                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4222



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


GARY ALAN RINEHULTS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cr-00078-HEH)


Argued:   January 30, 2008                 Decided:   March 5, 2008


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Dismissed by unpublished per curiam opinion.


ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant.        Elizabeth Catherine Wu,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S.
Nachmanoff, Federal Public Defender, Alexandria, Virginia, Charles
D. Lewis, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, Sapna Mirchandani, Research
and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.       Chuck Rosenberg, United
States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               The main question presented by this appeal is whether

waiver of the right to appeal any sentence within the statutory

maximum on the grounds set forth in 18 U.S.C. § 3742 also waives

the right to appeal the determination under U.S.S.G. § 5G1.3 with

respect to when a new sentence begins to run for a defendant

serving an undischarged term of imprisonment. Gary Alan Rinehults,

who is serving a state sentence, contends that the district court

erred     in        imposing    his   federal       sentence   to   run   partially

concurrently under § 5G1.3(c) rather than wholly concurrently under

§ 5G1.3(b).            We conclude that because 18 U.S.C. § 3742(a)(2)

provides the right to appeal a sentence “imposed as a result of an

incorrect application of the sentencing guidelines,” a waiver of

appeal rights under 18 U.S.C. § 3742 waives the right to appeal a

determination under U.S.S.G. § 5G1.3 as to when a sentence begins

to run in relation to an undischarged term.



                                             I.

               The parties stipulated to the following facts.                   In

October        of     2004     Rinehults’s        adopted   minor   daughter   told

investigators from the Hanover County, Virginia, Sheriff’s Office

that Rinehults had regularly sexually abused her, beginning in

September of 2000 and continuing through October of 2004.                       The

daughter also reported that she had seen images of naked young


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people on a computer in their home.            Based on this information, law

enforcement officers obtained a search warrant and executed it at

the Rinehults’s residence on October 29, 2004.                  They seized two

laptop   computers,      one   desktop       computer,   thirty-nine        computer

diskettes, one audiotape, and ten computer discs.                    Investigators

found on one of the computers a large number of still and moving

images depicting apparent child pornography.              Many of the children

depicted were prepubescent.

             On April 15, 2005, Rinehults pled guilty in the Circuit

Court of Hanover County to sodomy, rape, aggravated sexual battery,

animate object sexual penetration, and misdemeanor sexual battery

involving his adopted daughter.          He was sentenced to approximately

sixteen years of prison time.            At his state sentencing hearing,

Rinehults admitted that the images of child pornography that he had

viewed “came into [his] mind” at the time when he began to sexually

abuse his daughter.

             On March 7, 2006, a federal grand jury charged Rinehults

with knowingly receiving an image of child pornography involving an

actual child in violation of 18 U.S.C. § 2252A(a)(2)(B) (count 1)

and   with   knowingly    possessing     an     image    of   child    pornography

depicting     an   actual      child     in      violation      of     18     U.S.C.

§ 2252A(a)(5)(B) (count 2).        Pursuant to a written plea agreement,

Rinehults pled guilty to count 1, and the government agreed not to

prosecute count 2.         The parties also agreed that pursuant to


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U.S.S.G. § 5G1.3, the court should impose a sentence of which 51 to

64   months    should         run   concurrently         with    Rinehults’s     prior

undischarged term of imprisonment for the sexual abuse of his

daughter.     In exchange for the concessions made by the government,

Rinehults waived “the right to appeal the conviction and any

sentence within the statutory maximum described above (or the

manner in which that sentence was determined) on the grounds set

forth in Title 18, United States Code, Section 3742 or on any

ground whatsoever.”           J.A. 36 (emphasis added).

            Rinehults’s         presentence       investigation        report    (PSR)

recommended a base offense level of seventeen pursuant to U.S.S.G.

§ 2G2.2(a) for his receipt of materials involving the sexual

exploitation of a minor.                 Rinehults’s base offense level was

increased      fourteen         levels     for        various     specific      offense

characteristics listed in § 2G2.2(b) that also relate to the sexual

exploitation     of   a       minor.      Rinehults      received      a   three-level

reduction     under       §     3E1.1(a)        and    (b)      for   acceptance    of

responsibility.       His total offense level was 28.                 The PSR counted

Rinehults’s state conviction for sexual abuse in placing him in

criminal history category III.              The offense level total of 28 and

the criminal history category III yielded a guideline range of 97

to 121 months’ imprisonment.

            The PSR did not count the offenses underlying the prior

conviction as relevant conduct to the instant offense and therefore


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recommended that Rinehults’s sentence be imposed under U.S.S.G.

§ 5G1.3(c).        Rinehults objected to this final recommendation,

arguing that his sentence should be imposed under § 5G1.3(b)(2).

             U.S.S.G. § 5G1.3 provides, in relevant part:

     Imposition of a Sentence on a Defendant Subject to an
     Undischarged Term of Imprisonment

     . . .

     (b)     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) and that was the basis for an
             increase in the offense level for the instant
             offense under Chapter Two (Offense Conduct) or
             Chapter Three (Adjustments), 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.

     (c)     (Policy Statement) In 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.

At sentencing the district court overruled Rinehults’s objection to

the presentence report’s recommended application of § 5G1.3(c),

finding that the sexual abuse was not relevant conduct to the child


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pornography offense because the two offenses involved different

victims,    different   acts,    and   were   not   necessarily    temporally

related.

            The   government     advised      the   court   that    the   plea

agreement’s sentencing recommendation of a partially concurrent,

partially consecutive sentence was designed to neutralize the five-

level increase Rinehults received for the prior state conviction,

thereby avoiding punishing him for the same behavior twice.                 The

district court sentenced Rinehults according to the recommendations

in the plea agreement, ordering 61 months of a 121-month sentence

to be served concurrently with the prior state sentence and 60

months to be served consecutively. Rinehults appeals, arguing that

the sexual abuse was relevant conduct to the federal offense and

therefore his federal sentence should have been imposed to run

concurrently with his undischarged state sentence.               See U.S.S.G.

§ 5G1.3(b). The government argues that this appeal is precluded by

the plea agreement and, in the alternative, that the sexual abuse

crimes were not relevant conduct to the child pornography offense.

Rinehults also contends that his sentence was illegal because, when

combined with the state sentence, it exceeds the statutory maximum

for   the   federal   offense.     The     government   argues     that   state

sentences do not count towards federal statutory maximums.




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                                    II.

            We must first determine whether in his plea agreement

Rinehults waived his right to appeal the manner in which his

sentence was imposed.       Because we conclude that he did waive this

right, we do not reach the relevant conduct question.

            A defendant may make an express and unqualified waiver of

the statutory right to appeal his sentence if the waiver is

knowingly and voluntarily given.            United States v. Brown, 232 F.3d

399, 403 (4th Cir. 2000).          Rinehults does not challenge the

validity of his appeal waiver; rather, he challenges its scope.

Appealing     whether   a    sentence        is     imposed    concurrently     or

consecutively, Rinehults claims, is distinct from appealing the

determination of the sentence itself.

            As noted above, U.S.S.G. § 5G1.3(b) provides for a

sentence to be imposed concurrently with an undischarged sentence

if the prior offense involves relevant conduct to the instant

conviction.      Rinehults’s   claim        is    that   the   sexual   abuse   was

relevant conduct to the federal offense, and as such, the district

court   erred   in   sentencing   him       under   U.S.S.G.     §   5G1.3(c)   and

imposing a partially consecutive sentence rather than sentencing

him under § 5G1.3(b) and imposing a wholly concurrent sentence.

Yet Rinehults waived his right to appeal on the grounds listed in

18 U.S.C. § 3742.     Section 3742(a)(2) provides for an appeal if the

sentence “was imposed as a result of an incorrect application of


                                        8
the sentencing guidelines.”       Rinehults now wishes to appeal his

sentence on that very ground. We therefore conclude that the clear

terms of his plea agreement preclude his appeal.

           In urging us to make a distinction between waiving an

appeal of the length of a sentence and waiving an appeal of the

method or timing of its implementation, Rinehults cites a line of

cases from the Second Circuit that make such a distinction.          See,

e.g., United States v. Stearns, 479 F.3d 175, 178 (2d Cir. 2007);

United States v. Williams, 260 F.3d 160, 164-65 (2d Cir. 2001);

United States v. Brown, 232 F.3d 44, 48 (2d Cir. 2000); United

States v. Velasquez, 136 F.3d 921, 923 n.1 (2d Cir. 1998) (per

curium).   The discussions of the plea agreements in these cases,

however, do not reveal that those agreements included a waiver of

the specific appeal right listed in 18 U.S.C. § 3742(a)(2).          More

to the point, those cases do not discuss the effect of a waiver

under § 3742(a)(2) of the right to appeal a sentence “imposed as a

result of an incorrect application of the sentencing guidelines.”

As a result, the Second Circuit cases are not sufficiently specific

to assist Rinehults in his argument that he can appeal here on the

ground   that   the   district   court   incorrectly   applied   U.S.S.G.

§ 5G1.3.   Again, that ground for appeal is plainly waived in the

plea agreement.

           Rinehults also argues that his plea agreement does not

bar this appeal because the district court imposed half of the 121-


                                    9
month   sentence    for   the   receipt    of   child      pornography    to   run

consecutively to the undischarged 16-year sentence for the state

sexual abuse conviction; therefore, his “punishment for the related

conduct exceeds the 20-year statutory maximum authorized under law”

in 18 U.S.C. § 2252A(a)(2)(B).        Appellant’s Br. at 9.            We find no

support, and Rinehults cites none, for the proposition that a prior

undischarged state sentence (in this case, for sexual abuse) counts

against a federal statutory maximum for a separate crime (in this

case,   receipt    of   child   pornography).         We   conclude    that    this

proposition is meritless.           Rinehults was sentenced within the

statutory maximum, and his plea agreement bars an appeal of any

sentence within that maximum.

           Because      Rinehults   waived      the   right    to     appeal   the

application of the sentencing guidelines and a sentence imposed

within the statutory maximum, his appeal is

                                                                       DISMISSED.




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