(b) (2000). We affirm.
Under § 5G1.3(b), when a defendant is serving an undischarged
term of imprisonment for an offense that has "been fully taken into
account in the determination of the offense level for the instant
offense, the sentence for the instant offense shall be imposed to run
concurrently with the undischarged term of imprisonment." Under
§ 5G1.3(c), if neither subsection (a) (for offenses committed while the
defendant is serving an undischarged term of imprisonment) nor sub-
section (b) applies, the district court may impose a sentence that is
concurrent, partly concurrent, or consecutive to the undischarged term
of imprisonment "to achieve a reasonable punishment for the instant
offense."
While executing a search warrant at Adams’ home in November
2000, drug enforcement agents discovered a shotgun and a rifle which
Adams was prohibited from possessing because of a 1990 drug con-
viction. After the search, Adams was convicted of multiple drug
offenses in state court and sentenced to five years imprisonment. He
subsequently pled guilty to the instant federal firearm offense.
Adams’ base offense level was set at 24 because of his two prior fel-
ony drug convictions, see USSG § 2K2.1(a)(2), and the sentence for
each prior conviction received criminal history points. Without mak-
ing a specific finding, the district court implicitly determined that
§ 5G1.3(b) did not apply and imposed a sentence partially consecu-
tive to the undischarged term of imprisonment Adams was then serv-
UNITED STATES v. ADAMS 3
ing. We review the district court’s application of the relevant
guideline for abuse of discretion. United States v. Puckett, 61 F.3d
1092, 1097 (4th Cir. 1995).
Adams argues, as he did in the district court, that his state drug
offense was "fully taken into account" in the determination of his
offense level for the instant offense because he received an enhanced
base offense level as a result of the state conviction and also received
three criminal history points for the sentence. However, the state drug
offense was not treated as relevant conduct in determining the offense
level for the instant offense. Only the fact of the prior conviction was
considered.
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 interpretation comports with the exam-
ple cited in Application Note 2 concerning subsection (b) cases,
which describes a defendant being sentenced for a federal drug
offense who is held accountable for an additional drug amount for
which he has been convicted and sentenced in state court.
Adams relies on United States v. Lee, No. 93-5931, 1994 WL
717476 (4th Cir. Dec. 29, 1994) (unpublished) (vacating and remand-
ing for resentencing under § 5G1.3(b) where defendant serving state
sentence for voluntary manslaughter received four-level enhancement
pursuant to § 2K2.1(b)(5) for use of the firearm in another felony).
Unpublished cases are not binding precedent in this circuit. See 4th
Cir. R. 36(c). In any event, Lee is distinguishable because the defen-
dant in that case received an enhancement to his base offense level
4 UNITED STATES v. ADAMS
for having used the gun in another felony, not simply for the fact of
the prior offense.
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