United States of America v. Timothy Peter Kavanagh

United States Court of Appeals
For the Eighth Circuit
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No. 24-2930
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United States of America
Plaintiff - Appellee
v.
Timothy Peter Kavanagh
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: September 18, 2025
Filed: January 7, 2026
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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.
Timothy Kavanagh was convicted in district court of being a felon in
possession of a firearm following convictions in two separate state courts for a
related crime. The district court sentenced Kavanaugh to 151 months’ imprisonment
to run concurrent to any state sentence. The district court, however, did not reduce
Kavanagh’s federal sentence by the time he already served in state custody.

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Kavanagh now appeals on grounds that the district court did not properly apply the
Sentencing Guidelines. We reverse and remand for resentencing.
I. Background
Kavanagh, a convicted felon, along with an accomplice burgled a house in
Union County, Iowa, while the owners were away. The pair broke into a large gun
safe, stealing numerous firearms and much ammunition. They also stole the
homeowner’s vehicle from the garage after finding the keys in the house.
Deputies in Madison County identified the vehicle as stolen and initiated a
traffic stop. Kavanaugh, the driver, attempted to flee resulting in a chase. He did not
go far before he abandoned the vehicle and fled on foot until he was apprehended.
After Kavanagh’s arrest, deputies found 11 firearms taken from the Union County
burglary, 35 oxycodone pills, and a needle loaded with methamphetamine.
Kavanagh was convicted and sentenced for separate state offenses in both
Union and Madison Counties. In Union County, Kavanagh pleaded guilty to
burglary and second-degree theft and was sentenced to a total of 30 years’
imprisonment—two consecutive 15-year sentences. In Madison County, Kavanagh
pleaded guilty to eluding, possession of methamphetamines, and possession of
oxycodone and was sentenced to 11 years’ imprisonment to run consecutively to the
Union County sentence. Both counties dismissed unlawful-firearms-possession
charges leaving those offenses for federal prosecution.
After his state court sentencing, Kavanagh was indicted on a single count of
being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(8). He pleaded guilty to this offense without a written plea agreement. The
probation office’s presentence report (PSR) identified his sentencing range as 151
to 180 months.
At sentencing, Kavanagh asked the court to credit him the 17 months and 21
days that he had already served in custody for the state offenses given that they were

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relevant conduct. He also requested that his federal sentence run concurrently with
the state terms of imprisonment, pursuant to Sentencing Guideline § 5G1.3.
After considering the § 3553(a) factors, the district court agreed with the
PSR’s calculated range and imposed a sentence, in its words, “at the very bottom of
the [G]uidelines range” to run concurrent to the state court offenses, with three years’
supervised release following all sentences. R. Doc. 52, at 16. However, the district
court declined to reduce Kavanagh’s federal sentence based on the time that he
served in state custody. Specifically, the district court stated:
I’m not going to do that because I want to make sure there is some
additional punishment for the fact that this offense involved the
possession of firearms which wasn’t per se taken into account in the
state penalties, so you won’t get credit for time served, but it will be up
to the Bureau of Prisons how your time is measured from here on out.
Id. at 17. After declining to apply this portion of § 5G1.3, the district court sentenced
Kavanagh to 151 months’ imprisonment. Kavanagh now appeals his sentence.
II. Discussion
Did the district court properly apply § 5G1.3 when declining to credit
Kavanagh for his time served in state court when imposing his federal sentence?
“Whether the court applied this provision correctly is a question of law that we
review de novo.” United States v. Winnick, 954 F.3d 1103, 1104 (8th Cir. 2020).
When a federal defendant is subject to an undischarged term of imprisonment,
the Sentencing Guidelines direct district courts to (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”; and (4) decide whether to grant
a discretional variance. Id. at 1104–05 (citation modified). More succinctly, where

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“a term of imprisonment resulted from another offense that is relevant conduct to
the instant offense,” the district court “shall adjust the sentence for any period of
imprisonment already served on the undischarged term of imprisonment.” U.S.S.G.
§ 5G1.3(b)(1).
In Winnick, we emphasized that courts should apply § 5G1.3 and explain any
deviations from its imperative. There, instead of accounting for the appropriate
downward adjustment based on the time served in state court, the district court chose
to adjust the sentence based on the time served after the initiation of the federal case.
954 F.3d at 1104. The district court did not adjust based on the time served for
relevant conduct in state court but used a separate rule. Id. We reversed and
remanded, directing the court to apply § 5G1.3. Id. at 1106.
Later, in United States v. McKenzie, 79 F.4th 924 (8th Cir. 2023), we again
emphasized the importance of clarity when applying U.S.S.G. § 5G1.3. In McKenzie,
the district court was not aware of time the defendant spent in state custody for
relevant conduct and, therefore, did not adjust the sentence downward to account for
that time. Id. at 926. There, we reversed due to misapplication of U.S.S.G. § 5G1.3
under Winnick, which created uncertainty “about exactly how the court arrived at
[defendant’s] final sentence.” Id. at 927 (quoting Winnick, 954 F.3d at 1106).
Similarly, here, the district court did not apply the § 5G1.3 downward
adjustment and then use its discretion in imposing its sentence. The sentencing
record is unclear whether Kavanagh’s previous time spent in custody was for
relevant conduct, as Winnick requires. The district court treated the conduct as
relevant conduct in imposing a concurrent sentence, but when specifically asked to
give credit toward Kavanagh’s federal sentence for the time in state custody, the
district court stated, “I’m not going to do that.” R. Doc. 52, at 17. It then further
explained that it wanted to “make sure there is some additional punishment for the
fact that this offense involved the possession of firearms which wasn’t per se taken
into account in the state penalties.” Id. But after considering Kavanagh’s allocution,

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the district court stated that it sought to impose a sentence “at the very bottom of the
[G]uidelines range.” Id. at 16.
The court’s stated intent to sentence at the bottom of the Guidelines prioritized
the accuracy of its Guidelines calculation. Had the district court properly applied the
§ 5G1.3(b)(1) adjustment, the new sentencing range would be about 134 to 163
months, resulting in 17 fewer months of incarceration. See Mckenzie, 79 F.4th at
927.
This case differs from the pre-Winnick case, United States v. Carter, 652 F.3d
894 (8th Cir. 2011). In Carter, the district court recognized the downward
adjustment but ultimately “determined that a variance from the guidelines was
appropriate in light of other factors set forth in 18 U.S.C. § 3553(a).” Id. at 896.
While the district court here explained it wanted Kavanagh to incur some additional
punishment, it still should have recognized the § 5G1.3(b)(1) downward adjustment.
Section 5G1.3(b) requires sentencing courts to first apply the adjustment
where the convictions are for relevant conduct. See Winnick, 954 F.3d at 1106;
Mckenzie, 79 F.4th at 927. The district court has discretion whether to apply the
adjustment to actions that it finds are not relevant conduct or a combination of
relevant and non-relevant conduct. Winnick, 954 F.3d at 1104. But no such discretion
exists when contemplating an adjustment for time served resulting from relevant
conduct. Id. Had the district court determined that the state firearm-related conduct
was not relevant conduct, then it would have had discretion to decide whether to
credit Kavanagh for time served in state custody. Additionally, had the court
explicitly applied the adjustment for time served, it could have then still sentenced
him to the same term if the facts warranted the variance.
III. Conclusion
Accordingly, we reverse the district court’s sentence and remand for
resentencing consistent with this opinion.
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