                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4777


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

GREGORY BRUCE ADKINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:11-cr-00076-1)


Submitted:   February 15, 2013            Decided:   February 26, 2013


Before WILKINSON, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin, II, United States Attorney, Monica D. Coleman,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Gregory     Bruce    Adkins         appeals       from       his     108-month

sentence imposed pursuant to his guilty plea to possession of an

unregistered      machine     gun.         On   appeal,       he    asserts       that     the

district      court     erred        when       it     applied           the     kidnapping

cross-reference        in     calculating            Adkins’       Guidelines           range.

According      to      Adkins,       his        sentence       should           have      been

cross-referenced to the crime of wanton endangerment, as his

actions did not constitute kidnapping under West Virginia law

and   were   instead     merely      incidental         to    the    crime       of     wanton

endangerment. 1      We affirm.

             We review a sentence for abuse of discretion.                             Gall v.

United States, 552 U.S. 38, 51 (2007).                       The first step in this

review    requires     the   court    to    ensure      that       the    district       court

committed no significant procedural error.                           United States v.

Evans, 526 F.3d 155, 161 (4th Cir. 2008).                           Procedural errors

include “failing to calculate (or improperly calculating) the

Guidelines range.”          Gall, 552 U.S. at 51.              “[I]f a party repeats

on appeal a claim of procedural sentencing error . . . which it

has made before the district court, [this court] review[s] for

abuse of discretion” and will reverse unless we can conclude

      1
       Wanton endangerment is any “act with a firearm which
creates a substantial risk of death or serious bodily injury to
another.” W. Va. Code § 61-7-12 (2012).



                                            2
“that the error was harmless.”             United States v. Lynn, 592 F.3d

572, 576 (4th Cir. 2010).

            The    West     Virginia   Supreme       Court   has   noted   that

reasonable limitations must be placed upon the broad scope of

the kidnapping statute, W. Va. Code § 61-2-14a (2012), 2 because

otherwise    the    crime    of   kidnapping       could   “literally    overrun

several other crimes,” like robbery and rape, where detention of

the victim is a common occurrence.              Thus, the court adopted a

four element test to determine whether or not a kidnapping is

incidental to another crime: “(1) the length of time the victim

was held or moved; (2) the distance the victim was forced to

move; (3) the location and environment of the place the victim

was detained; and (4) the exposure of the victim to an increased

risk of harm.”       West Virginia v. Kitchen, 536 S.E.2d 488, 493

(W. Va. 2000).       In Kitchen, the victim had been restrained for

more than a half an hour, tried to escape, was in an unfamiliar

area, and was exposed to considerable harm while being driven

around in the middle of the night by a drunken man.                  The court

found    that,    under   these   facts,     the    forcible   restraint    and

transportation of the victim was not incidental to the robbery

of the victim and, instead, constituted kidnapping.                Id.


     2
       West Virginia’s kidnapping statute criminalizes unlawful
restraint. W. Va. Code § 61-2-14a.



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              Applying the Kitchen factors to this case, we conclude

that    Adkins’        kidnapping       was     not     incidental       to     wanton

endangerment.       Adkins held his wife Sabrina for a period of time

sufficient for him to assemble a gun and drive thirteen miles.

Sabrina was forcibly restrained both in her home and in the car

by Adkins’ use of a loaded machine gun and his repeated verbal

threats to kill her and/or force her to commit sexual favors.

In addition, Sabrina was driven around by Adkins, who had been

drinking      and   threatened      her    life       numerous    times,      and    she

eventually fled from the vehicle screaming that he was going to

kill her.      See also West Virginia v. Miller, 336 S.E.2d 910, 916

(W. Va. 1985) (holding that kidnapping was not incidental to

sexual assault where victim was in defendant’s custody for over

an hour, had been taken a consequential distance from home, and

had been exposed to an increased risk of harm).

              Although carrying a loaded machine gun while driving

under   the    influence       likely     constituted      wanton    endangerment,

Adkins’     actions     went    beyond        that    crime.       Therefore,        the

kidnapping was not an incidental crime.                    Accordingly, we find

that the district court correctly applied the kidnapping cross-

reference, and there was consequently no procedural error in

calculating     Adkins’     Guidelines         range.      As    such,     we   affirm

Adkins’ sentence.         We dispense with oral argument because the

facts   and    legal    contentions       are   adequately       presented      in   the

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materials   before   this   court   and   argument   would   not   aid   the

decisional process.

                                                                   AFFIRMED




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