                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0570n.06
                             Filed: August 9, 2007

                                              No. 05-6884

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
        Plaintiff-Appellee,                          )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
CHARLES LAMONT JACKSON,                              )   EASTERN DISTRICT OF KENTUCKY
                                                     )
        Defendant-Appellant.                         )




        Before: MARTIN and ROGERS, Circuit Judges; and HOOD, District Judge.*
        ROGERS, Circuit Judge. Charles Lamont Jackson appeals his sentence for violation of

the terms of his supervised release. Jackson admitted to multiple violations of the terms of his

federal supervised release, including being convicted of a new felony charge in state court. Jackson

raises three issues on appeal. First, he asserts that the district court erred in believing that the policy

statement in § 7B1.3(f) of the sentencing Guidelines required it to impose a sentence for the violation

of his supervised release that is consecutive to the ten-year sentence Jackson is now serving in Ohio.

Second, he argues that the district court erred by failing to consider the factors enumerated in 18

U.S.C. § 3553(a). Finally, he claims that his counsel provided him with ineffective assistance in the


        *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.

                                                    1
No. 05-6884
USA v. Jackson

sentencing process, rendering his sentence invalid. Because the record reflects that the district court

did not recognize its discretion to impose a concurrent sentence, we reverse and remand for

resentencing.


        In January of 1999, subsequent to a plea of guilty to the charge of possession of marijuana

with the intent to distribute, the federal district court sentenced Jackson to six months of

imprisonment, followed by supervised release for two years. In April of the following year, his

probation officer petitioned the district court for a warrant for Jackson, alleging several violations

of the terms of Jackson’s supervised release and recommending that his supervised release be

revoked. In a later violation report, Jackson’s probation officer noted that by committing a state

felony while on supervised released, Jackson had committed a Grade B violation of his federal

supervised release. Based on that violation and Jackson’s criminal history, the probation officer

calculated Jackson’s Guideline range to be 8-14 months; the officer recommended that the court

sentence Jackson to 14 months’ imprisonment to be served consecutive to his current state sentence

of ten years.


        At an evidentiary hearing with the magistrate judge, and in later objections, Jackson admitted

that he violated various terms of his supervised release. During the hearing, Jackson’s attorney

stated that any sentence given for violation of supervised release must be imposed consecutively to

the state sentence he is currently serving, saying, “it’s my understanding under 7B1.3(f), any term

of imprisonment for this revocation has to run consecutive to any other sentence. Of course I’d like



                                                 -2-
No. 05-6884
USA v. Jackson

to argue that it would run concurrent, but if that’s the guideline and that’s the rules, that’s the rules.”

JA 52.


         Neither the court nor either party corrected defense counsel’s error in suggesting that the

policy statement requiring a consecutive sentence was mandatory. However, in his “Objection to

the Report and Recommendation,” Jackson stated that he “feels that anything [i.e., the sentence] he

receives should run concurrent with his Ohio sentence . . . .” JA 26. The magistrate judge’s

Supplemental Report and Recommendation responded to Jackson’s request for a concurrent sentence

in part by stating that “because of U.S.S.G. § 7B1.3(f), [Jackson’s] term of imprisonment must be

served consecutively to the state sentence.” JA 29 (emphasis added). The district court adopted the

findings of fact and law in the Report and Recommendation and Supplemental Report and

Recommendation and sentenced Jackson to a consecutive 14 month sentence. JA 37.


         Because it was Jackson’s counsel who told the district court that it did not have discretion

to enter a concurrent sentence, and because he did not raise any objection below, any error that may

have resulted from the court’s believing that it lacked discretion to impose a concurrent sentence is

subject to plain error review.1 United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)

(“Where, as here, a criminal defendant has failed to object below, he or she must demonstrate that


         1
         The Government argues that Jackson “waived” this issue, however, it appears that the
Government is using waiver as a synonym of forfeiture inasmuch as the Government never suggests
that Jackson is forgoing a known right. See United States v. Denkins, 367 F.3d 537, 543 (6th Cir.
2004) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. . . .
Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).”).

                                                   -3-
No. 05-6884
USA v. Jackson

the error was plain as defined by Fed.R.Crim.P. 52(b) before we may exercise our discretion to

correct the error.”). “To vacate a sentence for plain error, [the court] must find (1) an error that (2)

is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity or public

reputation of judicial proceedings.” United States v. Cousins, 469 F.3d 572, 580 (6th Cir. 2006).

The “Defendant bears the burden of proof on plain error review.” United States v. Robinson, 455

F.3d 602, 610 (6th Cir. 2006).


        The record clearly suggests that the district court erroneously believed that the policy

statement limited its discretion to impose a concurrent sentence. In the Supplemental Report and

Recommendation, the magistrate judge stated that, “because of U.S.S.G. § 7B1.3(f), that term of

imprisonment must be served consecutively to the state sentence.” JA 29 (emphasis added).

Furthermore, this error was “plain” because it is clear that application of the policy statement is

discretionary. United States v. Sparks, 19 F.3d 1099, 1100-01 (6th Cir. 1994) (remanding a sentence

where the district court clearly failed to recognize its discretion under § 7B1.3(f)); United States

v. Green, 157 F. App’x 853, 857-58 (6th Cir. 2005) (unpublished) (same).


        Because the plain error in this instance involved the court’s failure to recognize its discretion

under the Guidelines, prejudice is presumed for the purposes of appellate review. In United States

v. Barnett, 398 F.3d 516 (6th Cir. 2005), this court held that where a district court believed that the

Guidelines were mandatory there is a presumption of prejudice to the substantial rights of the

defendant, and a remand for resentencing is required. Id. at 527. Furthermore, “[t]his court has

previously held that treating the provisions of Chapter 7 as leaving a district court without discretion

                                                  -4-
No. 05-6884
USA v. Jackson

to impose a post-revocation sentence concurrently is reversible error requiring remand for

resentencing.” Green, 157 F. App’x at 858 (citing Sparks, 19 F.3d at 1101, and United States v.

Cohen, 965 F.2d 58 (6th Cir.1992)).


       Because the district court’s error in treating the policy statements as mandatory requires

remand for the imposition of a new sentence, we need not reach Jackson’s argument that the district

court erred in its application of the § 3553(a) factors in imposing this sentence. Similarly, inasmuch

as Jackson’s ineffective assistance of counsel argument relies only on his counsel’s performance in

relation to the sentencing process, that issue is moot.


       For the foregoing reasons we REVERSE Jackson’s post-revocation sentence and REMAND

for resentencing.




                                                -5-
