United States v. Gary Giovon Lynn
912 F.3d 212
| 4th Cir. | 2019Background
- Lynn (a felon) was stopped by police; a struggle over a gun in the vehicle resulted in Officer Powell being shot and Lynn being shot; Lynn was arrested and charged in state court (including attempted murder) and later indicted federally for being a felon in possession of a firearm.
- Lynn pleaded guilty to the federal § 922(g)(1) charge; at federal sentencing the court found Officer Powell credible, applied a murder cross-reference under the Guidelines, and sentenced Lynn to 120 months (statutory maximum).
- At the federal sentencing the court declined to decide whether the federal sentence should run concurrent with an anticipated but not-yet-imposed state sentence, citing uncertainty about the eventual state sentence and factual disputes about the shooting.
- Lynn later pleaded guilty in state court and received a 104–137 month state sentence, which he will serve first because he was in primary state custody; he appealed the federal sentence arguing among other things that the district court erred by not ordering concurrency under USSG § 5G1.3(c).
- The Fourth Circuit affirmed: it upheld the cross-reference to attempted murder (finding no clear error in credibility findings and supporting ballistic evidence) and held the district court did not abuse its discretion in declining to order concurrent time for the anticipated state sentence after considering 18 U.S.C. § 3553(a) factors and the uncertainty at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly applied the Sentencing Guidelines cross‑reference to attempted murder (USSG §§ 2K2.1(c)(1)(A), 2A2.1) | Lynn argued the cross‑reference was improper because the shooting was accidental as he testified | Government argued the court reasonably credited officer testimony and ballistic evidence supporting attempted murder conduct | Affirmed: district court did not clearly err in crediting officer and applying the murder cross‑reference |
| Whether the district court erred by refusing to order the federal sentence to run concurrently with an anticipated (not-yet-imposed) state sentence under USSG § 5G1.3(c) and Setser | Lynn argued Setser permits district courts to order concurrency with anticipated state sentences and § 5G1.3(c) directs concurrent imposition when state term is relevant conduct; court should have ordered concurrency or remanded | Government argued district court properly exercised discretion after considering § 3553(a) and § 5G1.3(c) is advisory; court permissibly declined in light of factual uncertainty and sentencing objectives | Affirmed: district court did not abuse discretion in declining to order concurrency given serious conduct, uncertainty about state sentence, and consideration of § 3553(a) factors |
| Whether Lynn waived federal concurrency arguments by agreeing in state court that his state sentence would run consecutively to other sentences | Government argued Lynn’s state-court concession waived the issue | Lynn argued a state-court stipulation cannot bind the federal court’s sentencing discretion | Held: No waiver — state court language cannot control federal sentence; dual sovereignty means federal court retains decision-making authority |
| Procedural duty: whether the district court was required to expressly accept or reject the advisory recommendation of USSG § 5G1.3(c) (concurring/dissenting view) | N/A (dissent): § 5G1.3(c) is a pertinent policy statement; district court must decide to accept or reject it, not punt | Majority: district court adequately considered the Guideline and explained refusal to order concurrency | Concurrence/Dissent: Judge Floyd would reverse — district court improperly left the § 5G1.3(c) decision to the BOP; Majority affirmed as within discretion |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural framework for counsel filing a no‑merit brief on appeal)
- Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion standard for reviewing sentences and requirement to consider § 3553(a) factors)
- Setser v. United States, 566 U.S. 231 (2012) (district courts may order federal sentences concurrent with anticipated state sentences)
- United States v. Ashford, 718 F.3d 377 (4th Cir. 2013) (permitting Guidelines cross‑reference under § 2K2.1(c) to conduct committed or attempted in connection with firearm possession)
- United States v. Hall, 664 F.3d 456 (4th Cir. 2012) (credibility findings based on choosing between coherent witness accounts are rarely clear error)
- United States v. Olmeda, 894 F.3d 89 (2d Cir. 2018) (recognizing § 5G1.3(c) as pertinent policy; courts must take it into account)