United States v. Ian Coles

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 1, 2018
• Docket: 17-4583
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4583

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IAN B. COLES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond, Henry E. Hudson, District Judge. (3:17-cr-00052-HEH-1)

Submitted: April 27, 2018 Decided: May 1, 2018 Amended: May 1, 2018

Before WILKINSON and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Alexandria, Virginia, Valencia D. Roberts, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Tracy Doherty-McCormick, Acting United States Attorney, Alexandria, Virginia, Peter S. Duffey, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Ian Coles pled guilty without a plea agreement to possession of a firearm (a .38

caliber revolver) by a convicted felon, 18 U.S.C. § 922(g)(1) (2012). He was sentenced

to 120 months in prison. The sentence runs consecutively to a 60-month sentence

previously imposed in the Eastern District of North Carolina for a § 922(g)(1) violation.

The North Carolina offense involved a shotgun. Coles appeals, claiming that the two

sentences should have run concurrently, rather than consecutively. We affirm.

We review a sentence for procedural and substantive reasonableness under a

deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007);

United States v. Berry, 814 F.3d 192, 194-95 (4th Cir. 2016) In determining whether a

sentence is procedurally reasonable, we consider, among other factors, whether the

district court properly calculated the defendant’s advisory Guidelines range and

adequately explained its chosen sentence. Gall, 552 U.S. at 51. We review a district

court’s decision to impose a concurrent or consecutive sentence for abuse of discretion

but review de novo whether the district court properly applied the relevant Guidelines.

United States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995).

District courts “have long been understood to have discretion to select whether

the sentences they impose will run concurrently or consecutively with respect to other

sentences that they impose, or that have been imposed in other proceedings.” Setser v.

United States, 566 U.S. 231, 236 (2012). Indeed, courts have statutory discretion to

impose a consecutive or concurrent sentences. 18 U.S.C. § 3584(a) (2012). In exercising

this discretion, a court is required to consider the factors set forth in 18 U.S.C. § 3553(a)

3 (2012). 18 U.S.C. § 3584(b). The Guidelines also offer direction to courts that must

decide whether to run a sentence consecutively or concurrently. See U.S. Sentencing

Guidelines Manual § 5G1.3 (2016). The relevant subsections in this case are § 5G1.3(b)

and § 5G1.3(d), p.s.

“Generally speaking, § 5G1.3(b) addresses the situation in which a defendant is

prosecuted in more than one jurisdiction for related conduct” and “operates to mitigate

the possibility that the fortuity of two separate prosecutions will grossly increase a

defendant’s sentence.” United States v. Rouse, 362 F.3d 256, 262 (4th Cir. 2004)

(internal quotation marks omitted). This subsection provides that, 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” in the following

manner:

(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) .

An application note clarifies that § 5G1.3(b) applies, and a concurrent sentence is

appropriate, when “all of the prior offense is relevant conduct to the instant offense” and

that “[c]ases in which only part of the prior offense is relevant conduct to the instant

offense are covered under subsection (d).” USSG § 5G1.3 cmt. n.2(A). Section

5G1.3(d), p.s., in turn, provides that, “[i]n any other case involving an undischarged term

4 of imprisonment, the sentence for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant offense.” USSG

§ 5G1.3(d), p.s.

The crucial issue here is whether all of the North Carolina offense was conduct

relevant to the Virginia offense. We hold that it was not. Coles’ North Carolina offense

involved a separate firearm, the offense occurred in a different jurisdiction, and Coles

possessed the revolver in December 2016 -- six months after committing the North

Carolina offense. Further, not all of the conduct that was deemed relevant to the North

Carolina crime, such as the enhancement for Coles’ role in the North Carolina offense,

was conduct relevant to the Virginia crime.

We therefore affirm. We dispense with oral argument because the facts and legal

contentions are adequately presented in the material before us and argument would not

aid the decisional process.

AFFIRMED