United States of America v. Alfonso Devon McKenzie

United States Court of Appeals
For the Eighth Circuit
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No. 22-1954
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United States of America
Plaintiff - Appellee
v.
Alfonso Devon McKenzie
Defendant - Appellant -
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: January 13, 2023
Filed: August 17, 2023
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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MELLOY, Circuit Judge.
The district court sentenced Alfonso Devon McKenzie to 30 months of
imprisonment after McKenzie pled guilty to failure to register as a sex offender in
violation of 18 U.S.C. § 2250(a). McKenzie appeals arguing the district court
incorrectly applied U.S.S.G. § 5G1.3(b) by failing to account for time he had served
in Florida for a related state offense. Because the district court did not reduce the

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sentence after finding the time served in Florida was for relevant conduct, we vacate
and remand for clarification.
I.
In 2005, Florida sentenced McKenzie to a crime that required him to register
as a sex offender. In August 2020, McKenzie was arrested in Florida for failing to
comply with sex offender reporting requirements. He did not stay in custody after
being arrested. In January 2021, McKenzie moved to South Dakota. He failed to
register with South Dakota. Instead, he falsely re-registered as a sex offender in
Florida. That February, South Dakota police arrested McKenzie for several state law
crimes, including failure to register as a sex offender. On March 2, South Dakota
officials notified Florida of the arrest. On March 9, South Dakota dismissed the
charges, but McKenzie remained in the custody of South Dakota pursuant to an
arrest prior to request for extradition. On March 19, Florida arrested McKenzie for
failure to comply with sex offender reporting requirements. In July, a federal grand
jury in the District of South Dakota indicted McKenzie for failure to register as a sex
offender. In October, a Florida state court sentenced McKenzie to a combined 40
months for convictions related to the 2020 and 2021 failures to register.
In January 2022, McKenzie pled guilty to failure to register as a sex offender
in the District of South Dakota. The district court sentenced him to 30 months of
imprisonment. The district court set the sentence “to run concurrently with the
sentence imposed by [the Florida court].” The district court cited U.S.S.G.
§ 5G1.3(b)(2) as the reason for the sentence to run concurrently. McKenzie objected
to the sentence, saying U.S.S.G. § 5G1.3 required “a downward departure based on
the time that he has served in Florida that he will not get credit for against his federal
sentence.” The district court overruled the objection, “leav[ing] those matters to the
Bureau of Prisons.”

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II.
We review the application of U.S.S.G. § 5G1.3 de novo. United States v.
Winnick, 954 F.3d 1103, 1104 (8th Cir. 2020). Although sentencing guidelines
provisions typically make adjustments to a sentencing range, § 5G1.3 provides for a
change to the implementation of the total sentence of imprisonment.
Section 5G1.3(b) explains how to treat an undischarged term of imprisonment
which “resulted from another offense that is relevant conduct to the instant offense”
when “such period of imprisonment will not be credited to the federal sentence by
the Bureau of Prisons.” If a sentence is being reduced pursuant to § 5G1.3(b):
[T]he court should note on the Judgment in a Criminal Case Order (i)
the applicable subsection (e.g., § 5G1.3(b)); (ii) the amount of time by
which the sentence is being adjusted; (iii) the undischarged term of
imprisonment for which the adjustment is being given; and (iv) that the
sentence imposed is a sentence reduction pursuant to § 5G1.3(b) for a
period of imprisonment that will not be credited by the Bureau of
Prisons.
U.S.S.G. § 5G1.3 cmt. 2(C).
In Winnick this court laid out four steps for applying section 5G1.3:
(1) “determine whether any time spent in custody ‘resulted from . . . relevant conduct
to the instant offense of conviction’”; (2) adjust the sentence downward “[f]or time
already spent in custody for solely relevant conduct . . . unless the Bureau of Prisons
will otherwise credit it”; (3) determine “what to do with time spent in custody for
solely non-relevant conduct or a mixture of relevant and non-relevant conduct. At
this step, the district court has a choice about whether to give credit”; and (4) decide
whether to grant a discretional variance. Winnick, 954 F.3d at 1104–05 (citations
omitted).
For the first step, the district court found the actions underlying the Florida
conviction qualified as “relevant conduct.” For the second step, however, the district

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court did not adjust the sentence downward for the time spent in state custody prior
to the federal sentence. Rather, the court noted the Bureau of Prisons would calculate
any credit. We assume that the Bureau of Prisons will not credit an individual for
time already served on a state prison sentence. See id., 954 F.3d at 1105, n.2. In such
instances, the district court should note the reduction in the judgment to comply with
U.S.S.G. § 5G1.3.
The government argues the district court had discretion under the third step in
Winnick because the time served in Florida was not for “solely relevant conduct.”
Instead, the government argues, the time served in Florida was for a mixture of
conduct that occurred in both 2020 and 2021. The record does not support the
government’s argument. Here, the district court specified that the Florida sentence
was for relevant conduct. A district court only has discretion under Winnick step
three if there is a finding that the time served in state prison was not for “solely
relevant conduct.”
Because the application of § 5G1.3 did not comply with Winnick, we are left
“uncertain about exactly how the court arrived at [McKenzie’s] final sentence.” Id.
at 1106. Therefore, the error was not harmless. Unlike other cases, we do not “have
a clear record that the judge intended to impose the same sentence” that would have
been imposed with a correct application of § 5G1.3. United States v. Henson, 550
F.3d 739, 742 (8th Cir. 2008). To the contrary, the district court found the issue
material to sentencing, noting “[w]ith the sentence that the defendant is looking at
in Florida, really the only really important factor here is whether that sentence in
South Dakota should be concurrent or consecutive . . . .” Additionally, the district
court stated that McKenzie “has been in custody about 175 days, pursuant to the
writ” without referencing the seven months McKenzie spent in custody prior to his
Florida sentence.
We decline to reach the issue of reasonableness. United States v. Mashek, 406
F.3d 1012, 1017 (8th Cir. 2005) (“If the sentence was imposed as the result of an
incorrect application of the guidelines, we will remand for resentencing as required

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by [18 U.S.C. § 3742(a)] without reaching the reasonableness of the resulting
sentence in light of § 3553(a).”).
III.
We remand for the district court to clarify the sentence in light of U.S.S.G.
§ 5G1.3.
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