United States v. Lyons

¶4PER CURIAM.

¶5Greg Robert Lyons appeals his fifteen-year sentence imposed by the district court1 after he pleaded guilty to one count of bank robbery and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 2113(a). We affirm.

¶6Lyons attempted a series of bank robberies in Minnesota in early October 1991. After Lyons successfully robbed one bank, he made his way to Reno, Nevada, where he burglarized a residence on October 28 and obtained over $250,000 in personal property, including three revolvers. Lyons returned to Minnesota and was arrested there on November 20, 1991, after throwing one of the stolen revolvers out the window of his vehicle as police were pursuing him. Lyons was convicted of burglary and grand larceny in Nevada in March 1992, and received consecutive ten-year and five-year state sentences. While incarcerated in Nevada, Lyons contacted the FBI and admitted to committing the Minnesota bank robbery. Lyons was taken into federal custody in August 1993.

¶7The parties agreed to a recommended base offense level of 33 based on Lyons’ status as an armed career criminal, a three-level reduction for acceptance of responsibility, a criminal history category of VI, a guidelines range of 168 to 210 months imprisonment, and a statutory mandatory minimum of 15 years (or 180 months). The government agreed to recommend that Lyons’ sentence be imposed to run concurrently with his Nevada sentence. Lyons, however, believed that his federal sentence should run concurrently with the entire state sentence under U.S.S.G. § 5G1.3(b)2 because his Nevada offenses and his possession of firearms arose out of a single course of conduct, and he should be given credit for time already served in state custody. The government *311argued that section 5G1.3(c)3 applied instead: Lyons’ federal and state sentences should run concurrently, but Lyons should not be given credit for time already served in state custody. At sentencing, the court agreed with the government, applied section 5G1.3(c), and imposed two concurrent fifteen-year prison terms to be served concurrently with the remainder of Lyons’ state sentence.

¶8On appeal, Lyons argues the district court erred in failipg to sentence him under section 5G1.3(b). We review the district court’s application of section 5G1.3 de novo. United States v. Brewer, 23 F.3d 1317, 1320 (8th Cir.1994) (citing United States v. Gullickson, 981 F.2d 344, 346 (8th Cir.1992)). Sentencing courts must follow the procedures set out in section 5G1.3 and impose a sentence accordingly. Gullickson, 981 F.2d at 349. We conclude the district court correctly determined subsection (b) did not apply. Although that subsection allows adjustment for any prison time already served as a result of conduct fully taken into account in determining the sentence for the instant offense, Lyons’ base offense level was solely the result of his armed-career-criminál status, and the Nevada offenses were not considered in the offense-level calculation. In addition, applying subsection (b) would defeat the goal of reasonable incremental punishment for the instant offenses. The district court’s application of subsection (c) — making Lyons’ federal sentence concurrent with the remainder of his unexpired state sentence — achieved the desired result of giving him some sentencing credit for the overlap in his state and federal offense conduct, and also of imposing some incremental punishment for the instant offenses.

¶9Accordingly, the judgment is affirmed.