NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 19-2731 ____________

UNITED STATES OF AMERICA

v.

WILLIAM MORRISON, Appellant ____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-17-cr-00143-005) District Judge: Honorable Joy Flowers Conti ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 22, 2020

Before: HARDIMAN, RENDELL and FISHER, Circuit Judges.

(Filed: September 2, 2020) ____________

OPINION* ____________

FISHER, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. William Morrison appeals the District Court’s decision not to adjust his sentence

to account for time served on an undischarged term of imprisonment under § 5G1.3(b)(1)

of the United States Sentencing Guidelines. We will affirm.1

Morrison argues that the District Court erroneously relied upon Application Note

2(A) of § 5G1.3 because, under the interpretive inquiry demanded by Kisor v. Wilkie, §

5G1.3(b) is not “genuinely ambiguous.”2 This argument raises two threshold questions:

whether it was preserved, and, if not, the appropriate standard of review. Morrison

objected to the District Court’s tentative findings on the relevant-conduct issue on June

26, 2019—the same day the Supreme Court decided Kisor. His only argument was that,

under Stinson v. United States, the application note “is inconsistent with, or a plainly

erroneous reading of,”3 U.S.S.G. §§ 1B1.3(a)(2) and 5G1.3(b). Morrison’s counsel

reiterated this argument at the sentencing hearing, held two weeks later on July 10. No

mention was made of Kisor. Because Morrison therefore could have, but did not, raise his

Kisor argument before the District Court, the Government contends it was waived under

United States v. Joseph.4 We agree with the Government that the argument was not

1 The District Court had jurisdiction under

. We have jurisdiction under

. 2

(2019). 3

(1993). 4

(3d Cir. 2013) (holding “that for parties to preserve an argument for appeal, they must have raised the same argument in the District Court—merely raising an issue that encompasses the appellate argument” results in waiver of the argument (emphases omitted)).

2 preserved,5 but we will review for plain error.6

Under that standard, even assuming that the District Court erred in failing to

consider the effect of Kisor on its interpretation of the Guidelines and that the error was

plain, Morrison’s argument still fails because the error did not “affect[] [his] substantial

rights.”7 There is not, in our view, “a reasonable probability that, but for [the District

Court’s error], the result of the proceeding would have been different.”8 Application Note

2(A) puts into words what is already clear from the text of the Guideline: that all of the

prior offense for which the defendant has an undischarged term of imprisonment must

constitute relevant conduct for purposes of § 5G1.3(b), and that anything short of that is

covered by § 5G1.3(d).

Subsection (b) provides that the undischarged term must have “resulted from

another offense that is relevant conduct to the instant offense of conviction.”9 An

“offense” is “[a] breach of law,” or, alternatively, “[a]n illegal act or omission; a

punishable crime.”10 It is axiomatic that to be convicted of a crime, a defendant must be

5 See United States v. Jones,

(3d Cir. 2016) (emphasizing, in a sentencing appeal, “the responsibility of litigants to raise not just all ‘issues’ but all ‘arguments’ in district court” (quoting Joseph,

)). 6 See Davis v. United States,

(2020) (per curiam); United States v. Dahl,

(3d Cir. 2016); United States v. Stinson,

(3d Cir. 2013). 7 United States v. Olano,

(1993) (quoting Fed. R. Crim. P. 52(b)). 8 United States v. Dominguez Benitez,

(2004) (quoting United States v. Bagley,

(1985) (opinion of Blackmun, J.)). 9 U.S.S.G. § 5G1.3(b). 10 Offense, Oxford English Dictionary (3d ed. 2004); see also Offense, Black’s Law

3 found “guilty of every element of the crime with which he is charged, beyond a

reasonable doubt.”11 It follows that for an “offense” of which a defendant has been

convicted and sentenced to be relevant conduct to an instant offense—and thus for §

5G1.3(b) to apply—the actions satisfying every element of the prior offense must be

relevant conduct.12

Subsection (d) in turn provides for all situations where the entire prior offense is

not relevant conduct to the instant offense. “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.”13

Thus, as relevant here, when subsection (b) does not apply, the sentencing court may still,

as under § 5G1.3(b)(2), impose a sentence to run concurrently to the undischarged term,

but it may not also adjust the instant sentence for time served on the prior term, as it is

obliged to do under § 5G1.3(b)(1). “[T]he Guidelines,” the Supreme Court has said,

“explicitly contemplate the possibility of separate prosecutions involving the same or

overlapping relevant conduct.”14

Dictionary (11th ed. 2019) (defining “offense” as “[a] violation of the law; a crime”). 11 United States v. Gaudin,

(1995). 12 The Guidelines’ commentary defines “offense” as “the offense of conviction and all relevant conduct under § 1B1.3 . . . unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1 cmt. n.1(I). To the extent our interpretation differs from this definition, we think this is one of those instances where the meaning is “clear from the context.” 13 U.S.S.G. § 5G1.3(d) (emphasis added). 14 Witte v. United States,

(1995) (emphasis added) (internal quotation

4 In sum, even assuming the District Court erred in not conducting a Kisor inquiry,

the error did not affect the outcome of Morrison’s proceeding. Reliance on Application

Note 2(A) produces the same result as a plain reading of the Guideline text: if—as the

District Court found—Morrison’s Ohio offense constituted only partly relevant conduct

to his Pennsylvania offense,15 then subsection (d) applied, and the best Morrison could

hope for is what he got—a concurrent running of the sentences.

By this same logic, we reject Morrison’s additional arguments. First, Application

Note 2(A) is not “inconsistent with, or a plainly erroneous reading of,”16 either § 5G1.3

or the relevant-conduct provisions of § 1B1.3(a)(1)-(3). Again, the application note

merely explains what is already clear from the text—that § 5G1.3(b) applies only when

the entire prior offense is relevant conduct to the instant offense. Second, because

Application Note 2(A) is consistent with the Guideline text, and because the District

Court made clear that it found Morrison’s Ohio offense to be only partly relevant

conduct, we reject, on any standard of review, Morrison’s argument that the application

note was “wholly inapplicable.”17

For the foregoing reasons, we will affirm the judgment of the District Court.

marks omitted). 15 Importantly, Morrison does not challenge the District Court’s factual finding on this matter. 16 Stinson,

. Because Morrison properly preserved his Stinson argument, our review of the District Court’s interpretation under that standard is plenary. United States v. Fountain,

(3d Cir. 2015). 17 Appellant’s Br. at 36.

5