United States v. Rogelio Sanchez Molinar , 704 F. App'x 629 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10430
Plaintiff-Appellee, D.C. No.
4:14-cr-01069-JAS-BGM-1
v.
ROGELIO SANCHEZ MOLINAR, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted September 14, 2016
Resubmitted November 29, 2017
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Rogelio Sanchez Molinar pled guilty to two counts of possession of
ammunition by a prohibited possessor and now challenges his sentence. We
resolve his challenge to the district court’s application of an enhancement based on
a prior conviction for a crime of violence. Molinar also contends that the district
court erred by failing to conduct the “relevant conduct” analysis required by U.S.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sentencing Guidelines Section 5G1.3 to determine whether his federal sentence
should have run concurrently with his state sentence for trafficking in stolen
property. He further contends that his sentence was substantively unreasonable
because the district court did not credit the time he had served on his state court
sentence. We affirm.
Contrary to Molinar’s assertions, “relevant conduct” for the purposes of
Section 5G1.3(b) does not generally mean all conduct that was part of a common
scheme. That section defines “relevant conduct” through reference to Section
1B1.3(a)(1)-(a)(3). See U.S. SENTENCING GUIDELINES MANUAL § 5G1.3(b) (U.S.
SENTENCING COMM’N 2014). The conduct underlying Molinar’s state conviction,
which was based on his sale of other types of stolen property, does not qualify as
relevant conduct to his ammunition possession offenses under any of these
definitions.
Section 1B1.3(a)(2)’s “same course of conduct or common scheme”
language only comes into play if Section 3D1.2(d) would require grouping of
multiple counts. Section 3D1.2 provides that “counts [that] involv[e] substantially
the same harm shall be grouped together.” Although this section would require
grouping trafficking in stolen property offenses and would also require grouping
firearms and ammunitions offenses, there is no indication that these two types of
offenses would be grouped together under 3D1.2(d) because the types of harm are
2
not the same. See United States v. Nanthanseng, 221 F.3d 1082, 1084 (9th Cir.
2000) (holding that the district court did not err by refusing to group “closely
related” drug and firearm crimes on the basis of differing societal harms). Because
the offenses would not be grouped under Section 3D1.2(d), the state offense is not
relevant conduct under Section 1B1.3(a)(2). And because it does not qualify under
Section 1B1.3(a)(1) or (a)(3) either, Section 5G1.3 does not apply. As a result, the
district court did not err.
Molinar’s argument that his sentence is substantively unreasonable also
fails. The court observed that Molinar had “engaged in a pattern . . . over ten years
of criminal activity that is very significant and involved victims and that frankly
made [Molinar] a danger to the community,” that “[t]he record shows [Molinar
has] five prior felony convictions” and a “whole host of other misdemeanors,” and
that selling ammunition and possessing ammunition is a serious offense (and that it
was not the first time Molinar had committed this offense). Taking these factors
into consideration, the district court did not abuse its discretion in imposing
Molinar’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Nor is it
clear that the court intended to credit Molinar more than the two months remaining
on his state court sentence.
AFFIRMED.
3