US v. Jenkins

Filing 920071107

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4285 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CHRISTOPHER MICHAEL JENKINS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Jerome B. Friedman, District Judge. (4:06-cr-00066-JBF) Submitted: August 31, 2007 Decided: November 7, 2007 Before MOTZ and SHEDD, Circuit Judges, and WILKINS, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Walter B. Dalton, Assistant Federal Public Defender, Frances H. Pratt, Research and Writing Attorney, Norfolk, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Jessica M. Norris, Special Assistant United States Attorney, Newport News, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher Michael Jenkins appeals his 120-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1), 924(a)(2) (2000). argues that under U.S. Sentencing On appeal, Jenkins Manual ("USSG") Guidelines 5G1.3(b)(1) (2006), the district court should have considered whether time served on a Virginia sentence for a related offense would be credited by the Bureau of Prisons ("BOP"), and if not, should have adjusted his sentence accordingly. The Government agrees that Jenkins' sentence should have been adjusted pursuant to USSG 5G1.3(b)(1). We vacate Jenkins' sentence and remand for the district court to consider USSG 5G1.3(b). "[I]f offense that is a term of imprisonment conduct to resulted from another of relevant the instant offense conviction" and "that was the basis for an increase in the offense level for the instant offense," 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." USSG 5G1.3(b)(1)-(2). - 2 - Jenkins' Virginia abduction conviction was "relevant conduct" for purposes of his conviction under 922(g)(1) and "was the basis for an increase in the offense level" because Jenkins' offense level was adjusted upward by four levels based on his commission of the firearm offense "in connection with another felony offense." See USSG 2K2.1(b)(6) (defining "Specific Offense Characteristics" for offense of Unlawful Possession of a Firearm); see also USSG 1B1.3(a)(1)(A) (specific offense characteristics determined on the basis of "all acts and omissions" committed by the defendant). Therefore, Jenkins was eligible for concurrent sentences for his state and federal convictions (which the district court considered and ordered) and also for an adjustment of his federal sentence for the time he served in state custody pursuant to the state abduction conviction (which the district court declined to consider). Because federal law does not credit to a federal sentence time that will be credited to a state sentence, it is clear that the BOP would not credit Jenkins' federal sentence for time served on the state charge. U.S.C. 3585(b); Va. Code Ann. 53.1-187. See 18 Thus, while the district court indicated that it had no role in the matter, the court should have considered and applied USSG 5G1.3(b)(1) to adjust Jenkins' sentence. Accordingly, we vacate Jenkins' sentence and remand to the district court with directions to follow the dictates of USSG - 3 - 5G1.3(b)(1) in resentencing Jenkins. 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. VACATED AND REMANDED - 4 -

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