United States v. Rahimi ( 2022 )

Case: 21-11001 Document: 00516349533 Page: 1 Date Filed: 06/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 8, 2022
No. 21-11001 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Zackey Rahimi,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-83-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Zackey Rahimi, after being charged with various state offenses,
pleaded guilty to a violation of federal law for possessing a firearm in
contravention of a restraining order. The district court ordered Rahimi’s
federal sentence of imprisonment to run concurrently with certain state-case
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-11001
sentences but to run consecutively with other state-case sentences because
the acts involved in the latter were not “relevant conduct” for purposes of
U.S.S.G. § 1B1.3. Rahimi appeals, challenging the finding that certain acts
were not relevant conduct. We find no clear error and affirm.
I.
Zackey Rahimi was suspected to have participated in a series of
shootings that occurred between December 2020 and January 2021. As a
result, police officers obtained a warrant to search his residence, and when
they executed the warrant, they found a pistol and a restraining order issued
on February 5, 2020. The order restrained Rahimi from possessing a firearm
and warned him that possession of a firearm or ammunition while the order
was in effect could be a felony under 18 U.S.C. § 922(g) and § 924(a)(2).
A federal grand jury indicted Rahimi for possession of firearms in
violation of sections 922(g)(8) and 924(a)(2).1 Later, Rahimi pleaded guilty.
At sentencing, the presentence investigation report (“PSR”) detailed
Rahimi’s lengthy criminal history. Relevant to this appeal are the state
charges that were pending against him for offenses that occurred from
December 2019 to November 2020. Three pending state charges resulted
from Rahimi’s use of a firearm in the physical assault of his girlfriend in
December 2019,2 and another state charge arose from an aggravated assault
with a deadly weapon of a different woman in November 2020. Rahimi
objected to the PSR, arguing that the pending charges described relevant
1
Rahimi moved to dismiss the indictment on the ground that section 922(g)(8) on
its face violates the Second Amendment and the district court denied the motion. Rahimi
appeals this decision but acknowledges that it is foreclosed by our binding precedent.
United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), cert. denied, 141 S. Ct. 1397 (2021).
2
The charges included terroristic threat of a family/household member, discharge
of a firearm in certain municipalities, and family violence assault causing bodily injury.
2
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conduct to the instant offense such that the sentence for the instant federal
offense should be ordered to run concurrently to the state sentences. The
district court overruled the objection, adopted the PSR, and ordered the
federal sentence to run consecutively to the pending charges because they
were not relevant conduct. Rahimi appeals, arguing that the district court
clearly erred by concluding the pending charges were not relevant conduct.
II.
A determination of relevant conduct is a finding of fact that is
reviewed for clear error. United States v. Brummett, 355 F.3d 343, 344–45 (5th
Cir. 2003). A district court has the discretion to order its sentences of
imprisonment be served concurrently or consecutively to anticipated state
terms of imprisonment. Setser v. United States, 566 U.S. 231, 236 (2012). A
determination of relevant conduct is “not clearly erroneous as long as [it is]
‘plausible in light of the record as a whole.’” United States v. Ortiz, 613 F.3d
550, 557 (5th Cir. 2010) (quoting United States v. Rhine, 583 F.3d 878, 885
(5th Cir. 2009)).
The sentencing guidelines provide that “the sentence for the instant
offense shall be imposed to run concurrently to the anticipated term of
imprisonment” if another offense is “relevant conduct . . . under the
provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3.” U.S.S.G.
§ 5G1.3(c). “Relevant conduct is defined as ‘all acts and omissions’
that . . . [are] part of the ‘same course of conduct’ as the offense of
conviction.” Ortiz, 613 F.3d at 557 (quoting U.S.S.G. § 1B1.3(a)(2)). Two or
more offenses may constitute as the same course of conduct “if they are
sufficiently connected or related to each other as to warrant the conclusion
that they are part of a single episode, spree, or ongoing series of
offenses.” § 1B1.3, cmt. (n.5(B)(ii)). Relevant factors include “the degree of
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similarity of the offenses, the regularity (repetitions) of the offenses, and the
time interval between the offenses.” Id.
III.
Rahimi argues that the pending charges are relevant to the instant
federal charge because they are all a part of a pattern of ongoing (i.e., similar)
conduct involving a firearm and domestic violence. He contends that the
temporal proximity favors a finding of relevant conduct because the
November 2020 conduct occurred just two months before the search of his
residence (resulting in the instant charge) and the December 2019 conduct
was little more than a year prior to the instant offense. Last, Rahimi argues
that the number of similar crimes involving firearm possession shows
regularity.
However, we conclude that the record as a whole supports the district
court’s finding that the pending state charges are not a part of the same
course of conduct as Rahimi’s possession of a firearm in violation of a
restraining order. First, although the record shows some regularity to
Rahimi’s violent use—and thus possession—of a firearm, we have previously
held that a 10-month lag between a past act and the instant offense is “not
strong” evidence of temporal proximity for purposes of section 1B1.3. United
States v. Davis, 967 F.3d 441, 442 (5th Cir. 2020) (per curiam). Second,
Rahimi’s December 2019 conduct involved the domestic assault of his
girlfriend in a public parking lot. When warned by his passenger about the
presence of another witness, Rahimi fired a shot at the witness. The instant
offense involves no public violence or domestic assault and so bears little
resemblance to the December 2019 events.
Similarly, Rahimi’s November 2020 conduct involved the violent use
of a firearm in furtherance of an assault. Indeed, Rahimi’s possession of a
firearm in that instance was also a violation of the February 2020 restraining
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order, but “[a]s we have previously cautioned . . . courts must not conduct
this [similarity] analysis at such a level of generality as to render it
meaningless.” United States v. Rhine, 583 F.3d 878, 888 (5th Cir. 2009).
Rahimi’s violent use of the firearm in November is meaningfully different
from merely possessing a firearm. Cf. United States v. Horton, 993 F.3d 370,
376 (5th Cir.), cert. denied, 142 S. Ct. 382 (2021) (finding meaningful
differences in the location of the conduct and amount of drugs at issue on
different occasions). Because the similarity and temporal-proximity factors
are strained,3 the district court’s finding that these previous acts are not
relevant conduct is “plausible in light of the record as a whole,” and
accordingly is not clearly erroneous. Rhine, 583 F.3d at 885.
III.
For the foregoing reasons, we AFFIRM.
3
See Davis, 967 F.3d at 442 (finding no relevant conduct when the temporal
proximity was “not strong” and the other two factors were “arguably absent”).
5