United States Court of Appeals

For the First Circuit

No. 09-1693

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT DUNBAR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Circuit Judge,

Souter, Associate Justice, *

and Howard, Circuit Judge.

Judith H. Mizner, Assistant Federal Public Defender, Federal

Defender Office, for appellant.

Thomas E. Kanwit, Assistant United States Attorney, with whom

Carmen M. Ortiz, United States Attorney, was on brief for appellee.

October 26, 2011

The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.
Per Curiam. Robert Dunbar robbed a federally-insured

bank in East Bridgewater, Massachusetts, and fled in a stolen car.

During the ensuing police pursuit, Dunbar crashed head-on into a

car driven by a teenage girl, who sustained serious injuries. State

and federal authorities prosecuted Dunbar separately. This appeal

raises the question whether the federal sentencing guidelines

require that the time Dunbar had already served on his state

sentences be credited toward his federal career-offender sentence.

Dunbar was sentenced in state court in December 2008,

where he was convicted of resisting arrest, receiving a stolen

vehicle, operating a motor vehicle under intoxication causing

serious bodily injury, reckless operation of a motor vehicle,

refusing to stop for a police officer, and operating a vehicle with

a suspended license. The state court sentenced Dunbar to two

consecutive terms totaling five years in prison, of which Dunbar

had served one year prior to his federal sentencing.

In federal court, Dunbar pled guilty to a one-count

indictment charging him with bank robbery under 18 U.S.C. § 2113(a)

(2006). At Dunbar's sentencing in April 2009, the district court

adopted the sentencing guidelines calculations set forth in

Dunbar's presentence report ("PSR"); in pertinent part, the court

first calculated Dunbar's total offense level under Chapters Two

and Three of the Guidelines to be 23, which among other adjustments

included a four-level increase for the serious bodily injuries

-2-
suffered by the teenage crash victim. U.S.S.G. § 2B3.1(b)(3)(B)

(2008).

The court next found that Dunbar was a career offender as

defined in U.S.S.G. § 4B1.1, and applied (as directed by the

guideline) the higher career-offender offense level of 29 (in lieu

of 23), see U.S.S.G. § 4B1.1(b), resulting in a guidelines range of

151 to 188 months' imprisonment. Dunbar sought credit under

U.S.S.G. § 5G1.3(b) for time he had already served on his state

convictions, but the court found that section 5G1.3(b) did not

apply because Dunbar was a career offender. 

After noting the sentencing factors set out in 18 U.S.C.

§ 3553(a) and emphasizing Dunbar's extensive criminal history and

the harm to the crash victim, the court imposed a within-guidelines

sentence of 158 months' imprisonment. The court ordered that term

to run concurrently with Dunbar's state sentences but refused to

reduce the federal sentence to account for the time Dunbar had

already served on his state sentences. Dunbar has now appealed to

contest this refusal.

Under the governing provision, a federal sentence imposed

on one subject to an undischarged prior sentence must be

consecutive in some cases, U.S.S.G. § 5G1.3(a); in others, it must

be concurrent, with credit given for time already served on the

prior sentence, U.S.S.G. § 5G1.3(b); and in cases falling in

neither category, the matter is confided to the judgment of the

-3-
sentencing judge, U.S.S.G. § 5G1.3(c). Here, the case falls

outside the first category; the main question--an issue of law

reviewed de novo--is whether it is within the second, which reads

as follows:

If subsection (a) does not apply, and a term

of imprisonment resulted from another offense

that is relevant conduct to the instant

offense of conviction under the provisions of

subsections (a)(1), (a)(2), or (a)(3) of

§ 1B1.3 (Relevant Conduct) and that was the

basis for an increase in the offense level for

the instant offense under Chapter Two (Offense

Conduct) or Chapter Three (Adjustments), the

sentence for the instant offense shall be

imposed as follows:

(1) the court shall adjust the sentence

for any period of imprisonment already served

on the undischarged term of imprisonment if

the court determines that such period of

imprisonment will not be credited to the

federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant

offense shall be imposed to run concurrently

to the remainder of the undischarged term of

imprisonment.1

U.S.S.G. § 5G1.3(b)(emphases added).

Here, of course, the district judge did specify that the

federal sentence would run concurrently with the remaining time on

the state sentence; but, having concluded that subsection (b) did

not apply, he did this as a matter of discretion. If subsection

The requirement in section 5G1.3(b)(1) that the Bureau of 1

Prisons will not itself credit the time served on the prior

sentence is met here because the BOP is statutorily forbidden from

giving Dunbar credit on the state sentence when the state has

already given him credit for that same sentence. See 18 U.S.C.

§ 3585(b); United States v. Ross, 219 F.3d 592, 594 (7th Cir.

2000).

-4-
(b) did apply, then whatever federal sentence the court ultimately

adopted, the district judge would have had to give Dunbar credit

for the one year already served.

The original offense level calculation of 23 took account

of some of the conduct that underlay the state sentence. In

particular, the conduct underlying the state conviction for driving

while intoxicated and causing serious bodily injury prompted the

four-level increase for the serious bodily harm; and, as conduct

undertaken in seeking to avoid capture for the federal offense, it

meets the definition of relevant conduct and satisfies the first

underlined condition quoted above. See U.S.S.G. § 1B1.3(a)(1).

However, section 5G1.3(b)(1) is triggered only when, in

the words of the second underlined condition, the relevant conduct

also "was the basis for an increase in the offense level for the

instant offense under Chapter Two (Offense Conduct) or Chapter

Three (Adjustments)." Here, in one sense it was, since the initial

level-23 calculation reflected an increase; but in another sense it

was not, because the level-23 calculation itself was superseded by

an obligatory further adjustment under Chapter 4 because Dunbar was

found to be a career offender regardless of the state convictions

stemming from the robbery.

The commentary and history of section 5G1.3(b), along

with the pertinent judicial precedent, confirm that its purpose was

to avoid or at least mitigate the risk of double punishment. E.g.,

-5-
Witte v. United States, 515 U.S. 389, 404-05 (1995). No such

double punishment is threatened where, as here, the relevant

conduct did not affect the governing final guideline calculation,

which itself furnished the starting point for the federal sentence.

Dunbar suggests that double punishment did occur by

positing that, if he had not been given the state sentence and the

car crash had been subsumed into a single federal sentence, he

would still have received only the 158-month sentence. On the

contrary, by deliberately choosing to run the federal sentence

concurrent with the last four years of the state sentence, but not

credit the year already served in state prison, the district judge

effectively indicated just what he thought was the appropriate time

for the combined federal and state crimes.

Dunbar says that the level-23 calculation was a

"necessary step" in the sentence; but this is so only in a

chronological sense. Yes, the district court had to read Chapters

Two and Three to see whether the range calculated under those

provisions was higher than the minimum applicable to Dunbar as a

career offender. But, as the range proved lower, it dropped

entirely out of the sentencing calculation and had no causative

effect on the federal range or sentence.

In other like situations, we have flatly rejected this

"necessary step" argument in concluding, as have other courts, that

one sentenced as a career offender is not entitled to apply for

-6-
resentencing based on a retroactive adjustment in the drug

guidelines. There, as here, the drug-guideline calculations had 2

been made but, as here, were superseded by career-offender

calculations and played no role in the defendant's ultimate

sentence.

Also in point is our decision in United States v.

Carrasco-de-Jesús, 589 F.3d 22 (1st Cir. 2009). There, the

defendant argued that section 5G1.3(b) applied to her because a

$101.60 check that was the subject of a state conviction had, she

contended, factored into a six-level increase of her federal

guidelines offense level under a provision calling for such an

increase when the loss attributable to the offense exceeds $30,000. 

Id. at 27.

However, the record indicated the aggregate loss exceeded

$50,000, so the $101.60 check made no difference in whether or not

the six-level increase applied, even if the check had in fact been

counted in the total loss amount. Id. at 28. We noted that "the

Sentencing Commission itself appears to regard the 'basis' language

as causal" and, "fail[ing] to see how an item of loss that has no

effect on the offense level can serve as the 'foundation' of that

See United States v. Caraballo, 552 F.3d 6, 9-10 (1st Cir. 2

2008) (career-offender sentence not "based on" crack cocaine

guideline), cert. denied, 129 S. Ct. 1929 (2009); accord United

States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009) (collecting

cases across circuits), cert. denied, 130 S. Ct. 2071 (2010).

-7-
level," we affirmed the district court's refusal to apply

section 5G1.3(b). Id. at 28-29.

Dunbar suggests that other courts have reached the

opposite conclusion. But his citations are to cases interpreting

the previous and substantively different version of section 5G1.3,

e.g., United States v. Lynch, 378 F.3d 445, 446 (5th Cir. 2004);

United States v. Rivers, 329 F.3d 119, 121-22 & n.2 (2d Cir. 2003),

or simply noting a district court's invocation of section 5G1.3(b)

without considering the interpretive issue now before us, e.g.,

United States v. Rivera, 189 F. App'x 933, 936 (11th Cir. 2006)

(unpublished); United States v. Fernandez, 436 F. Supp. 2d 983, 991

(E.D. Wis. 2006).

Affirmed.

-8-