Filed: Mar. 05, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4222 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY ALAN RINEHULTS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:06-cr-00078-HEH) Argued: January 30, 2008 Decided: March 5, 2008 Before MICHAEL, TRAXLER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. ARGUED: Robert James Wagner, OFFIC
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4222 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY ALAN RINEHULTS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:06-cr-00078-HEH) Argued: January 30, 2008 Decided: March 5, 2008 Before MICHAEL, TRAXLER, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. ARGUED: Robert James Wagner, OFFICE..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY ALAN RINEHULTS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:06-cr-00078-HEH)
Argued: January 30, 2008 Decided: March 5, 2008
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Elizabeth Catherine Wu,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S.
Nachmanoff, Federal Public Defender, Alexandria, Virginia, Charles
D. Lewis, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, Sapna Mirchandani, Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Chuck Rosenberg, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The main question presented by this appeal is whether
waiver of the right to appeal any sentence within the statutory
maximum on the grounds set forth in 18 U.S.C. § 3742 also waives
the right to appeal the determination under U.S.S.G. § 5G1.3 with
respect to when a new sentence begins to run for a defendant
serving an undischarged term of imprisonment. Gary Alan Rinehults,
who is serving a state sentence, contends that the district court
erred in imposing his federal sentence to run partially
concurrently under § 5G1.3(c) rather than wholly concurrently under
§ 5G1.3(b). We conclude that because 18 U.S.C. § 3742(a)(2)
provides the right to appeal a sentence “imposed as a result of an
incorrect application of the sentencing guidelines,” a waiver of
appeal rights under 18 U.S.C. § 3742 waives the right to appeal a
determination under U.S.S.G. § 5G1.3 as to when a sentence begins
to run in relation to an undischarged term.
I.
The parties stipulated to the following facts. In
October of 2004 Rinehults’s adopted minor daughter told
investigators from the Hanover County, Virginia, Sheriff’s Office
that Rinehults had regularly sexually abused her, beginning in
September of 2000 and continuing through October of 2004. The
daughter also reported that she had seen images of naked young
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people on a computer in their home. Based on this information, law
enforcement officers obtained a search warrant and executed it at
the Rinehults’s residence on October 29, 2004. They seized two
laptop computers, one desktop computer, thirty-nine computer
diskettes, one audiotape, and ten computer discs. Investigators
found on one of the computers a large number of still and moving
images depicting apparent child pornography. Many of the children
depicted were prepubescent.
On April 15, 2005, Rinehults pled guilty in the Circuit
Court of Hanover County to sodomy, rape, aggravated sexual battery,
animate object sexual penetration, and misdemeanor sexual battery
involving his adopted daughter. He was sentenced to approximately
sixteen years of prison time. At his state sentencing hearing,
Rinehults admitted that the images of child pornography that he had
viewed “came into [his] mind” at the time when he began to sexually
abuse his daughter.
On March 7, 2006, a federal grand jury charged Rinehults
with knowingly receiving an image of child pornography involving an
actual child in violation of 18 U.S.C. § 2252A(a)(2)(B) (count 1)
and with knowingly possessing an image of child pornography
depicting an actual child in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (count 2). Pursuant to a written plea agreement,
Rinehults pled guilty to count 1, and the government agreed not to
prosecute count 2. The parties also agreed that pursuant to
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U.S.S.G. § 5G1.3, the court should impose a sentence of which 51 to
64 months should run concurrently with Rinehults’s prior
undischarged term of imprisonment for the sexual abuse of his
daughter. In exchange for the concessions made by the government,
Rinehults waived “the right to appeal the conviction and any
sentence within the statutory maximum described above (or the
manner in which that sentence was determined) on the grounds set
forth in Title 18, United States Code, Section 3742 or on any
ground whatsoever.” J.A. 36 (emphasis added).
Rinehults’s presentence investigation report (PSR)
recommended a base offense level of seventeen pursuant to U.S.S.G.
§ 2G2.2(a) for his receipt of materials involving the sexual
exploitation of a minor. Rinehults’s base offense level was
increased fourteen levels for various specific offense
characteristics listed in § 2G2.2(b) that also relate to the sexual
exploitation of a minor. Rinehults received a three-level
reduction under § 3E1.1(a) and (b) for acceptance of
responsibility. His total offense level was 28. The PSR counted
Rinehults’s state conviction for sexual abuse in placing him in
criminal history category III. The offense level total of 28 and
the criminal history category III yielded a guideline range of 97
to 121 months’ imprisonment.
The PSR did not count the offenses underlying the prior
conviction as relevant conduct to the instant offense and therefore
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recommended that Rinehults’s sentence be imposed under U.S.S.G.
§ 5G1.3(c). Rinehults objected to this final recommendation,
arguing that his sentence should be imposed under § 5G1.3(b)(2).
U.S.S.G. § 5G1.3 provides, in relevant part:
Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment
. . .
(b) If . . . 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.
(c) (Policy Statement) In any other case involving an
undischarged term of imprisonment, the sentence for
the instant offense may be imposed to run
concurrently, partially concurrently, or
consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for
the instant offense.
At sentencing the district court overruled Rinehults’s objection to
the presentence report’s recommended application of § 5G1.3(c),
finding that the sexual abuse was not relevant conduct to the child
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pornography offense because the two offenses involved different
victims, different acts, and were not necessarily temporally
related.
The government advised the court that the plea
agreement’s sentencing recommendation of a partially concurrent,
partially consecutive sentence was designed to neutralize the five-
level increase Rinehults received for the prior state conviction,
thereby avoiding punishing him for the same behavior twice. The
district court sentenced Rinehults according to the recommendations
in the plea agreement, ordering 61 months of a 121-month sentence
to be served concurrently with the prior state sentence and 60
months to be served consecutively. Rinehults appeals, arguing that
the sexual abuse was relevant conduct to the federal offense and
therefore his federal sentence should have been imposed to run
concurrently with his undischarged state sentence. See U.S.S.G.
§ 5G1.3(b). The government argues that this appeal is precluded by
the plea agreement and, in the alternative, that the sexual abuse
crimes were not relevant conduct to the child pornography offense.
Rinehults also contends that his sentence was illegal because, when
combined with the state sentence, it exceeds the statutory maximum
for the federal offense. The government argues that state
sentences do not count towards federal statutory maximums.
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II.
We must first determine whether in his plea agreement
Rinehults waived his right to appeal the manner in which his
sentence was imposed. Because we conclude that he did waive this
right, we do not reach the relevant conduct question.
A defendant may make an express and unqualified waiver of
the statutory right to appeal his sentence if the waiver is
knowingly and voluntarily given. United States v. Brown, 232 F.3d
399, 403 (4th Cir. 2000). Rinehults does not challenge the
validity of his appeal waiver; rather, he challenges its scope.
Appealing whether a sentence is imposed concurrently or
consecutively, Rinehults claims, is distinct from appealing the
determination of the sentence itself.
As noted above, U.S.S.G. § 5G1.3(b) provides for a
sentence to be imposed concurrently with an undischarged sentence
if the prior offense involves relevant conduct to the instant
conviction. Rinehults’s claim is that the sexual abuse was
relevant conduct to the federal offense, and as such, the district
court erred in sentencing him under U.S.S.G. § 5G1.3(c) and
imposing a partially consecutive sentence rather than sentencing
him under § 5G1.3(b) and imposing a wholly concurrent sentence.
Yet Rinehults waived his right to appeal on the grounds listed in
18 U.S.C. § 3742. Section 3742(a)(2) provides for an appeal if the
sentence “was imposed as a result of an incorrect application of
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the sentencing guidelines.” Rinehults now wishes to appeal his
sentence on that very ground. We therefore conclude that the clear
terms of his plea agreement preclude his appeal.
In urging us to make a distinction between waiving an
appeal of the length of a sentence and waiving an appeal of the
method or timing of its implementation, Rinehults cites a line of
cases from the Second Circuit that make such a distinction. See,
e.g., United States v. Stearns, 479 F.3d 175, 178 (2d Cir. 2007);
United States v. Williams,
260 F.3d 160, 164-65 (2d Cir. 2001);
United States v. Brown,
232 F.3d 44, 48 (2d Cir. 2000); United
States v. Velasquez,
136 F.3d 921, 923 n.1 (2d Cir. 1998) (per
curium). The discussions of the plea agreements in these cases,
however, do not reveal that those agreements included a waiver of
the specific appeal right listed in 18 U.S.C. § 3742(a)(2). More
to the point, those cases do not discuss the effect of a waiver
under § 3742(a)(2) of the right to appeal a sentence “imposed as a
result of an incorrect application of the sentencing guidelines.”
As a result, the Second Circuit cases are not sufficiently specific
to assist Rinehults in his argument that he can appeal here on the
ground that the district court incorrectly applied U.S.S.G.
§ 5G1.3. Again, that ground for appeal is plainly waived in the
plea agreement.
Rinehults also argues that his plea agreement does not
bar this appeal because the district court imposed half of the 121-
9
month sentence for the receipt of child pornography to run
consecutively to the undischarged 16-year sentence for the state
sexual abuse conviction; therefore, his “punishment for the related
conduct exceeds the 20-year statutory maximum authorized under law”
in 18 U.S.C. § 2252A(a)(2)(B). Appellant’s Br. at 9. We find no
support, and Rinehults cites none, for the proposition that a prior
undischarged state sentence (in this case, for sexual abuse) counts
against a federal statutory maximum for a separate crime (in this
case, receipt of child pornography). We conclude that this
proposition is meritless. Rinehults was sentenced within the
statutory maximum, and his plea agreement bars an appeal of any
sentence within that maximum.
Because Rinehults waived the right to appeal the
application of the sentencing guidelines and a sentence imposed
within the statutory maximum, his appeal is
DISMISSED.
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