                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3734
                         ___________________________

                             United States of America

                                       Plaintiff - Appellee

                                         v.

                               Paul Joseph Winnick

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                 ____________

                          Submitted: December 11, 2019
                                 Filed: April 1, 2020
                                 ____________

Before SMITH, Chief Judge, GRASZ and STRAS, Circuit Judges.
                              ____________

STRAS, Circuit Judge.

       Paul Winnick appeals his 336-month sentence for producing child
pornography. His main argument is that the district court failed to give him full
credit for the time he served on related state charges. See U.S.S.G. § 5G1.3. Because
we agree, we vacate and remand for resentencing.
                                         I.

      Winnick is a serial sex offender. About four years ago, he pleaded guilty in
three state-court cases to various charges arising out of the production and
possession of child pornography. The first case resulted in a 100-month prison
sentence for using three children from his neighborhood—called minors A, B, and
C in court documents—to produce child pornography. In the second case, he
received a concurrent 15-month sentence for possessing an illicit video of his
daughter. Finally, he was given a consecutive 45-month sentence in the third case
for possessing over 300 videos and photos containing child pornography.

       It was against this backdrop that the district court sentenced Winnick on
federal charges of producing child pornography depicting minors A, B, and C. The
district court initially calculated an unadjusted Guidelines sentence of 1,080 months
(the statutory maximum of 360 months on each individual count × 3 counts). 18
U.S.C. § 2251(e). After considering the statutory sentencing factors, see 18 U.S.C.
§ 3553(a), the court varied downward to 348 months. Winnick requested a
downward adjustment for the 36 months and 13 days that he had already spent in
custody on the state charges. The district court granted an adjustment, but only for
the 12 months he had served following “the initiation of his federal case.”

      Winnick claims that he should have received more. His position is that he
was entitled to a downward adjustment for the entire 36 months and 13 days that he
spent in custody. See U.S.S.G. § 5G1.3. The government’s position is that the
amount of the adjustment was totally up to the district court.

                                         II.

      The central issue on appeal is the size of the adjustment. The district court
purported to rely on U.S.S.G. § 5G1.3, which explains how to treat an undischarged
term of imprisonment when calculating a federal sentence. Whether the court

                                        -2-
applied this provision correctly is a question of law that we review de novo. See
United States v. Ardolf, 683 F.3d 894, 900 (8th Cir. 2012).

       Applying section 5G1.3 to an undischarged state sentence involves four steps.
The first step requires the district court to examine a defendant’s sentencing history
to determine whether any time spent in custody “resulted from . . . relevant conduct
to the instant offense of conviction.” U.S.S.G. § 5G1.3(b). If it did not, then no
adjustment is necessary. U.S.S.G. § 5G1.3 cmt. n.2(A); see United States v. Burch,
406 F.3d 1027, 1030 (8th Cir. 2005). If it did, then the court must move on to the
remaining steps. See U.S.S.G. § 1B1.3 (defining relevant conduct).

       In this case, there is no dispute about two points. The first is that the 100-
month sentence from the first state case was for relevant conduct. Winnick’s federal
prosecution involved the same acts with the same victims (minors A, B, and C) on
the same days. See U.S.S.G. § 1B1.3(a)(1) (stating that relevant conduct includes
“acts . . . that occurred during the commission of” the federal offense). The second
is that, by the time of his federal sentencing, he had already served 36 months and
13 days in custody for his state crimes.

       From there, the parties do not agree on much. The government’s position is
that the record is silent on “what sentences [Winnick] was serving when.” Oral Arg.
at 12:07–12:12. Winnick’s view, which is consistent with the information in the
presentence investigation report, is that: (1) during the first 15 months, he served
concurrent sentences in the first and second cases, only the former of which involved
relevant conduct; and (2) for the remaining 21 months and 13 days, he was serving
a sentence only in the first case.1 The district court, for its part, did not make any

      1
       We deny Winnick’s motion to file a supplemental brief, which raises a new
argument: whether the district court should have given him the full 36-month-and-
13-day adjustment to account for a delay in his federal prosecution. See United
States v. Owen, 854 F.3d 536, 541 n.5 (8th Cir. 2017) (explaining that issues not

                                         -3-
findings on the order in which Winnick served his state sentences. So on remand,
the court will need to sort out who is right.

       At the second step, the adjustments begin. For time already spent in custody
for solely relevant conduct, the sentence “shall” be adjusted downward, unless the
Bureau of Prisons will otherwise credit it. U.S.S.G. § 5G1.3(b)(1); see id. § 5G1.3
cmt. n.2(A) (noting that section 5G1.3(b) applies when “all of the prior offense is
relevant conduct” (emphasis added)). Here, assuming that Winnick will not receive
credit from the Bureau of Prisons2 and that the information in the presentence
investigation report is correct, he would be entitled under this step to a 21-month-
and-13-day downward adjustment in his federal sentence.

       The third step is to decide what to do with time spent in custody for solely
non-relevant conduct or a mixture of relevant and non-relevant conduct. At this step,
the district court has a choice about whether to give credit. See id. § 5G1.3(d);
United States v. Bauer, 626 F.3d 406, 408–09 (8th Cir. 2010). For Winnick, who
may have spent 15 months in custody for both cases 1 and 2, this means the district
court may, but is not required to, depart downward by some or all of the 15 months
to “achieve a reasonable punishment” for the federal offense. U.S.S.G. § 5G1.3 cmt.
n.4(D)–(E).

      The fourth and final step lies totally within the discretion of the district court.
After the calculations in section 5G1.3 are complete, a district court may vary



raised in a party’s opening brief are forfeited); Fed. R. App. P. 28(c) (prohibiting the
filing of post-reply briefs, except as permitted by the court).
      2
       We assume, because no one has argued otherwise, that the Bureau of Prisons
will not give credit for any of the time Winnick previously spent in prison, see
U.S.S.G. § 5G1.3(b)(1), but this is an issue for the district court to straighten out on
remand.
                                          -4-
upward or downward. See United States v. Carter, 652 F.3d 894, 896–97 (8th Cir.
2011). Only then does it arrive at the final sentence.

       The government suggests that the district court was simply exercising its
discretion when it limited Winnick’s adjustment to twelve months. Its theory is that,
even though it appears that the district court never correctly adjusted his sentence
downward at steps two and three, we should just assume that it did and that it varied
upward from there. This is too big of a leap for us to make.

       The reason, of course, is that the district court said that it was applying section
5G1.3, but then what it did bore little resemblance to what section 5G1.3 requires.
Rather than making the adjustments it should have, it simply announced a limitation
that is nowhere to be found in the text of section 5G1.3 or its application notes:
Winnick could only receive credit for the time he served after the initiation of his
federal case. This leaves us uncertain about exactly how the court arrived at
Winnick’s final sentence. Under these circumstances, a remand is necessary to allow
the district court to clarify its reasoning.

                                           III.

       Winnick challenges his sentence on other grounds, but none has merit. He
first claims that he should not have received an enhancement for engaging in a
“pattern” of sexual exploitation. U.S.S.G. § 4B1.5(b). As defense counsel conceded
before the district court, however, the enhancement applies under the facts of this
case because Winnick created child pornography on multiple, separate occasions.
See United States v. Bevins, 848 F.3d 835, 839 (8th Cir. 2017). He also argues that
the district court ignored several mitigating factors, but our review of the record
reveals otherwise. The district court “consider[ed] [Winnick’s] mitigation
arguments” and “even lowered” his sentence. United States v. Kay, 717 F.3d 659,



                                           -5-
663–64 (8th Cir. 2013). He is not entitled to anything more. See United States v.
Bridges, 569 F.3d 374, 379 (8th Cir. 2009). 3

                                         IV.

      We remand for the district court to reconsider Winnick’s sentence in light of
U.S.S.G. § 5G1.3.
                     ______________________________




      3
       Winnick also challenges the substantive reasonableness of his sentence.
Given that his adjusted sentence may be different on remand and that the district
court may then vary upward or downward from it, it is premature to address the
substantive reasonableness of a sentence that he has yet to receive. See United States
v. Robinson, 639 F.3d 489, 498 n.4 (8th Cir. 2011).
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