                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0115n.06
                           Filed: February 11, 2009

                                           No. 07-5104

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


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


Before: MERRITT, ROGERS, and WHITE, Circuit Judges.

       WHITE, Circuit Judge. Pursuant to a plea agreement, Defendant-Appellant Marvin Rainer

pleaded guilty of conspiracy to commit identity theft and wire fraud (count 1), in violation of 18

U.S.C. § 371, and wire fraud (count 2), in violation of 18 U.S.C. §§ 1343 and 2. The district court

sentenced Defendant to concurrent 45-month terms as to each count, to be served consecutively to

an undischarged state-court sentence. Defendant asserts that the district court violated his Sixth

Amendment rights by failing to appreciate that it had discretion to provide that the sentences run

concurrent with the state sentence and by engaging in fact-finding prohibited by United States v.

Booker, 543 U.S. 220 (2005). We disagree, and affirm.

       18 U.S.C. § 3584(a) provides:

       Multiple sentences of imprisonment
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United States v. Rainer


       (a) Imposition of concurrent or consecutive terms.– If multiple terms of
       imprisonment are imposed on a defendant at the same time, or if a term of
       imprisonment is imposed on a defendant who is already subject to an undischarged
       term of imprisonment, the terms may run concurrently or consecutively. . . .

Section 5G1.3(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G.) provides:

       Imposition of a Sentence on a Defendant Subject to an Undischarged Term of
       Imprisonment

       (a) If the instant offense was committed while the defendant was serving a term of
       imprisonment (including work release, furlough, or escape status) or after sentencing
       for, but before commencing service of, such term of imprisonment, the sentence for
       the instant offense shall be imposed to run consecutively to the undischarged term of
       imprisonment

The Commentary following § 5G1.3 includes:

       Background: In a case in which a defendant is subject to an undischarged sentence
       of imprisonment, the court generally has authority to impose an imprisonment
       sentence on the current offense to run concurrently with or consecutively to the prior
       undischarged term. 18 U.S.C. § 3584(a). Exercise of that authority, however, is
       predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a),
       including any applicable guidelines or policy statements issued by the Sentencing
       Commission.

       Notwithstanding the seemingly mandatory language of U.S.S.G. § 5G1.3(a), we have

recognized that the district court has discretion to impose consecutive or concurrent sentences

pursuant to 18 U.S.C. § 3584 and U.S.S.G. § 5G1.3, upon consideration of the factors listed in 18

U.S.C. § 3553(a) and the applicable guidelines and policy statements in effect at the time of

sentencing. United States v. Clark, 385 F.3d 609, 623-24 (6th Cir. 2004); United States v. Campbell,

309 F.3d 928, 930-31 (6th Cir. 2002). Thus, to the extent Defendant challenges his sentences on the




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basis that U.S.S.G. § 5G1.3(a) impermissibly mandates the imposition of consecutive sentences, his

challenge fails.

        Defendant also asserts that the district court failed to recognize its discretion. This court has

held that where the district court states that § 5G1.3 requires that it impose a consecutive sentence,

the court has failed to recognize its discretion, the statement constitutes plain error, and the case must

be remanded for resentencing. United States v. Gibbs, 506 F.3d 479, 487-88 (6th Cir. 2007). The

record on appeal should reflect that the district court considered the factors listed in § 3553(a) and

any pertinent guidelines so the appellate court can determine whether consecutive sentences were

properly imposed. United States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994). If a district court

exercises its discretion and imposes a consecutive sentence pursuant to § 5G1.3 and § 3584(a), “it

must do so in light of the factors listed in 18 U.S.C. § 3553(a) and the relevant commentary,

including the defendant’s history and characteristics, affording adequate deterrence to criminal

conduct, and protecting the public from further crimes of the defendant.” Campbell, supra, 309 F.3d

at 931 (citations omitted).

        The record reflects that although the Presentence Report (PSR) can be read as stating that §

5G1.3(a) required consecutive sentencing, the district court recognized and exercised its discretion,

considered the appropriate factors, and adequately stated its reasons for imposing a consecutive

sentence. It is clear from the sentencing hearing transcript that the district court recognized the

advisory nature of the Guidelines, considered the Guidelines range, and considered the § 3553(a)

factors, as is required post-Booker. There is no indication that the district court considered §


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5G1.3(a) of the Guidelines as mandating a consecutive sentence; rather, the court’s remarks evidence

that it was aware of its discretion to impose either a concurrent or consecutive sentence, and that it

concluded that a concurrent sentence was inappropriate given the nature of Defendant’s offenses,

and given that Defendant’s state sentence was expected to expire approximate eleven months after

sentencing. See 18 U.S.C. § 3584, quoted supra.

       We also reject Defendant’s argument that the district court’s determination that he was

subject to an un-discharged term of imprisonment violated his Sixth Amendment rights under

Booker, supra, which held that any fact, other than a prior conviction, that is necessary to support

a sentence exceeding the maximum authorized by the facts established by a plea of guilty must be

admitted by the defendant or proved to the jury beyond a reasonable doubt. The district court did

not engage in such fact-finding. Defendant acknowledged that he was serving an undischarged state

sentence at the time he committed the instant offenses and that his undischarged sentence was

expected to expire in November 2007.1

       Finally, even if Defendant had not admitted at sentencing that he was serving an

undischarged state sentence at the time he committed the instant offenses, the district court’s

imposition of a consecutive sentence in the instant case did not violate Defendant’s Sixth

Amendment rights under Booker. See Oregon v. Ice, 129 S. Ct. 711 (2009) (declining to extend the



       1
        The PSR stated that Defendant’s state sentence was expected to expire in November 2007.
At sentencing, after defense counsel made an assertion to the contrary, the prosecutor elicited from
the probation officer that Defendant’s state sentence would expire in November 2007. Defense
counsel then stated on the record that Defendant acknowledged that was correct.

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Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), line

of decisions to determinations whether sentences be concurrent or consecutive).



       We AFFIRM.




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