                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0445n.06
                                                                                               FILED
                                             No. 09-5729
                                                                                          Jul 01, 2011
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                   )
                                                            )        ON APPEAL FROM THE
        Plaintiff-Appellee,                                 )        UNITED STATES DISTRICT
                                                            )        COURT FOR THE
v.                                                          )        WESTERN DISTRICT OF
                                                            )        TENNESSEE
TERRY KITCHEN,                                              )
                                                            )                            OPINION
        Defendant-Appellant.




BEFORE:         McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

        McKeague, Circuit Judge. Terry Kitchen pleaded guilty for his role in a drug conspiracy

in Tennessee. The district court sentenced Kitchen to 36 months imprisonment, to be served

consecutive to a 180-month prison sentence that Kitchen received for his role in a different drug

conspiracy. Kitchen appeals this sentence. Kitchen’s counsel filed an Anders brief, asserting that

the only issues for appeal are meritless, but Kitchen filed a pro se brief, raising two additional issues

for appeal. One of the issues raised in Kitchen’s pro se brief—whether Kitchen should have

received a criminal-history point for his misdemeanor conviction for defrauding an

innkeeper—represents a potential error in calculating the proper Sentencing Guidelines range that




        *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 09-5729
United States v. Kitchen

should be addressed by the district court. Therefore, we vacate the sentence and remand for limited

resentencing on this issue.

I. Background

       Terry Kitchen pleaded guilty to a violation of 21 U.S.C. § 846, for his role in a marijuana-

distribution conspiracy in the Memphis, Tennessee area. The parties agreed to the pre-sentence

report (PSR) Guidelines calculation of 37–46 months, which reflected a total offense level of 15 and

a criminal-history category of V. The PSR detailed Kitchen’s numerous prior convictions, including

gaming offenses, possession of cocaine, defrauding an innkeeper, possession of marijuana and

conspiracy to possess with intent to distribute cocaine. The latter conviction was for Kitchen’s

conduct in a Mississippi cocaine-distribution conspiracy, which occurred around the same time as

the conduct that resulted in the instant conviction. On April 6, 2009, Kitchen received a180-month

prison sentence for that conviction. At sentencing in the instant case on June 2, 2009, Kitchen raised

several objections, arguing that: 1) the defrauding-an-innkeeper conviction should be excluded from

his criminal-history score because he was not represented by counsel and could not appear in court,

and 2) the Mississippi drug-conspiracy charge should be excluded from his criminal-history score

because it was part of the same conduct as in the instant case. The district court considered and

overruled these objections, and after reviewing the sentencing factors pursuant to 18 U.S.C. §

3553(a), the court sentenced Kitchen to 36 months of imprisonment, one month below the

Guidelines range. The court then determined that the sentence would run consecutive to Kitchen’s

sentence for the Mississippi conviction. This appeal followed.



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No. 09-5729
United States v. Kitchen

       Kitchen’s counsel has moved to withdraw and submitted an Anders brief pursuant to Anders

v. California, 386 U.S. 738 (1967), stating that he believes that Kitchen has no meritorious issues

to present on appeal. Counsel has identified three potential issues for appeal, renewing the two

objections raised below, and also suggesting that the district court erred in making the instant

sentence run consecutive to the Mississippi sentence. For his part, Kitchen has filed a pro se

supplemental brief, arguing that: 1) the district court erred in counting the defrauding-an-innkeeper

charge because it does not qualify as a misdemeanor than can be counted under U.S.S.G. § 4A1.2(c),

and 2) his counsel rendered ineffective assistance. We will address all of these arguments in turn.

                                             II. Analysis

A. Ineffective Assistance of Counsel

       We first address Kitchen’s claim that his counsel rendered ineffective assistance for failing

to properly investigate the defrauding-an-innkeeper conviction. “As a general rule, this court will

not review claims of ineffective counsel that are raised for the first time on appeal.” United States

v. Thomas, 74 F.3d 701, 715 (6th Cir. 1996) (citation and internal quotation marks omitted). We

only consider such claims on direct appeal if the record has been sufficiently developed to allow us

to actually evaluate counsel’s performance, id., and because there is no such record here, we decline

to review Kitchen’s ineffective assistance of counsel claim.

B. Sentencing Challenges

       We review the sentence imposed by a district court under the deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 51 (2007). First, we must ensure “that the district court

committed no significant procedural error, such as failing to calculate (or improperly calculating)

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No. 09-5729
United States v. Kitchen

the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Id. Next, we ensure that the sentence is substantively reasonable. “A sentence is

substantively unreasonable if the district court selects the sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount

of weight to any pertinent factor.” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th

Cir. 2010) (citation omitted).

        Here, the Government correctly notes that some of Kitchen’s arguments were not raised at

sentencing. Accordingly, the Government argues, plain-error review should apply to those

arguments. However, plain-error review only applies if the district court asked the parties if they

have any further objections to the sentence after pronouncing the sentence. See United States v.

Bostic, 371 F.3d 865, 872 (6th Cir. 2004). Here, after sentencing Kitchen, the district court asked

Kitchen’s counsel: “Anything else, Mr. Irby?” Sent. Tr. at 46. This Court has already held that

asking this exact question after sentencing does not satisfy the requirements of Bostic. See United

States v. Clark, 469 F.3d 568, 570–71 (6th Cir. 2006). Thus, plain-error review is inappropriate.

        Counting the Mississippi Drug Conspiracy Conviction. Kitchen argues that his previous

drug-conspiracy conviction should have been excluded from his criminal-history score because the

offense was part of the same overall scheme of conduct involved in the instant case. Although, the

precise legal ground for this argument is unclear, we nonetheless afford a liberal construction to

arguments of pro se litigants. Savoy v. United States, 604 F.3d 929, 938–39 (6th Cir. 2010).

Although Kitchen did not raise this argument to challenge the underlying conviction, presumably

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No. 09-5729
United States v. Kitchen

Kitchen contends that counting the Mississippi conviction in his criminal-history score would be

akin to punishing him twice for the same effective conduct in violation of the Double Jeopardy

Clause of the Constitution. See United States v. Turner, 324 F.3d 456, 461 (6th Cir. 2003) (noting

that the Double Jeopardy Clause protects “against multiple punishments for the same offense”). The

district court, however, found that the two crimes were separate and distinct conspiracies. We agree.



       To determine whether there are single or multiple conspiracies for double-jeopardy purposes,

we examine the totality of the circumstances by considering five factors:

       1) time; 2) persons acting as co-conspirators; 3) the statutory offenses charged in the
       indictments; 4) the overt acts charged by the government or any other description of
       the offenses charged which indicates the nature and scope of the activity which the
       government sought to punish in each case; and 5) places where the events alleged as
       part of the conspiracy took place.

United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983) (citations omitted). “Where several of

these factors differ between the conspiracies, the conclusion follows that the alleged conspiracies

are separate and distinct offenses.” Id. at 1256–57. Kitchen has not identified any relevant fact that

would suggest that the two conspiracies were the same. Our own review of the record does not

reveal any significant similarities between the two crimes: the two conspiracies involved different

(although overlapping) time periods, different (although perhaps overlapping) locations, and

different types of drugs. PSR at ¶¶ 5–9, 45. Furthermore, Kitchen’s counsel conceded that Kitchen

was the only common defendant in the two conspiracies. Sent. Tr. at 23. Under these facts, there

is no basis for finding the conspiracies were related. Thus, we find that the district court properly

included the Mississippi drug-conspiracy conviction in Kitchen’s criminal-history score.

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No. 09-5729
United States v. Kitchen

       Imposition of a Consecutive Sentence. Similarly, Kitchen argues that the district court erred

by imposing a sentence consecutive to the sentence for the Mississippi drug-conspiracy conviction

because the two conspiracy convictions were related. We review a district court’s decision to impose

a concurrent or consecutive sentence for abuse of discretion. United States v. Watford, 468 F.3d 891,

915 (6th Cir. 2006). If the defendant is already subject to a term of imprisonment that resulted from

another offense that is relevant to the conduct in the instant offense—as Kitchen argues—the

Guidelines generally recommend that the sentences should run concurrently. U.S.S.G. § 5G1.3(b).

However, if the defendant is subject to an undischarged sentence for conduct in a different case, the

Guidelines leave the decision up to the sentencing court. Id. § 5G1.3(c). In doing so, the district

court must consider the § 3553(a) factors. 18 U.S.C. § 3584(b). Furthermore, the Guidelines

provide the factors to determine a “reasonable incremental punishment”:

       (ii) The type (e.g., determinate, indeterminate/parolable) and length of the prior
       undischarged sentence;
       (iii) The time served on the undischarged sentence and the time likely to be served
       before release;
       (iv) The fact that the prior undischarged sentence may have been imposed in state
       court rather than federal court, or at a different time before the same or different
       federal court; and
       (v) Any other circumstance relevant to the determination of an appropriate sentence
       for the instant offense.

U.S.S.G. § 5G1.3 cmt. n.3(A).

       “A court does not abuse its discretion when it ‘makes generally clear the rationale under

which it has imposed the consecutive sentence and seeks to ensure the appropriate incremental

penalty for the instant offense.’” United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009) (quoting

United States v. Owens, 159 F.3d 231, 230 (6th Cir. 1998)). “However, this is not unfettered

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No. 09-5729
United States v. Kitchen

discretion, and the record on appeal should show that the district court turned its attention to

§ 5G1.3(c) and the relevant commentary in its determination of whether to impose a concurrent or

consecutive sentence.” United States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009) (citation and

internal quotation marks omitted). We have held that a district court commits an abuse of discretion

where the district court’s decision to impose a consecutive sentence does not include a separate

discussion of the § 3553(a) factors and the decision appears to be “divorced” from the analysis of

the § 3553(a) factors that is required before imposing the general sentence. United States v. Ross,

375 F. App’x 502, 507 (6th Cir. 2010). But, where a district court imposes a concurrent sentence

in conjunction with or immediately following the court’s invocation of the § 3553(a) factors, this

Court has held that the court did not abuse its discretion because there is no obligation to conduct

a separate § 3553(a) analysis. Berry, 565 F.3d at 343. As we have noted, requiring the § 3553(a)

analysis in that instance would be “repetitious and unwarranted.” Id.

       Here, prior to issuing Kitchen’s sentence, the district court conducted a thorough analysis of

the § 3553(a) factors, considering, inter alia, the seriousness of the crime, the drug problems in the

Memphis area, Kitchen’s responsibilities to his family, and Kitchen’s history of recidivism. Sent.

Tr. at 40–43. After sentencing Kitchen to 36 months, the court immediately considered whether the

sentence should run consecutive to the Mississippi drug-conspiracy sentence, demonstrating that the

decision to impose a consecutive sentence was not divorced from the § 3553(a) analysis. Id. at 43.

The district court also reiterated that the instant conspiracy was unrelated to the Mississippi drug

conspiracy and declined to apply § 5G1.3(b). As we have just explained, the conclusion that the



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No. 09-5729
United States v. Kitchen

conspiracies were separate was sound, and thus, the district court properly rejected this argument.

Further, the record shows that the district court also understood its discretion to issue a concurrent

sentence: “The court certainly could consider concurrent, but these are two separate and distinct

matters. . . . And under the guidelines and under the sentencing procedures, it’s the court’s belief that

a consecutive sentence is appropriate in this case.” Id. at 43. Thus, the district court sufficiently

explained its rationale for imposing a consecutive sentence. Although the district court’s discussion

was brief, there was no abuse of discretion.

        Counting the Mississippi Defrauding an Innkeeper Conviction. Kitchen makes two

arguments for excluding his misdemeanor conviction for defrauding an innkeeper from his criminal-

history score.   First, Kitchen argues that the conviction should not count because he was

unrepresented by counsel, and unable to appear for the trial because he was incarcerated on a

probation violation. Generally “a defendant in a sentencing proceeding may not collaterally

challenge the use of prior convictions . . . for purposes of criminal history calculation unless the

challenge is based upon an alleged violation of the right to counsel.” United States v. Lalonde, 509

F.3d 750, 767 (6th Cir. 2007); see also Custis v. United States, 511 U.S. 485, 487 (1994). This

exception is narrow, and only applies to the unique constitutional defect of a failure to appoint

counsel in violation of Gideon v. Wainwright, 372 U.S. 335 (1963). See United States v. Bonds, 48

F.3d 184, 186 (6th Cir. 1995); see also Custis, 511 U.S. at 496. Otherwise, “it is ‘constitutionally

permissible to consider a prior uncounseled misdemeanor conviction’ in enhancing a defendant’s

criminal history.” United States v. Duckro, 466 F.3d 438, 448 (6th Cir. 2006) (quoting Nichols v.

United States, 511 U.S. 738, 748 (1994)). The burden is on Kitchen to show that his prior conviction

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No. 09-5729
United States v. Kitchen

is invalid for purposes of calculating his criminal-history category. United States v. Hoffman, 982

F.2d 187, 191 (6th Cir. 1992).

        Kitchen does not claim that he was denied counsel as an indigent defendant, or that he

requested and was denied counsel, and he provides no court record regarding this conviction. See

Custis, 511 U.S. at 496 (creating this narrow exception because the record will generally indicate

whether there was a failure to appoint counsel for an indigent defendant). Kitchen testified at

sentencing that he was incarcerated and unable to appear in court because of an unrelated probation

violation at the time he was convicted, and that he never attempted to hire a lawyer to deal with the

case. Sent. Tr. at 14–16. This attempt to collaterally attack the conviction is impermissible and we

find that the district court properly rejected this objection.

        Second, Kitchen argues—for the first time on appeal in his pro se brief—that a misdemeanor

conviction for defrauding an innkeeper should be excluded from his criminal-history score under

U.S.S.G. § 4A1.2(c). The Government has not addressed this argument. Generally, prior

misdemeanor offenses are counted in a defendant’s criminal history, although this Guideline lists

several offenses that are never counted. However, as to another category of misdemeanor offenses,

the Guidelines provide:

        Sentences for the following prior offenses and offenses similar to them, by whatever
        name they are known, are only counted if (A) the sentence was a term of probation
        of more than one year or a term of imprisonment of at least thirty days, or (B) the
        prior offense was similar to an instant offense:

                Careless or reckless driving
                Contempt of court
                Disorderly conduct or disturbing the peace
                Driving without a license or with a revoked or suspended license

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No. 09-5729
United States v. Kitchen

                False information to a police officer
                Gambling
                Hindering or failure to obey a police officer
                Insufficient funds check
                Leaving the scene of an accident
                Non-support
                Prostitution
                Resisting arrest
                Trespassing.

U.S.S.G. § 4A1.2(c)(1). Defrauding an innkeeper is not among the listed misdemeanor offenses, so

it should only be excluded from Kitchen’s criminal history score if it is “similar to” one of the listed

offenses.

        While the Government has established that the conviction exists, Kitchen has the burden of

showing that this conviction should be excluded from his criminal-history score under § 4A1.2(c).

United States v. Staples, 202 F.3d 992, 996 (7th Cir. 2000) (“However, in the matter of exclusions

from Guidelines calculations under § 4A1.2(c)(1), the defendant and not the government carries the

burden of proof.”); United States v. Martinez-Santos, 184 F.3d 196, 200 (2d Cir. 1999); see also

United States v. Vasquez-Lopez, 104 F. App’x 464, 466 (6th Cir. 2004) (“[O]nce the government

establishes the existence of a prior conviction, the burden is on the defendant to show that a prior

conviction used to calculate his criminal history category is invalid.”). The Sentencing Commission

adopted Amendment 709, which sought to “resolve a circuit conflict over the manner in which a

court should determine whether a non-listed offense is ‘similar to’ an offense listed.” U.S.S.G. app.

C, amend. 709 (eff. Nov. 1, 2007).

        The Commission adopted the “common sense approach” first articulated by the Fifth Circuit

in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991). See United States v. Grob, 625

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No. 09-5729
United States v. Kitchen

F.3d 1209, 1213–14 (9th Cir. 2010) (adopting the “common sense” approach after recognizing

Amendment 709's resolution of the circuit split).        The Commission rejected the “essential

characteristics” approach that was applied by this Circuit, among others. See, e.g., United States v.

Cole, 418 F.3d 592, 598 (6th Cir. 2005); United States v. Ford, 187 F. App’x 496, 501 (6th Cir.

2006). Because the commentary to the Guidelines is “authoritative,” United States v. Lay, 583 F.3d

436, 446 (6th Cir. 2009), we take this opportunity to note that the “common sense approach” is now

the proper guide for determining whether a misdemeanor is similar to the listed offenses listed under

§ 4A1.2(c). This approach instructs the court to:

       use a common sense approach that includes consideration of relevant factors such as
       (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the
       perceived seriousness of the offense as indicated by the level of punishment; (iii) the
       elements of the offense; (iv) the level of culpability involved; and (v) the degree to
       which the commission of the offense indicates a likelihood of recurring criminal
       conduct.

U.S.S.G. § 4A1.2 cmt. n.12(A).

       The Mississippi statute at issue, titled “Obtaining board and lodging with intent to defraud,”

provides in relevant part:

       (1) Any person who shall . . . obtain food, lodging, money, property or other
       accommodation of a value less than Twenty-five Dollars [at an inn] with intent to
       defraud the owner or keeper thereof, shall, upon conviction, be fined not less than
       [$50.00] and not exceeding [$500.00] or imprisoned in the county jail for a term not
       exceeding one [ ] year, or both; but any person who shall . . . obtain food, lodging,
       money property or other accommodation of value of [$25.00] or over at any [inn],
       with intent to defraud the owner or keeper thereof shall, upon conviction, be fined not
       less than [$100.00] . . . or imprisoned in the State Penitentiary for a term of one [ ]
       year, or both. . . .

       (2) No person shall remain in a hotel or motel where his term or stay has expired if
       the person has been given a separate written notice of his agreed departure date . . .

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No. 09-5729
United States v. Kitchen

        and the person has been given written notice at least three [ ] hours prior to the time
        required to leave the hotel or motel room. Willful violations of this subsection shall
        be a misdemeanor punishable by a fine of not more than [$100.00]. . . .

Miss. Code Ann. § 75-73-9. The only relevant fact in the record about this conviction is that Kitchen

received a $97.50 fine. That punishment leaves open the possibility that Kitchen was convicted of

either Subsection (1)—defrauding an innkeeper of less than $25.00 in value—or Subsection

(2)—staying in a room beyond the agreed upon departure time. Subsection (1) of the defrauding-an-

innkeeper statute has some similarities to Mississippi’s insufficient funds offense, including the level

of punishment imposed, elements of the offense, and the level of culpability involved.1 See Miss.

Code Ann. §§ 97-19-55, 97-19-67(1)(a). Likewise, Subsection (2) of the defrauding an innkeeper

statute has some similarities to Mississippi’s criminal trespass statute. See Miss. Code Ann. § 97-17-

87. Thus, the single point assessed for defrauding an innkeeper may not have been appropriate and,

because excluding it would have placed Kitchen in a lower criminal-history category, the Guidelines

range may have been improperly calculated. See Lalonde, 509 F.3d at 763. Under the unique

circumstances of this case, we find it appropriate to return this issue to the district court for

consideration in the first instance, where both parties will have the opportunity to fully address this

issue and develop a record. We express no opinion as to whether the conviction should have been

excluded.

                                           III. Conclusion



       1
        We note though, that “‘Insufficient funds check,’ as used in § 4A1.2(c), does not include any
conviction establishing that the defendant used a false name or non-existent account.” U.S.S.G. §
4A1.2 cmt. n.12(C).
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No. 09-5729
United States v. Kitchen

       Accordingly, we vacate the sentence and remand to the district court, for limited

resentencing, to determine if the defrauding-an-innkeeper conviction should be excluded from

Kitchen’s criminal-history score and what impact, if any, that might have on the length of his

sentence of imprisonment. Furthermore, because Kitchen has identified a non-frivolous issue, we

deny counsel’s motion to withdraw.




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