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United States v. Lee.

No. 21-6167. 6/27/2023. W.D.Okla. Judge Carson. Felon in Possession of a Firearm—US Sentencing Guideline § 5G1.3(b)(1)—District Court Discretion—Downward Sentencing Adjustment.

June 27, 2023

Lee was charged in state court with feloniously pointing a firearm, kidnapping, sexual battery, and possession of a firearm after former felony conviction. He pleaded guilty to being a felon in possession, the state dismissed the other three counts, and he was sentenced to 84 months’ imprisonment. Lee was then indicted in federal court with being a felon in possession of a firearm based on the same events and again pleaded guilty. At Lee’s federal sentencing, the presentence investigation report (PSR) initially calculated his US Sentencing Guidelines (USSG) range to be 324 to 405 months’ imprisonment, but the statutory maximum was 120 months’ imprisonment. The PSR noted that Lee had pleaded guilty in the state court case and was serving a seven-year prison sentence for which he had been in continuous primary state custody, and that his conduct in that case was relevant to the federal offense. Lee objected to the PSR and requested that the district court reduce his sentence by 15 months under USSG § 5G1.3(b)(1) because the Bureau of Prisons (BOP) would not credit him for the time he had served on his state case. The district court overruled Lee’s objection and stated that while it was not inclined to vary downward 15 months, it had no objection to the BOP crediting Lee for time served. The court declined to apply USSG § 5G1.3(b)(1) and sentenced Lee to 120 months’ imprisonment to run concurrently to any state term of imprisonment.

On appeal, Lee argued that his sentence must be vacated and his case remanded for resentencing because the district court procedurally erred in disregarding USSG § 5G1.3(b)(1) when determining Lee’s advisory USSG sentence before exercising its discretion to vary from that sentence. Under USSG § 5G1.3(b), if a term of imprisonment resulted from another offense that is relevant conduct to the instant offense, the court must (1) adjust the federal sentence for a period of imprisonment already served on the undischarged imprisonment term, if the court finds that the BOP will not credit it to the federal sentence; and (2) run the federal sentence concurrently to the remainder of the undischarged imprisonment term. Although the USSG are advisory and district courts have discretion to vary from the USSG imprisonment range, the district court still must properly calculate and consider the advisory recommendation. Here, Lee’s state court offense is relevant conduct to the federal offense, so the USSG required the district court to consider USSG § 5G1.3(b)(1) and adjust the sentence downward for the time Lee already served on his undischarged imprisonment term. Therefore, the district court erred.

The sentence was vacated and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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