                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4688


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

SHAWN LAMONT MCCLAIN, a/k/a Gucci,

                    Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia,
at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:16-cr-00016-FPS-JES-1)


Submitted: August 25, 2017                                        Decided: August 31, 2017


Before WILKINSON, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elgine Heceta McArdle, McARDLE LAW OFFICES, Wheeling, West Virginia, for
Appellant. Betsy Steinfeld Jividen, Acting United States Attorney, Randolph J. Bernard,
David J. Perri, Assistant United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Shawn Lamont McClain pled guilty, without the benefit of a plea agreement, to

conspiracy to distribute heroin and fentanyl (Count 1), in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), 846 (2012), distribution of heroin and fentanyl within 1000 feet

of a protected location (Count 6), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

distribution of heroin and fentanyl (Count 7), in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C) (collectively, “2016 Convictions”).    The district court imposed concurrent

sentences of 95 months’ imprisonment and ordered that such sentence run consecutively

to the sentence imposed on a 2014 federal drug conviction (“2014 Conviction”). On

appeal, McClain argues that: (1) the imposition of a consecutive sentence violated the

Double Jeopardy Clause, as the sentencing court, when crafting the sentence for the 2014

Conviction, took into account some of the conduct at issue in Count 6 of the 2016

Convictions; and (2) the district court erred in failing to account for 18 U.S.C. § 3584

(2012), and U.S. Sentencing Guidelines Manual § 5G1.3 (2015), when imposing the

sentence on the 2016 Convictions to be consecutive to the sentence imposed on the 2014

Conviction. We affirm.

      McClain’s first argument—that consideration of the conduct in Count 6 during

sentencing for the 2014 Conviction and a subsequent conviction in 2016 based on that

same conduct constitutes a double jeopardy violation—is squarely foreclosed by Supreme

Court precedent. See Witte v. United States, 515 U.S. 389, 399 (1995) (holding “that use

of evidence of related criminal conduct to enhance a defendant’s sentence for a separate

crime within the authorized statutory limits does not constitute punishment for that

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conduct within the meaning of the Double Jeopardy Clause”). McClain has not offered

any reasoned distinction between his case and Witte, and, consequently, his convictions

and sentence do not implicate the Double Jeopardy Clause.

      As to McClain’s second argument on appeal, “we review a district court’s decision

to order consecutive or concurrent sentences for abuse of discretion . . . [but] review de

novo whether the district court properly applied the relevant sentencing guideline to the

defendant.” United States v. Puckett, 61 F.3d 1092, 1097 (4th Cir. 1995). Multiple

sentences “may run concurrently or consecutively, except that the terms may not run

consecutively for an attempt and for another offense that was the sole objective of the

attempt.” 18 U.S.C. § 3584(a).     The statute mandates that “[t]he [district] court, in

determining whether the terms imposed are to be ordered to run concurrently or

consecutively, shall consider, as to each offense for which a term of imprisonment is

being imposed, the factors set forth in [18 U.S.C. §] 3553(a).” 18 U.S.C. § 3584(b).

      The Guidelines provide that:

      If . . . a term of imprisonment resulted from another offense that is relevant
      conduct to the instant offense of conviction under the provisions of
      subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the
      sentence for the instant offense shall be imposed as follows:

             (1) the court shall adjust the sentence for any period of imprisonment
             already served on the undischarged term of imprisonment if the
             court determines that such period of imprisonment will not be
             credited to the federal sentence by the Bureau of Prisons; and

             (2) the sentence for the instant offense shall be imposed to run
             concurrently to the remainder of the undischarged term of
             imprisonment.



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USSG § 5G1.3(b). The Guidelines also state that, “[i]n any other case involving an

undischarged term of imprisonment, the sentence for the instant offense may be imposed

to run concurrently, partially concurrently, or consecutively to the prior undischarged

term of imprisonment to achieve a reasonable punishment for the instant offense.” USSG

§ 5G1.3(d), p.s.; See United States v. Rouse, 362 F.3d 256, 262 (4th Cir. 2004)

(discussing § 5G1.3(b)’s purpose and stating that “the provision applies—i.e., that a prior

offense has been fully taken into account in the determination of the offense level for the

instant offense—at least when conduct underlying a prior conviction is considered as

relevant conduct” (internal quotation marks omitted)).

       Here, the 2014 Conviction stemmed from McClain’s conduct on January 20, 2013,

when officers arrested McClain for possession of heroin, which he admitted he intended

to sell. At the sentencing on the 2014 Conviction, the district court noted, among other

factors, that McClain had continued to traffic in heroin, cited his subsequent arrest on

Count 6 (of the 2016 charges) as evidence for that assertion, and concluded that confining

him would end his drug activities. Thus, the district court considered the conduct at the

center of Count 6 of McClain’s 2016 Convictions when imposing the sentence for the

2014 Conviction.

       However, as counsel conceded during sentencing for the 2016 Convictions, the

conduct underlying Count 6 was not “relevant conduct” for the 2014 Conviction. See

USSG §§ 1B1.3, 3D1.2(d). Furthermore, the court in the 2014 Conviction did not treat

the Count 6 conduct as if it had been a part of the offense of the 2014 Conviction The



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district court merely considered the conduct in Count 6 as to a relevant § 3553(a) factor,

namely, the need to protect the public.

       Similarly, McClain’s conduct underlying the 2014 Conviction did not qualify as

relevant conduct for his 2016 Convictions. The earlier conduct did not occur during the

course of the criminal conspiracy charged in Count 1, and the district court did not

account for the earlier conduct when determining the amount of heroin attributable to

McClain at the 2016 sentencing. Nor are the crimes sufficiently connected in other ways

to qualify as closely related conduct. See United States v. McVey, 752 F.3d 606, 610 (4th

Cir. 2014) (setting forth factors courts should consider); see also United States v. Wall,

180 F.3d 641, 646 (5th Cir. 1999). (“In short, the two sets of offenses do not share many

similarities other than that they both involved [heroin].”). We therefore conclude the

conduct relating to McClain’s 2014 Conviction does not qualify as “relevant conduct” for

the 2016 Convictions and that § 5G1.3(b)(2) does not apply. See Rouse, 362 F.3d at 263.

       Because USSG § 5G1.3(b) does not apply, the Guidelines provide that the district

court may impose consecutive sentences “to achieve a reasonable punishment for the

instant offense.” USSG § 5G1.3(d), p.s.; see USSG § 5G1.3, cmt. n.4(A) (outlining

factors courts examine in fashioning sentence). Here, the district court considered several

§ 3553(a) factors with regard to the 2016 Convictions and considered all of the

circumstances of McClain’s federal sentence for his 2014 conviction. Thus, we conclude

that the court adequately complied with the requirements of USSG § 5G1.3(d).




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      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 this court and argument would not aid the decisional process.

                                                                             AFFIRMED




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