                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 27 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                        No. 09-30396

               Plaintiff - Appellee,              D.C. No. CR 09-13-M-DWM

   v.
                                                  MEMORANDUM *
 LAWRENCE JOHN SHEEHAN,

               Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                       Argued and Submitted October 5, 2010
                               Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and HOGAN, District Judge.**

        Lawrence John Sheehan (Appellant) appeals his 180-month sentence

imposed consecutively to a prior state-court sentence. Appellant contends that his

state-court incest conviction was the basis for an increase in the offense level for


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
             The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.

Page -1-
his federal offense, Transportation of a Minor in violation of 18 U.S.C. § 2433(a),

and that the district court therefore should have imposed a concurrent sentence

under Sentencing Guideline section 5G1.3(b).

                                    DISCUSSION

       Because the factual and procedural history are familiar and not disputed,

they will not be recounted here.

       1.    Standard of Review:

       Review of a district court's interpretation and application of the Guidelines is

de novo. United States v. Redman, 35 F.3d 437, 438 (9 th Cir. 1994).

       2.    U.S.S.G. § 5G1.3

       Sentencing Guideline section 5G1.3 applies when a defendant is subject to

one or more undischarged terms of imprisonment at the time of federal sentencing

and governs the imposition of concurrent or consecutive sentences.2 The district

       2
             Subsection (a) applies only if the offense was committed while a
             defendant was serving a term of imprisonment;
             Subsection (b) applies when "a term of imprisonment resulted from
             another offense that is relevant conduct to the instant offense of
             conviction . . . and that was the basis for an increase in the offense
             level for the instant offense," and results in the sentences being run
             concurrently; and
             Subsection (c) applies when neither (a) nor (b) applies, stating: "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

Page -2-
court found that Appellant's prior offense fit the first part of the section 5G1.3(b)

test as relevant conduct, but "the second aspect of it does not exist in this case,"

because the offense was not the basis for an increase in the offense level.

       This finding allowed the sentence to be concurrent, partially concurrent, or

consecutive, under U.S.S.G. § 5G1.3(c), and resulted in "a sentence of 15 years

that is consecutive to the state sentence with no credit for time served."

§5G1.3(c). Additionally, on October 30, 2009, the district court issued specific

findings with regard to its reasoning on the section 5G1.3 issue, stating that while

the prior state incest conviction was relevant conduct, it was not the basis for an

increase in Appellant's offense level for the federal transportation crime. "The

increase simply required the transporter to be a parent of the victim and thus was

satisfied by the offense of conviction itself, not the relevant conduct." See

U.S.S.G. § 2G2.1(b)(1) and (2).

       The district court's decision to impose a consecutive sentence therefore was

not an abuse of discretion.

AFFIRMED .




             offense." 2003 U.S.S.G. § 5G1.3(a), (b) and (c).

Page -3-
