United States v. Billy Neal Davis ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1708
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Billy Neal Davis, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 1, 2006
Filed: March 20, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Billy Neal Davis (Davis) pled guilty to being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1). Davis argues on appeal the
district court1 erred when, over his objection, it applied U.S.S.G. § 5G1.3(c) instead
of section 5G1.3(b) and declined to adjust his sentence for time he had served on an
undischarged term of imprisonment imposed in state court for burglary. See U.S.S.G.
§§ 5G1.3(b) (if defendant has undischarged prison term for offense which was
relevant conduct and basis for offense-level increase as to instant offense, court shall
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
adjust instant sentence to reflect time already served on undischarged term if Bureau
of Prisons will not be giving credit, and shall run instant sentence concurrently with
remainder of undischarged term) and 5G1.3(c), p.s. (court may run sentence for
instant offense concurrently with or consecutively to undischarged prison term to
achieve reasonable punishment for instant offense). We disagree. We see no clear
error in the district court’s determination that subsection (c) rather than (b) applied.
See U.S.S.G. § 5G1.3, comment. (n.2(A)); United States v. Salter, 418 F.3d 860, 862
(8th Cir. 2005) (application of Guidelines is reviewed de novo and factual findings for
clear error), cert. denied, 74 U.S.L.W. 3473 (U.S. Feb. 21, 2006) (No. 05-8557);
United States v. Burch, 406 F.3d 1027, 1030 (8th Cir.) (decision whether to apply
§ 5G1.3(b) or (c) is usually fact-sensitive inquiry reviewed for clear error), cert.
denied, 126 S. Ct. 667 (2005).
Finding neither clear factual error nor legal error, we affirm.
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