United States v. Dominic Lindsey, 969 F.3d 136

Background

Defendant Dominic Lindsey pled guilty to being a felon in possession of a firearm and to possession with intent to distribute following a July 18, 2017 traffic stop that uncovered a loaded 9mm, an extended magazine, and 233.3 grams of marijuana.
Lindsey had three prior state arrests within the year before the federal arrest (Nov. 2, 2016; Apr. 6, 2017; June 16, 2017) involving varying quantities of marijuana, occasional controlled substances, and at least one earlier firearm discovery.
State charges from some prior incidents were pending at federal sentencing (one later resulted in a short jail sentence; another charge was later dismissed).
At sentencing the district court imposed concurrent federal terms for the July 18 conduct but ordered the federal sentence to run consecutively to any future state sentences arising from the earlier state charges, finding those earlier charges unrelated.
Lindsey did not object at sentencing to the specific prospect of consecutiveness to future state sentences, appealed, and this panel—after the Supreme Court’s decision in Davis—reviewed the claim for plain error and affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred under U.S.S.G. §5G1.3(b)–(c) by ordering federal sentence consecutive to anticipated state sentences for earlier charges	Lindsey: earlier state charges were "relevant conduct" to the federal offense, so §5G1.3(b)/(c) require (or recommend) concurrency	Government: §5G1.3(b) inapplicable (no undischarged term); §5G1.3(c) not triggered because prior offenses are not fully relevant conduct and commentary directs use of (d) for partial relevance	No plain error. §5G1.3(b) inapplicable; district court reasonably concluded §5G1.3(c) did not require concurrency and permissibly exercised discretion under §5G1.3(d) if applicable; affirmed
Whether the prior state incidents qualify as "same course of conduct" (relevant conduct) under §1B1.3 considering similarity, regularity, and temporal proximity	Lindsey: repeated vehicle arrests with marijuana (and a firearm present in at least two incidents) within one year show a single course of conduct	Government: important differences in quantities, contexts (sleeping alone v. stopped with passengers), locations, substances, and no evidence of common source or accomplices negate unitary course	Held: Not clear/obvious error to conclude they were unrelated. Similarity weak, regularity at best faint, temporal proximity present but insufficient to establish same course of conduct
Whether the claim is reviewable under plain error after Davis and, if so, whether error was plain	Lindsey: challenges unpreserved; relies on appellate review for plain error	Government: no clear or obvious error; district court acted within discretion	Court applied post-Davis plain-error framework and concluded any error was not clear and obvious and did not affect substantial rights; affirmed

Key Cases Cited

Davis v. United States, 140 S. Ct. 1060 (U.S. 2020) (clarified plain-error review where facts at sentencing are involved)
Puckett v. United States, 556 U.S. 129 (U.S. 2009) (standard for plain-error review)
Rosales-Mireles v. United States, 138 S. Ct. 1897 (U.S. 2018) (discretion to correct plain error only when it affects fairness, integrity, or public reputation of proceedings)
Setser v. United States, 566 U.S. 231 (U.S. 2012) (district courts may anticipate state sentences and choose concurrency or consecutiveness)
United States v. Lopez, 923 F.2d 47 (5th Cir. 1991) (prior Fifth Circuit rule on factual questions at sentencing)
United States v. Ortiz, 613 F.3d 550 (5th Cir. 2010) (definition of relevant conduct for drug and gun offenses)
United States v. Rhine, 583 F.3d 878 (5th Cir. 2009) (same-course-of-conduct analysis factors: similarity, regularity, temporal proximity)
United States v. Ocana, 204 F.3d 585 (5th Cir. 2000) (temporal proximity benchmark for same course of conduct)