United States v. Shawn McClain , 707 F. App'x 129 ( 2017 )


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  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4688
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SHAWN LAMONT MCCLAIN, a/k/a Gucci,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern District of West Virginia,
    at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:16-cr-00016-FPS-JES-1)
    Submitted: August 25, 2017                                        Decided: August 31, 2017
    Before WILKINSON, SHEDD, and THACKER, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Elgine Heceta McArdle, McARDLE LAW OFFICES, Wheeling, West Virginia, for
    Appellant. Betsy Steinfeld Jividen, Acting United States Attorney, Randolph J. Bernard,
    David J. Perri, Assistant United States Attorneys, Wheeling, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Shawn Lamont McClain pled guilty, without the benefit of a plea agreement, to
    conspiracy to distribute heroin and fentanyl (Count 1), in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(C), 846 (2012), distribution of heroin and fentanyl within 1000 feet
    of a protected location (Count 6), in violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(C), and
    distribution of heroin and fentanyl (Count 7), in violation of 
    21 U.S.C. § 841
    (a)(1),
    (b)(1)(C) (collectively, “2016 Convictions”).    The district court imposed concurrent
    sentences of 95 months’ imprisonment and ordered that such sentence run consecutively
    to the sentence imposed on a 2014 federal drug conviction (“2014 Conviction”). On
    appeal, McClain argues that: (1) the imposition of a consecutive sentence violated the
    Double Jeopardy Clause, as the sentencing court, when crafting the sentence for the 2014
    Conviction, took into account some of the conduct at issue in Count 6 of the 2016
    Convictions; and (2) the district court erred in failing to account for 
    18 U.S.C. § 3584
    (2012), and U.S. Sentencing Guidelines Manual § 5G1.3 (2015), when imposing the
    sentence on the 2016 Convictions to be consecutive to the sentence imposed on the 2014
    Conviction. We affirm.
    McClain’s first argument—that consideration of the conduct in Count 6 during
    sentencing for the 2014 Conviction and a subsequent conviction in 2016 based on that
    same conduct constitutes a double jeopardy violation—is squarely foreclosed by Supreme
    Court precedent. See Witte v. United States, 
    515 U.S. 389
    , 399 (1995) (holding “that use
    of evidence of related criminal conduct to enhance a defendant’s sentence for a separate
    crime within the authorized statutory limits does not constitute punishment for that
    2
    conduct within the meaning of the Double Jeopardy Clause”). McClain has not offered
    any reasoned distinction between his case and Witte, and, consequently, his convictions
    and sentence do not implicate the Double Jeopardy Clause.
    As to McClain’s second argument on appeal, “we review a district court’s decision
    to order consecutive or concurrent sentences for abuse of discretion . . . [but] review de
    novo whether the district court properly applied the relevant sentencing guideline to the
    defendant.” United States v. Puckett, 
    61 F.3d 1092
    , 1097 (4th Cir. 1995). Multiple
    sentences “may run concurrently or consecutively, except that the terms may not run
    consecutively for an attempt and for another offense that was the sole objective of the
    attempt.” 
    18 U.S.C. § 3584
    (a).     The statute mandates that “[t]he [district] court, in
    determining whether the terms imposed are to be ordered to run concurrently or
    consecutively, shall consider, as to each offense for which a term of imprisonment is
    being imposed, the factors set forth in [18 U.S.C. §] 3553(a).” 
    18 U.S.C. § 3584
    (b).
    The Guidelines provide that:
    If . . . a term of imprisonment resulted from another offense that is relevant
    conduct to the instant offense of conviction under the provisions of
    subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), 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.
    3
    USSG § 5G1.3(b). The Guidelines also state that, “[i]n any other case involving an
    undischarged term 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.; See United States v. Rouse, 
    362 F.3d 256
    , 262 (4th Cir. 2004)
    (discussing § 5G1.3(b)’s purpose and stating that “the provision applies—i.e., that a prior
    offense has been fully taken into account in the determination of the offense level for the
    instant offense—at least when conduct underlying a prior conviction is considered as
    relevant conduct” (internal quotation marks omitted)).
    Here, the 2014 Conviction stemmed from McClain’s conduct on January 20, 2013,
    when officers arrested McClain for possession of heroin, which he admitted he intended
    to sell. At the sentencing on the 2014 Conviction, the district court noted, among other
    factors, that McClain had continued to traffic in heroin, cited his subsequent arrest on
    Count 6 (of the 2016 charges) as evidence for that assertion, and concluded that confining
    him would end his drug activities. Thus, the district court considered the conduct at the
    center of Count 6 of McClain’s 2016 Convictions when imposing the sentence for the
    2014 Conviction.
    However, as counsel conceded during sentencing for the 2016 Convictions, the
    conduct underlying Count 6 was not “relevant conduct” for the 2014 Conviction. See
    USSG §§ 1B1.3, 3D1.2(d). Furthermore, the court in the 2014 Conviction did not treat
    the Count 6 conduct as if it had been a part of the offense of the 2014 Conviction The
    4
    district court merely considered the conduct in Count 6 as to a relevant § 3553(a) factor,
    namely, the need to protect the public.
    Similarly, McClain’s conduct underlying the 2014 Conviction did not qualify as
    relevant conduct for his 2016 Convictions. The earlier conduct did not occur during the
    course of the criminal conspiracy charged in Count 1, and the district court did not
    account for the earlier conduct when determining the amount of heroin attributable to
    McClain at the 2016 sentencing. Nor are the crimes sufficiently connected in other ways
    to qualify as closely related conduct. See United States v. McVey, 
    752 F.3d 606
    , 610 (4th
    Cir. 2014) (setting forth factors courts should consider); see also United States v. Wall,
    
    180 F.3d 641
    , 646 (5th Cir. 1999). (“In short, the two sets of offenses do not share many
    similarities other than that they both involved [heroin].”). We therefore conclude the
    conduct relating to McClain’s 2014 Conviction does not qualify as “relevant conduct” for
    the 2016 Convictions and that § 5G1.3(b)(2) does not apply. See Rouse, 
    362 F.3d at 263
    .
    Because USSG § 5G1.3(b) does not apply, the Guidelines provide that the district
    court may impose consecutive sentences “to achieve a reasonable punishment for the
    instant offense.” USSG § 5G1.3(d), p.s.; see USSG § 5G1.3, cmt. n.4(A) (outlining
    factors courts examine in fashioning sentence). Here, the district court considered several
    § 3553(a) factors with regard to the 2016 Convictions and considered all of the
    circumstances of McClain’s federal sentence for his 2014 conviction. Thus, we conclude
    that the court adequately complied with the requirements of USSG § 5G1.3(d).
    5
    Accordingly, we affirm the district court’s judgment. We dispense with oral
    argument because the facts and legal contentions are adequately presented in the
    materials before this court and argument would not aid the decisional process.
    AFFIRMED
    6
    

Document Info

Docket Number: 16-4688

Citation Numbers: 707 F. App'x 129

Judges: Wilkinson, Shedd, Thacker

Filed Date: 8/31/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024