US v. Gregory Adkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00076-1 Copies to all parties and the district court/agency. [999051188].. [12-4777]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Bruce

appeals

PER CURIAM:
Gregory

Adkins

from

his

108-month

sentence imposed pursuant to his guilty plea to possession of an
unregistered
district

machine

court

gun.

erred

cross-reference

in

According

Adkins,

to

On

appeal,

when

it

calculating
his

he

asserts

applied
Adkins’

the

that

kidnapping

Guidelines

sentence

should

the

range.

have

been

cross-referenced to the crime of wanton endangerment, as his
actions did not constitute kidnapping under West Virginia law
and

were

instead

endangerment. 1

merely

incidental

to

the

crime

of

We affirm.

We review a sentence for abuse of discretion.
United States, 552 U.S. 38, 51 (2007).
review

requires

wanton

the

court

to

ensure

Gall v.

The first step in this
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

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“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.
found

that,

under

these

facts,

the

forcible

The court

restraint

and

transportation of the victim was not incidental to the robbery
of the victim and, instead, constituted kidnapping.

2

Id.

West Virginia’s kidnapping statute criminalizes unlawful
restraint. W. Va. Code § 61-2-14a.

3

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Applying the Kitchen factors to this case, we conclude
that

Adkins’

endangerment.

kidnapping

was

not

incidental

to

wanton

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

Adkins’

influence

actions

likely

went

constituted

beyond

that

wanton

crime.

kidnapping was not an incidental crime.

endangerment,

Therefore,

the

Accordingly, we find

that the district court correctly applied the kidnapping crossreference, and there was consequently no procedural error in
calculating

Adkins’

Adkins’ sentence.
facts

and

legal

Guidelines

range.

As

such,

we

affirm

We dispense with oral argument because the
contentions

are
4

adequately

presented

in

the

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materials

before

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this

court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED

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