Case: 19-10020 Date Filed: 03/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 19-10020; 19-10027 Non-Argument Calendar ________________________
D.C. Docket Nos. 5:18-cr-00045-MTT-CHW-1, 5:17-cr-00034-MTT-CHW-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE JAMAR CHAMBERS,
Defendant - Appellant.
________________________
Appeals from the United States District Court for the Middle District of Georgia ________________________
(March 16, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM: Case: 19-10020 Date Filed: 03/16/2020 Page: 2 of 7
Andre Jamar Chambers appeals his 60-month total sentence, imposed after
he pled guilty to two separate counts of conspiracy to commit theft from a federal
firearms licensee, in violation of 18 U.S.C. §§ 371, 922(u). Chambers argues that
the district court erred by declining to run his federal sentence concurrently to the
state sentences he was already serving. Chambers argues that because the district
court used conduct that was prosecuted in state court as relevant conduct at
sentencing, the federal and state sentences should run concurrently under the
Sentencing Guidelines. See U.S.S.G. § 5G1.3(b). After careful consideration, we
conclude that the district court did not use Chambers’s state offenses as relevant
conduct and therefore did not err in declining to run his federal sentence
concurrently to his state sentences. Thus, we affirm.
I.
Federal grand juries in the Middle and Northern Districts of Georgia indicted
Chambers on firearm charges related to two burglaries.1 Both burglaries involved
driving a stolen van into a pawn shop and stealing, among other items, firearms.
Chambers consented to the transfer of his Northern District case to the Middle
District, where he pled guilty in each case to one count of conspiracy to commit
theft from a federal firearms licensee, in violation of 18 U.S.C. §§ 371, 922(u).
1 Because we write only for the parties, we set out only the facts necessary to address Chambers’s arguments.
2 Case: 19-10020 Date Filed: 03/16/2020 Page: 3 of 7
A presentence investigation report (“PSR”) was prepared for sentencing. In
addition to the facts of the burglaries for which Chambers pled guilty, the PSR
detailed additional criminal offenses in which Chambers had participated,
including a burglary of a clothing store and a home invasion. Chambers had pled
guilty in Fulton County Superior Court to each crime and was serving his
sentences in state court for these offenses at the time of his federal sentencing.
At sentencing, Chambers did not object to the calculation of the Sentencing
Guidelines range set forth in the PSR which, combined with his statutory
maximum, indicated a guidelines range of 57 to 60 months’ imprisonment. Both
parties agreed that Chambers’s sentences for both federal offenses should run
concurrently.
Chambers further requested that the district court run his federal sentence
concurrently with his state sentences. Chambers’s counsel claimed the state-
offense conduct had been taken into consideration and made reference to
§ 5G.3(b)(2) in the following exchange with the court:
[DEFENSE COUNSEL:] Chambers is serving a State sentence and was writ’ed in on this case. In that offense he was convicted in . . . 2015. It was used as relevant conduct in this case.
And so what I think, pursuant to 5G1.3(b)(2), that this case should run concurrent to the sentence that he's currently serving. So I would ask the Court to run . . . [the] sentence this Court imposes concurrent to that sentence as well.
3 Case: 19-10020 Date Filed: 03/16/2020 Page: 4 of 7
...
[THE COURT:] This sentence shall run consecutively to the sentences you are presently serving for Fulton County Superior Court Case 14-SC-126800.
And, Mr. Westbro[o]k, that is, among other reasons, because it was mentioned, it was not a factor in his guideline calculations. . . .
Doc. 36 at 8-9 (emphasis added).2 The district court therefore declined to run
Chambers’s federal sentence concurrently with his state sentences because the state
sentences had not been a factor in his Sentencing Guidelines calculations.
This is Chambers’s appeal.
II.
We review a district court’s legal interpretation of the Sentencing Guidelines
de novo and the district court’s factual findings on sentencing for clear error.
United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009). A district court’s
determination that conduct is “relevant conduct” is a finding of fact that we review
for clear error. United States v. Valarezo-Orobio, 635 F.3d 1261, 1264 (11th Cir.
2011).
III.
Section 5G1.3 of the Sentencing Guidelines operates to “protect a criminal
defendant from duplicative prosecutions.” United States v. Bidwell, 393 F.3d
1206, 1209 (11th Cir. 2004). It does so by providing guidance for sentencing a
2 “Doc. #” refers to the numbered entry on the district court’s docket. 4 Case: 19-10020 Date Filed: 03/16/2020 Page: 5 of 7
defendant who is subject to an undischarged term of imprisonment. U.S.S.G
§ 5G1.3. The relevant portion of § 5G1.3 provides: “If . . . a term of imprisonment
resulted from another offense that is relevant conduct to the instant offense of
conviction . . . , the sentence for the instant offense shall be imposed . . . to run
concurrently to the remainder of the undischarged term of imprisonment.” Id.
§ 5G1.3(b)(2) (emphasis added).
Chambers argues that because the offenses for which he received his state
sentences—the home invasion and burglary of the clothing store—are “relevant
conduct,” the district court should, under U.S.S.G. § 5G1.3(b), have imposed his
federal sentences to run concurrently to his state sentences. The government
disagrees because in calculating Chambers’s offense level the district court did not
consider the offense conduct for which Chambers’s state sentences were imposed.
We agree with the government.
Section 5G1.3(b) applies where a defendant has an undischarged term of
imprisonment that was “relevant conduct” to the instant offense. See id. Section
1B1.3 of the Guidelines details what conduct is to be considered relevant conduct.
See U.S.S.G. § 1B1.3. Where a district court did not take into account other
offense conduct in determining the instant offense level, however, that conduct
does not qualify as “relevant conduct” under § 1B1.3. See United States v. Knight,
562 F.3d 1314, 1329 (11th Cir. 2009) (determining that § 5G1.3(b) applies where
5 Case: 19-10020 Date Filed: 03/16/2020 Page: 6 of 7
“a defendant has a prior offense that is relevant to the instant offense and resulted
in an increase in the offense level of the instant offense” (emphasis added)).
Here, even though the district court potentially could have, under § 1B1.3,
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Case: 19-10020 Date Filed: 03/16/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 19-10020; 19-10027 Non-Argument Calendar ________________________
D.C. Docket Nos. 5:18-cr-00045-MTT-CHW-1, 5:17-cr-00034-MTT-CHW-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRE JAMAR CHAMBERS,
Defendant - Appellant.
________________________
Appeals from the United States District Court for the Middle District of Georgia ________________________
(March 16, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM: Case: 19-10020 Date Filed: 03/16/2020 Page: 2 of 7
Andre Jamar Chambers appeals his 60-month total sentence, imposed after
he pled guilty to two separate counts of conspiracy to commit theft from a federal
firearms licensee, in violation of 18 U.S.C. §§ 371, 922(u). Chambers argues that
the district court erred by declining to run his federal sentence concurrently to the
state sentences he was already serving. Chambers argues that because the district
court used conduct that was prosecuted in state court as relevant conduct at
sentencing, the federal and state sentences should run concurrently under the
Sentencing Guidelines. See U.S.S.G. § 5G1.3(b). After careful consideration, we
conclude that the district court did not use Chambers’s state offenses as relevant
conduct and therefore did not err in declining to run his federal sentence
concurrently to his state sentences. Thus, we affirm.
I.
Federal grand juries in the Middle and Northern Districts of Georgia indicted
Chambers on firearm charges related to two burglaries.1 Both burglaries involved
driving a stolen van into a pawn shop and stealing, among other items, firearms.
Chambers consented to the transfer of his Northern District case to the Middle
District, where he pled guilty in each case to one count of conspiracy to commit
theft from a federal firearms licensee, in violation of 18 U.S.C. §§ 371, 922(u).
1 Because we write only for the parties, we set out only the facts necessary to address Chambers’s arguments.
2 Case: 19-10020 Date Filed: 03/16/2020 Page: 3 of 7
A presentence investigation report (“PSR”) was prepared for sentencing. In
addition to the facts of the burglaries for which Chambers pled guilty, the PSR
detailed additional criminal offenses in which Chambers had participated,
including a burglary of a clothing store and a home invasion. Chambers had pled
guilty in Fulton County Superior Court to each crime and was serving his
sentences in state court for these offenses at the time of his federal sentencing.
At sentencing, Chambers did not object to the calculation of the Sentencing
Guidelines range set forth in the PSR which, combined with his statutory
maximum, indicated a guidelines range of 57 to 60 months’ imprisonment. Both
parties agreed that Chambers’s sentences for both federal offenses should run
concurrently.
Chambers further requested that the district court run his federal sentence
concurrently with his state sentences. Chambers’s counsel claimed the state-
offense conduct had been taken into consideration and made reference to
§ 5G.3(b)(2) in the following exchange with the court:
[DEFENSE COUNSEL:] Chambers is serving a State sentence and was writ’ed in on this case. In that offense he was convicted in . . . 2015. It was used as relevant conduct in this case.
And so what I think, pursuant to 5G1.3(b)(2), that this case should run concurrent to the sentence that he's currently serving. So I would ask the Court to run . . . [the] sentence this Court imposes concurrent to that sentence as well.
3 Case: 19-10020 Date Filed: 03/16/2020 Page: 4 of 7
...
[THE COURT:] This sentence shall run consecutively to the sentences you are presently serving for Fulton County Superior Court Case 14-SC-126800.
And, Mr. Westbro[o]k, that is, among other reasons, because it was mentioned, it was not a factor in his guideline calculations. . . .
Doc. 36 at 8-9 (emphasis added).2 The district court therefore declined to run
Chambers’s federal sentence concurrently with his state sentences because the state
sentences had not been a factor in his Sentencing Guidelines calculations.
This is Chambers’s appeal.
II.
We review a district court’s legal interpretation of the Sentencing Guidelines
de novo and the district court’s factual findings on sentencing for clear error.
United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009). A district court’s
determination that conduct is “relevant conduct” is a finding of fact that we review
for clear error. United States v. Valarezo-Orobio, 635 F.3d 1261, 1264 (11th Cir.
2011).
III.
Section 5G1.3 of the Sentencing Guidelines operates to “protect a criminal
defendant from duplicative prosecutions.” United States v. Bidwell, 393 F.3d
1206, 1209 (11th Cir. 2004). It does so by providing guidance for sentencing a
2 “Doc. #” refers to the numbered entry on the district court’s docket. 4 Case: 19-10020 Date Filed: 03/16/2020 Page: 5 of 7
defendant who is subject to an undischarged term of imprisonment. U.S.S.G
§ 5G1.3. The relevant portion of § 5G1.3 provides: “If . . . a term of imprisonment
resulted from another offense that is relevant conduct to the instant offense of
conviction . . . , the sentence for the instant offense shall be imposed . . . to run
concurrently to the remainder of the undischarged term of imprisonment.” Id.
§ 5G1.3(b)(2) (emphasis added).
Chambers argues that because the offenses for which he received his state
sentences—the home invasion and burglary of the clothing store—are “relevant
conduct,” the district court should, under U.S.S.G. § 5G1.3(b), have imposed his
federal sentences to run concurrently to his state sentences. The government
disagrees because in calculating Chambers’s offense level the district court did not
consider the offense conduct for which Chambers’s state sentences were imposed.
We agree with the government.
Section 5G1.3(b) applies where a defendant has an undischarged term of
imprisonment that was “relevant conduct” to the instant offense. See id. Section
1B1.3 of the Guidelines details what conduct is to be considered relevant conduct.
See U.S.S.G. § 1B1.3. Where a district court did not take into account other
offense conduct in determining the instant offense level, however, that conduct
does not qualify as “relevant conduct” under § 1B1.3. See United States v. Knight,
562 F.3d 1314, 1329 (11th Cir. 2009) (determining that § 5G1.3(b) applies where
5 Case: 19-10020 Date Filed: 03/16/2020 Page: 6 of 7
“a defendant has a prior offense that is relevant to the instant offense and resulted
in an increase in the offense level of the instant offense” (emphasis added)).
Here, even though the district court potentially could have, under § 1B1.3,
considered the clothing store burglary and home invasion as relevant conduct, 3 it
did not do so. Chambers argues that the conduct was used as relevant conduct, but
he points to nothing in the guidelines calculation suggesting that either state
offense was used in calculating his offense level. Although the PSR listed the
home invasion and clothing store burglary in the description of the offense conduct
and the criminal history section, the probation officer calculated Chambers’s base
offense level and special characteristic enhancements based solely on conduct from
the pawnshop burglaries that formed the basis of his federal charges.
To the extent Chambers argues that the inclusion of the state offenses in the
offense conduct section of the PSR leads to a different result, we disagree.
Although the facts of the state convictions were laid out in the PSR, the district
court’s exchange with defense counsel at sentencing makes clear that the state
offenses were not used in determining Chambers’s offense level. Defense counsel
argued to the court that the offense conduct supporting the state conviction “was
used as relevant conduct in this case” and therefore U.S.S.G. § 5G1.3(b) applied.
3 Because it is unnecessary for us to decide whether the state-offense conduct could have been relevant conduct, we do not address it. 6 Case: 19-10020 Date Filed: 03/16/2020 Page: 7 of 7
Doc. 36 at 8. In its pronouncement of the sentence, however, the district court
stated that “[the] sentence shall run consecutively to the sentences you are
presently serving [for the state convictions] . . . because . . . it was not a factor in
[the] guideline calculations.” Id. at 9. Therefore, the record makes clear that the
offense conduct for which Chambers was currently serving a state sentence was
not “relevant conduct” under the Guidelines because it did not “result[] in an
increase in the offense level of the instant offense.” Knight, 562 F.3d at 1329.
Because the district court took neither the home invasion nor the clothing
store burglary into account when calculating Chambers’s offense level, that
conduct was not “relevant conduct” under U.S.S.G. § 1B1.3 and § 5G1.3(b). We
thus conclude that the district court did not err in declining to run Chambers’s
federal sentence concurrently to his state sentences.
IV.
For the reasons set forth above, we affirm Chambers’s sentence.
AFFIRMED.