                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 29 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-10430

                Plaintiff-Appellee,             D.C. No.
                                                4:14-cr-01069-JAS-BGM-1
 v.

ROGELIO SANCHEZ MOLINAR,                        MEMORANDUM *

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    James Alan Soto, District Judge, Presiding

                    Argued and Submitted September 14, 2016
                        Resubmitted November 29, 2017
                            San Francisco, California

Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.

      Rogelio Sanchez Molinar pled guilty to two counts of possession of

ammunition by a prohibited possessor and now challenges his sentence. We

resolve his challenge to the district court’s application of an enhancement based on

a prior conviction for a crime of violence. Molinar also contends that the district

court erred by failing to conduct the “relevant conduct” analysis required by U.S.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sentencing Guidelines Section 5G1.3 to determine whether his federal sentence

should have run concurrently with his state sentence for trafficking in stolen

property. He further contends that his sentence was substantively unreasonable

because the district court did not credit the time he had served on his state court

sentence. We affirm.

      Contrary to Molinar’s assertions, “relevant conduct” for the purposes of

Section 5G1.3(b) does not generally mean all conduct that was part of a common

scheme. That section defines “relevant conduct” through reference to Section

1B1.3(a)(1)-(a)(3). See U.S. SENTENCING GUIDELINES MANUAL § 5G1.3(b) (U.S.

SENTENCING COMM’N 2014). The conduct underlying Molinar’s state conviction,

which was based on his sale of other types of stolen property, does not qualify as

relevant conduct to his ammunition possession offenses under any of these

definitions.

      Section 1B1.3(a)(2)’s “same course of conduct or common scheme”

language only comes into play if Section 3D1.2(d) would require grouping of

multiple counts. Section 3D1.2 provides that “counts [that] involv[e] substantially

the same harm shall be grouped together.” Although this section would require

grouping trafficking in stolen property offenses and would also require grouping

firearms and ammunitions offenses, there is no indication that these two types of

offenses would be grouped together under 3D1.2(d) because the types of harm are


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not the same. See United States v. Nanthanseng, 221 F.3d 1082, 1084 (9th Cir.

2000) (holding that the district court did not err by refusing to group “closely

related” drug and firearm crimes on the basis of differing societal harms). Because

the offenses would not be grouped under Section 3D1.2(d), the state offense is not

relevant conduct under Section 1B1.3(a)(2). And because it does not qualify under

Section 1B1.3(a)(1) or (a)(3) either, Section 5G1.3 does not apply. As a result, the

district court did not err.

       Molinar’s argument that his sentence is substantively unreasonable also

fails. The court observed that Molinar had “engaged in a pattern . . . over ten years

of criminal activity that is very significant and involved victims and that frankly

made [Molinar] a danger to the community,” that “[t]he record shows [Molinar

has] five prior felony convictions” and a “whole host of other misdemeanors,” and

that selling ammunition and possessing ammunition is a serious offense (and that it

was not the first time Molinar had committed this offense). Taking these factors

into consideration, the district court did not abuse its discretion in imposing

Molinar’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Nor is it

clear that the court intended to credit Molinar more than the two months remaining

on his state court sentence.

       AFFIRMED.




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