                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4439


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

MANUEL RODRIGUEZ, a/k/a Manuel Rodriguez-Castro, a/k/a Manuel Carmen
Rodriguez,

                    Defendant - Appellant.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:16-cr-00419-TDS-1)


Submitted: February 8, 2018                                  Decided: February 21, 2018


Before KEENAN, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Mireille P. Clough, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
Carolina, for Appellant. Sandra J. Hairston, Acting United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Manuel Rodriguez appeals his sentence after pleading guilty to illegal reentry of a

deported felon under 8 U.S.C. § 1326(a), (b)(1) (2012). The district court sentenced him

in the middle of his Sentencing Guidelines range to 13 months in prison, to run

consecutively to any other term of imprisonment that may be imposed, and three years of

supervised release. On appeal, Rodriguez contends that his pending North Carolina

charges were relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3(a)

(2016), and the district court erred by not imposing his sentence to run concurrently with

his anticipated North Carolina sentence under USSG § 5G1.3(c). We affirm.

      “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks and citation

omitted). “Pursuant to this standard, we review the district court’s legal conclusions de

novo and factual findings for clear error.” Id. (citation omitted). “Whether a crime

constitutes ‘relevant conduct’ under the Guidelines is a factual question we review for

clear error.” United States v. Robinson, 744 F.3d 293, 300 (4th Cir. 2014) (citation

omitted). It is unnecessary to vacate a sentence based on an asserted error under the

Sentencing Guidelines “if we can determine from the record that the asserted error is

harmless.” United States v. McDonald, 850 F.3d 640, 643 (4th Cir.) (citation omitted),

cert. denied, 138 S. Ct. 208 (2017). “To apply this ‘assumed error harmlessness inquiry’

we require ‘(1) knowledge that the district court would have reached the same result even

if it had decided the guidelines issue the other way and (2) a determination that the

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sentence would be reasonable even if the guidelines issue had been decided in the

defendant’s favor.’” Id. (citation omitted).

       We have reviewed the record and conclude that the district court did not err or

abuse its discretion by imposing Rodriguez’s sentence to run consecutively to his

anticipated state sentence. At his sentencing, Rodriguez had pending state charges for

felony second degree kidnapping, felony attempted second degree forcible rape, and

misdemeanor sexual battery. Rodriguez contends these offenses were relevant conduct

under USSG § 1B1.3(a), because they allegedly occurred during the commission of the

offense of conviction, i.e., after he illegally reentered the country; and they would have

resulted in a specific offense characteristic increase under USSG § 2L1.2(b)(3) if he had

been convicted. Therefore, he argues that the district court erred by not running his

sentence concurrently with his anticipated state sentence under USSG § 5G1.3(c).

       We disagree. A district court has authority to order that a federal sentence be

consecutive to an anticipated state sentence that has not yet been imposed. Setser v.

United States, 566 U.S. 231, 233 (2012); United States v. Obey, 790 F.3d 545, 548-49

(4th Cir. 2015). In Amendment 787, the Sentencing Commission determined that the

concurrent sentence benefits of USSG § 5G1.3 “should be available not only in cases in

which the state sentence has already been imposed at the time of federal sentencing (as

subsection (b) provides), but also in cases in which the state sentence is anticipated but

has not yet been imposed, as long as the other criteria in subsection (b) are satisfied (i.e.,

the state offense is relevant conduct under subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3,

and subsection (a) of § 5G1.3 does not apply).” USSG app. C (U.S. Sentencing Comm’n

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2016). Thus, both subsections (b) and (c) apply only to offenses that are relevant conduct

under subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3, omitting those offenses which may

be used to determine “any other information specified in the applicable guideline” under

subsection (a)(4) of § 1B1.3. Moreover, commentary to § 5G1.3 explicitly notes that

relevant conduct under § 1B1.3(a)(1), (a)(2), or (a)(3) does not include any offense “for

which the defendant received an increase pursuant to USSG § 2L1.2 (Unlawfully

Entering or Remaining in the United States).” USSG § 5G1.3 cmt. n.2(B).

      Rodriguez argues that his pending state offense charges are relevant conduct to his

reentry offense, because they allegedly occurred after he illegally reentered the United

States, and illegal reentry is a continuing offense. However, the fact that an unrelated

offense occurs during the timeframe of another offense does not automatically convert it

into “relevant conduct.” Robinson, 744 F.3d at 301; see also United States v. Orozco-

Sanchez, 814 F.3d 844, 851 (7th Cir. 2016) (holding that illegal reentry offense was not

relevant conduct to drug offense supporting a concurrent sentence under § 5G1.3(b),

rejecting defendant’s argument that illegal reentry was prerequisite to drug offense). In

addition, even when an offense is relevant conduct, and § 5G1.3(c) applies, “the district

court would not be mandated to impose a concurrent sentence” due to the advisory nature

of the Sentencing Guidelines. Orozco-Sanchez, 814 F.3d at 850 (citations omitted).

      In this case, the district court decided that even assuming Rodriguez’s pending

state charges would be relevant conduct under the Guidelines, the court would disagree

with the recommendation to run the sentence concurrently. The court explained that it

did not have enough information about how much time he would serve on the state

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offenses, and the court wanted to make sure that he had a separate punishment for the

illegal reentry, because he had committed the offense after having been deported twice,

and his prior conviction and sentence for illegal reentry did not deter him from reentering

yet again. We find no error or abuse of discretion in the district court’s rulings.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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