                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 06-1006
                                 ________________

United States of America,                  *
                                           *
             Appellee,                     *
                                           *      Appeal from the United States
      v.                                   *      District Court for the Western
                                           *      District of Missouri.
Christopher J. Morris,                     *
                                           *
              Appellant.                   *

                                 ________________

                              Submitted: June 13, 2006
                                  Filed: August 15, 2006
                                ________________

Before SMITH, HEANEY and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Christopher J. Morris pled guilty to one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court
sentenced Morris to 188 months’ imprisonment. Morris appeals his sentence,
challenging the district court’s conclusion that Morris was not entitled under U.S.
Sentencing Guidelines Manual § 5G1.3(b) (2004) to credit for the time he already
served on a Missouri sentence for conduct relevant to the instant offense. For the
following reasons, we vacate the sentence and remand for resentencing.
I.    BACKGROUND


      On May 14, 2003, Morris burglarized a home in Lafayette County, Missouri,
and stole five firearms. Morris later pled guilty to burglary and receipt of stolen
property in Missouri state court (the “Lafayette County conviction”) and was
sentenced to seven years in state custody. Also on May 14, Morris pawned in
Independence, Missouri, a stolen Mossberg shotgun, two of the firearms stolen from
Lafayette County, and one other firearm. Morris’s possession of the Mossberg
shotgun is the subject of the indictment and conviction in this case.


       Morris was serving prison sentences for the Lafayette County conviction and
other Missouri convictions at the time of his indictment in this matter. After his
indictment, Morris was transferred to federal custody pursuant to a writ of habeas
corpus ad prosequendum. He entered a guilty plea without a plea agreement, and the
district court ordered the preparation of a presentence investigation report (“PSR”).
The PSR presented two sentencing guidelines calculations for Morris’s offense, both
of which resulted in an offense level of 31.


       First, the PSR calculated Morris’s offense level under Chapters Two and Three
of the sentencing guidelines. In doing so, the PSR recommended Chapter Two
adjustments based on relevant conduct, including the conduct underlying the Lafayette
County convictions. The PSR assigned Morris a base offense level of 24 pursuant to
U.S.S.G. § 2K2.1(a)(2). Two levels were added pursuant to § 2K2.1(b)(4) “because
the firearm had been stolen.” PSR ¶ 20. Four more levels were added pursuant to §
2K2.1(b)(1)(A) because Morris “was in possession of a total of 8 firearms on May 14
and 15, 2003,” which included firearms stolen in Lafayette County. PSR ¶ 21. Four
additional levels were added pursuant to § 2K2.1(b)(5) because Morris possessed two
firearms in connection with the felony offense of stealing the firearms in Lafayette
County. PSR ¶ 22. After a three-level reduction pursuant to U.S.S.G. § 3E1.1 for

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acceptance of responsibility, this calculation resulted in a total offense level of 31.
There were no objections to any of these calculations or underlying factual
determinations.


       Alternatively, the PSR recommended classifying Morris as an Armed Career
Criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. The PSR calculated a
Chapter Four offense level of 34 pursuant to § 4B1.4(b)(1) (“the offense level
applicable from Chapters Two and Three”) and a total offense level of 31 after a three-
level reduction for acceptance of responsibility.


       The PSR also noted a potential issue involving § 5G1.3, to which Morris
objected. Section 5G1.3(b) provides that if the conduct underlying Morris’s Lafayette
County conviction “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
. . . was the basis for an increase in the offense level for the instant offense under
Chapter Two (Offense Conduct) or Chapter Three (Adjustments),” then Morris’s
sentence for the federal offense “shall be imposed to run concurrently to the remainder
of the undischarged term of imprisonment” for his Lafayette County conviction, and
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.”
§ 5G1.3(b). However, if § 5G1.3(b) does not apply, then § 5G1.3(c) gives the
sentencing court discretion to impose a concurrent, partially concurrent, or
consecutive sentence “to achieve a reasonable punishment for the instant offense.”
§ 5G1.3(c).


       At sentencing, the district court overruled Morris’s objection to its refusal to
take into account the Lafayette County conviction as relevant conduct. The district
court explained that it was “not going to consider those [state] cases as relevant

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conduct” but “rather [was] going to treat Mr. Morris as an armed career criminal.” In
order to factor out the Lafayette County relevant conduct, the district court utilized §
4B1.4(b)(3)(B) to determine that Morris’s base offense level was 33 and that his total
offense level was 30 after a three-level reduction for acceptance of responsibility.
With a criminal history category of VI and a mandatory minimum sentence of 180
months, the resulting sentencing range was 180 to 210 months. The district court
considered the 18 U.S.C. § 3553 factors and sentenced Morris to 188 months’
imprisonment. Since it did not utilize the Lafayette County conviction as relevant
conduct in determining Morris’s guidelines range, the district court exercised its
discretion pursuant to § 5G1.3(c) to run the sentence concurrently to Morris’s term of
imprisonment for the Lafayette County conviction and refused to give Morris credit
for the time he already served on his Lafayette County conviction.1


       On appeal, Morris argues that the district court should have sentenced him at
the greatest offense level available under § 4B1.4, which in this case is the offense
level taking into account the relevant conduct underlying the Lafayette County
conviction, and that a proper application of the sentencing guidelines requires the
district court to grant him credit for time already served for his Lafayette County
conviction pursuant to § 5G1.3(b). We agree that the district court should have
considered the relevant conduct and sentenced Morris at offense level 31 and that §
5G1.3(b) applies.


II.   DISCUSSION


      We review the district court’s interpretation and application of the sentencing
guidelines de novo. United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.


      1
      The district court also ordered Morris’s sentence to run consecutively to three
other Missouri sentences and to run concurrently to one other Missouri sentence
imposed after Morris committed the instant offense.

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2006). “Sentencing under Booker requires, as a ‘critical starting point,’ that the
district court calculate the advisory guidelines sentencing range in the same manner
it would have calculated the range under the mandatory Guidelines regime.” United
States v. Thomas, 422 F.3d 665, 669 (8th Cir. 2005). Therefore, an incorrect
application of the guidelines “can require remand regardless of whether the resulting
sentence was otherwise reasonable.” United States v. Donelson, 450 F.3d 768, 774
(8th Cir. 2006).


       The district court calculated Morris’s offense level to be 33 as an armed career
criminal and his total offense level to be 30 after a three-point downward adjustment
for acceptance of responsibility. Morris contends that the district court violated
U.S.S.G. §§ 1B1.3 and 5G1.3(b) by excluding the relevant conduct underlying the
Lafayette County conviction from the guidelines calculation. He takes this position
because if the Lafayette County conviction is considered “relevant conduct . . . that
was the basis for an increase in the offense level for the instant offense under Chapter
Two (Offense Conduct) or Chapter Three (Adjustments),” § 5G1.3(b), then he is
entitled to credit for time already served on the Lafayette County conviction pursuant
to § 5G1.3(b). The Government asserts that the district court properly chose not to
consider the Lafayette County conviction in calculating Morris’s offense level based
on his status as an armed career criminal under § 4B1.4(b)(3)(B) and that § 5G1.3(b)
does not apply.


       We conclude that the district court erred in its application of the armed career
criminal guideline because § 4B1.4(b) requires the district court to choose the greatest
offense level among the listed options, which in this case is 31 under § 4B1.4(b)(1).
As a consequence, the district court applied the wrong guidelines sentencing range and
failed to adjust Morris’s sentence for the period of imprisonment already served for
his Lafayette County conviction, provided that “the court determines that such period
of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.”
§ 5G1.3(b).

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       The armed career criminal guideline, § 4B1.4, requires the district court to
choose the greatest of four possible offense level calculations.2 Two of the options,
§ 4B1.4(b)(2) and § 4B1.4(b)(3)(A), do not apply to Morris. Section 4B1.4(b)(2) is
inapplicable because Morris does not qualify as a career offender for the instant
offense. Section 4B1.4(b)(3)(A) applies only to the particular firearm upon which the
instant conviction is based. United States v. Mann, 315 F.3d 1054, 1056 (8th Cir.
2003) (contrasting § 4B1.4(b)(3)(A) with the § 2K2.1(b)(5) enhancement, which
applies to “any” firearm). In this case, “the firearm” is the Mossberg shotgun, the
subject of Morris’s federal conviction. The district court did not make a finding that
Morris used or possessed the Mossberg shotgun “in connection with” the burglary in
Lafayette County or any other crime of violence.



      2
       The armed career criminal guideline provides:

      (b)    The offense level for an armed career criminal is the greatest of:
             (1)   the offense level applicable from Chapters Two and Three;
                   or
             (2)   the offense level from § 4B1.1 (Career Offender) if
                   applicable; or
             (3)   (A)    34, if the defendant used or possessed the firearm or
                          ammunition in connection with either a crime of
                          violence, as defined in § 4B1.2(a), or a controlled
                          substance offense, as defined in § 4B1.2(b), or if the
                          firearm possessed by the defendant was of a type
                          described in 26 U.S.C. § 5845(a)*; or
                   (B)    33, otherwise.*
                   *If an adjustment from § 3E1.1 (Acceptance of
                   Responsibility) applies, decrease the offense level by the
                   number of levels corresponding to that adjustment.

§ 4B1.4(b) (emphasis added).

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       Morris’s offense level based upon the third option is 30 because §
4B1.4(b)(3)(B) specifies that the given offense level of 33 is to be reduced for
acceptance of responsibility, if applicable. The fourth option for the offense level for
an armed career criminal is “the offense level applicable from Chapters Two and
Three.” § 4B1.4(b)(1). When determining the offense level under Chapters Two and
Three, U.S.S.G. § 1B1.3 directs that it “shall be determined on the basis of” relevant
conduct. Therefore, the district court does not have the option of ignoring the
Lafayette County relevant conduct when calculating the offense level under §
4B1.4(b)(1). The PSR identified a total offense level of 31 using the Lafayette County
relevant conduct under Chapter Two and reducing three levels for acceptance of
responsibility under Chapter Three.3 Morris’s offense level pursuant to § 4B1.4(b)(1)
is 31.


      The district court was then required to choose the greatest offense level under
§ 4B1.4(b). Because the offense level of 31 calculated under § 4B1.4(b)(1) was the
greatest of the four options, the court should have determined the guidelines
sentencing range based on a total offense level of 31 instead of 30. The guideline
calculation under § 4B1.4(b)(1) is based on the adjustments under Chapters Two and
Three, which necessarily includes adjustments under § 2K2.1 based on the Lafayette
County conviction. Because the Lafayette County conviction was required to be taken
into account as relevant conduct to the instant offense and was the basis for an
increase in his offense level under § 2K2.1(b), § 5G1.3(b) applies to Morris. See §
5G1.3(b).



      3
       When the PSR calculated Morris’s offense level under the armed career
criminal guideline, it determined that the offense level was 34 under § 4B1.4(b)(1) and
then subsequently reduced the offense level by three for acceptance of responsibility.
Because the guideline for acceptance of responsibility, § 3E1.1, is located in Chapter
Three, and § 4B1.4(b)(1) requires the determination of the offense level applicable
from Chapters Two and Three, we find that the offense level under § 4B1.4(b)(1) is
31, not 34.

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       We remand for resentencing because we cannot say based on this record that
the combined errors of miscalculating the guidelines sentencing range and failing to
apply § 5G1.3(b) did not impact the ultimate sentence imposed by the district court.
See United States v. Lindquist, 421 F.3d 751, 757 (8th Cir. 2005) (explaining that
remand is not required where an error in the application of the guidelines was
harmless). On remand, the district court should apply the guidelines sentencing range
corresponding to offense level 31 and should grant Morris an adjustment of his
sentence for time served on his Missouri state conviction for burglary and receipt of
stolen property pursuant to § 5G1.3(b) “if the court determines that such period of
imprisonment will not be credited to the federal sentence by the Bureau of Prisons.”


III.   CONCLUSION


       For the reasons set forth above, we vacate the sentence and remand the case to
the district court for resentencing consistent with this opinion.


                       ______________________________




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