United States of America v. Gary Giovon Lynn

Richmond, VA - Criminal defense lawyer represented defendant with being a felon in possession of a firearm charge.

On January 4, 2016, Officer A.D. Gardner of the Winston-Salem Police

Department stopped a speeding vehicle occupied by Lynn along with two other

individuals. While standing near the vehicle, Officer Gardner smelled marijuana, and he

requested additional officers for assistance. When the other officers arrived, Officer

Gardner asked each of the occupants to exit the vehicle. After Officer Gardner frisked

Lynn, Gardner instructed him to stand by a guardrail with the driver of the vehicle. As

Officer Nicholas Powell was frisking another passenger, Lynn jumped into the driver's

side of the vehicle and Officer Powell followed, landing on top of him. The two

struggled over control of the vehicle, with Lynn putting the vehicle into drive, and

Officer Powell pulling the emergency brake. The vehicle rolled away, and Officer

Gardner pursued it. He heard a gunshot, and when he reached the vehicle, he saw Officer

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Powell lying on top of Lynn and holding Lynn's left hand, in which Lynn had a pistol

pointed at Officer Powell. Officer Powell had suffered gunshot wounds to his arms and

chest. Lynn had also suffered a gunshot wound, although Officer Powell had not fired

his weapon during the struggle.

Lynn was arrested and charged in state court with attempted first-degree murder,

possession of a firearm by a felon, and fleeing or eluding arrest with a motor vehicle.

While Lynn was detained in state custody, he was indicted on a federal charge of being a

felon in possession of a firearm, stemming from the same conduct as the state charges.

Lynn was obtained by the district court on a writ of habeas corpus ad prosequendum

while his state charges were pending, and he eventually pleaded guilty to the federal

firearms charge.

At Lynn's federal sentencing hearing on February 28, 2017, he and Officer Powell

both testified about what had occurred in the vehicle. Officer Powell stated that after he

had been able to bring the vehicle to a stop, Lynn dove between the front seats, and as

Officer Powell had turned to face Lynn, he felt gun shots hit him. On the other hand,

Lynn testified that he and Officer Powell had struggled over possession of the firearm,

and it went off accidentally during the struggle. The district court found that Officer

Powell's testimony was credible while Lynn's was not, and it determined that a sentence

of 120 months' imprisonment —the statutory maximum—was appropriate.

The court also heard argument as to whether this sentence should run concurrently

with or consecutive to Lynn's future anticipated state sentence. Because Lynn was in

primary state custody, that state sentence would be served in its entirety before he entered

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the federal prison system. The district court stated that it would be "terribly difficult” for

it to calculate what portion, if any, of Lynn's sentence should run concurrently with his

anticipated state sentence in light of the variety of state charges he faced, along with the

dispute as to the facts surrounding the shooting. J.A. 153. The court explained:

[L]et's say that a state court jury finds beyond a reasonable doubt . . . that

there was a struggle and this constitutes some kind of aggravated assault.

I'm not sure I would want this sentence to be imposed to run concurrently

based on the facts that I found.

On the other hand, if there's an attempted second degree murder

conviction and some 288-month sentence is imposed, then I think, in

fairness, the circumstances might merit some overlapping consideration,

but I just don't know at this point.

J.A. 154. The court also suggested that, in light of its uncertainty regarding the extent to

which its sentence should run concurrently with the anticipated state sentence, the state

court could take the federal sentence into account in fashioning its sentence, and Lynn

could also request the Bureau of Prisons (BOP) to designate the state prison as his place

of confinement, thus effectively running his federal sentence concurrently with the state

sentence. Ultimately, the court stated:

I am not able to make a determination as to how much of this sentence

should be imposed to run concurrently with the state court prosecution that

is now pending. . . . Therefore, at this time I will decline to make a finding

with respect to running any part of this sentence concurrently to any

sentence imposed in the state court.



J.A. 159.

Thereafter, on May 4, 2017, Lynn pleaded guilty in North Carolina Superior Court

to assault with a deadly weapon with intent to kill, inflicting serious bodily injury,

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possession of a firearm by a felon, and fleeing or eluding arrest with a motor vehicle.

The state court imposed a total sentence of 104 to 137 months' imprisonment.

II.

A.

Before resolving the issue that was the subject of supplemental briefing and oral

argument, we can easily dispose of the question raised in the Anders brief.

We review a defendant's sentence "under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007). Under the Gall standard, a

sentence is reviewed for both procedural and substantive reasonableness. Id. at 51. In

determining procedural reasonableness, we consider, among other things, whether the

court properly determined the Sentencing Guidelines range, considered the 18 U.S.C. §

3553(a) factors, and sufficiently explained the selected sentence. Id. at 49–51.

We review the factual findings underlying a district court's application of a

Guidelines cross-reference for clear error and the court's legal conclusions de novo.

United States v. Ashford, 718 F.3d 377, 380, 383–84 (4th Cir. 2013). "In the event of a

conviction for illegal possession of a firearm, USSG § 2K2.1(c) authorizes a district court

to substitute the offense level for any criminal offense that the defendant committed or

attempted to commit in connection with the possession of the firearm.” Id. at 381. Here,

the district court found that Lynn committed attempted murder with the firearm at issue.

Sentencing Guideline § 2A2.l(a) provides for a base offense level of 33 if the attempted

murder would have constituted first-degree murder; otherwise, the offense level is 27.

"[S]econd-degree murder simply requires proof of malice aforethought, which may be

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established by evidence of conduct which is reckless and wanton and a gross deviation

from a reasonable standard of care, of such a nature that a jury is warranted in inferring

that defendant was aware of a serious risk of death or serious bodily harm.” Ashford, 718

F.3d at 384 (internal quotation marks, citation, and alterations omitted).

We conclude that the district court did not err in finding that the murder crossreference applied. The district court based its ruling on finding that the victim's

testimony was credible and that Lynn's testimony was not.

[W]hen a trial judge's finding is based on his decision to credit the

testimony of one of two or more witnesses, each of whom has told a

coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be

clear error.

United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (internal quotation marks and

citation omitted). Moreover, ballistic evidence indicated that multiple shots were fired

from Lynn's firearm and that more would have been fired had it not malfunctioned. The

district court's decision not to credit Lynn's testimony is likewise supported by the

record—the firing of multiple shots is arguably inconsistent with Lynn's explanation that

the shooting was an accident.

B.

Relying on Setser v. United States, 566 U.S. 231 (2012), Lynn contends that the

district court erred in declining to run its sentence concurrently, in whole or in part, with

the yet-to-be-imposed state sentence. In light of the now-imposed state sentence, he

seeks a remand for reconsideration of that issue by the district court.

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In Setser, noting that sentencing judges "have discretion to select whether the

sentences they impose will run concurrently or consecutively with respect to other

sentences that they impose, or that have been imposed in other proceedings,” id. at 236,

the Court held that 18 U.S.C. § 3584(a) allows judges to impose a federal sentence

concurrently or consecutively to an anticipated, but unimposed, state sentence, id. at 236–

39.

The relevant Sentencing Guideline, added after Setser by USSG amendment 787,

effective November 1, 2014, provides that if "a state term of imprisonment is anticipated

to result from another offense that is relevant conduct to the instant offense of

conviction . . . , the sentence for the instant offense shall be imposed to run concurrently

to the anticipated term of imprisonment.” USSG § 5G1.3(c). There is no question but

that Lynn's state charges were relevant conduct to his federal conviction. However,

because the Guidelines are advisory, a district court is not obligated to impose a

concurrent sentence pursuant to USSG § 5G1.3. United States v. Nania, 724 F.3d 824,

830 (7th Cir. 2013). Rather, the district court is required to consider the 18 U.S.C. §

3553(a) factors in determining whether to run sentences consecutively or concurrently.

18 U.S.C. § 3584(b).

Here the district court provided a thorough explanation of the sentence. The court

found that Lynn's offense conduct was extremely serious. The court then explained that

it would not order its sentence to run concurrently with the anticipated state sentence in

light of this seriousness, remarking that a lengthy term of imprisonment was necessary in

this case. The court recognized its discretion to order the sentence to run concurrently,

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but simply declined to exercise its discretion after considering the required factors. Thus,

we discern no abuse of discretion in the district court's decision. See United States v.

Hall, 825 F.3d 373, 375–76 (8th Cir. 2016) (upholding decision not to run sentence

concurrent to anticipated state sentence based on district court's consideration of the §

3553(a) factors and its explanation that the possibility of a relatively short state sentence

that would result in an inappropriate period of imprisonment).

Lynn argues that by declining to order the sentence to run concurrently, the district

court treaded on the separation-of-powers issue outlined in Setser. See 566 U.S. at 242–

43. In holding that 18 U.S.C. § 3584(a) allows a district court to impose a federal

sentence concurrently or consecutively to an anticipated state sentence, the Court in

Setser rejected the parties' argument that when a future state sentence is anticipated, the

BOP should decide after the federal sentence has been imposed whether it runs

concurrently with or consecutive to the state sentence, based upon its authority granted

under 18 U.S.C. § 3621(b).

1

The Court rejected this argument in part out of concern that

it would leave sentencing in the hands of "the same Department of Justice that conducts

the prosecution.” Setser, 566 U.S. at 242. Instead, the Court determined that in the first

instance, the district court, rather than the BOP, should decide whether a federal sentence

runs concurrently with or consecutive to an anticipated state sentence. Id. at 242–43.

However, recognizing an exception to this determination, the Court stated that "a district

1

That statute provides that the BOP "may designate any available penal or

correctional facility . . ., whether maintained by the Federal Government or otherwise . . .,

that the Bureau determines to be appropriate and suitable.” 18 U.S.C. § 3621(b).

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court should exercise the power to impose anticipatory consecutive (or concurrent)

sentences intelligently. In some situations, a district court may have inadequate

information and may forbear, but in other situations, that will not be the case.” Id. at 242

n.6.

Lynn's argument requires us to consider the boundaries of this exception—in what

situations does a district court's lack of information permit it to decline to order its

sentence to run concurrently with an anticipated state sentence? To be sure, these

situations will be limited. When a state sentence is anticipated, the district court will

normally lack definite information about that sentence, and if this alone were sufficient to

permit the district court to forbear, the exception would swallow the rule. Thus, in most

cases, the district court should decide whether its sentence will run concurrently with or

consecutive to an anticipated state sentence involving relevant conduct. But as pointed

out by the Sentencing Commission with regard to USSG § 5G1.3, "[d]etermining

whether, and how, to use this discretion will depend on the adequacy of the information

available.” USSG Amend. 776 (Nov. 1, 2013).

It is clear that Lynn's case was not routine. First, the conduct at issue was

extremely serious. As the district court stated, "this is . . . one of the most, if not the

most, serious forms of a 922(g)(1) offense. The only thing more serious is a shooting in

which an individual is actually killed.” J.A. 158. Further, the variety of state charges

against Lynn, along with his dispute as to the facts surrounding the shooting—in

particular, his testimony that the shooting was accidental—made it possible for his

anticipated state sentence to range from relatively short to over double his federal

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sentence. The district court considered this possibility and the effect it would have on

any concurrent sentence it might order, ultimately determining that the uncertainty it

created prevented the court from accomplishing its proper sentencing objectives.

Of course, we know by now the sentence imposed on Lynn by the state court. But

it was not unreasonable at the time of imposing sentence for the district court to have

justified doubts as to the scope of that state sentence. As noted by the Court in Setser, the

fact that the later state sentence may be unexpected, "does not establish that the District

Court abused its discretion by imposing an unreasonable sentence.” 566 U.S. at 244. The

district court attempted to exercise its power to impose a concurrent or consecutive

sentence intelligently, but, for the reasons discussed above, it lacked adequate

information to do so. Accordingly, the district court did not err in declining to run its

sentence concurrently with the anticipated state sentence.2

2 Shortly before oral argument, the government submitted additional authority

pursuant to Federal Rule of Appellate Procedure 28(j) and Local Rule 28(e), arguing that

when Lynn agreed that his state court sentence "shall run consecutively to any other

sentence the defendant is now subject to,” Lynn waived the issues he raises on appeal,

and any error by the district court must be disregarded. We disagree.

Lynn's agreement regarding his state court sentence has no effect on his federal

sentence. As previously noted, Lynn was in primary state custody when he was

sentenced on the federal charge, and as a result, he will serve his state sentence in its

entirety before he serves his federal sentence. "In our American system of dual

sovereignty, each sovereign—whether the Federal Government or a State—is responsible

for the administration of its own criminal justice system.” Setser, 566 U.S. at 241

(internal quotation marks, citation, and alterations omitted). "If a prisoner like [Lynn]

starts in state custody, serves his state sentence, and then moves to federal custody, it will

always be the Federal Government . . . that decides whether he will receive credit for the

time served in state custody.” Id. Thus, Lynn's state court sentence cannot run

consecutively to his federal sentence, and the state court cannot dictate that his federal

(Continued)

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Our dissenting colleague parts company with us based upon the contention that the

district court violated its procedural duty by failing to expressly accept or reject the

advisory language of § 5G1.3(c). But the court satisfied its procedural duty when it

considered the Guideline and fully explained its rationale for declining to exercise its

discretion

For the reasons given above, we find that the district court’s explanation

given in this case was sufficient, and as authorized by Setser.



AFFIRMED