                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0147n.06

                                            No. 11-3898


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                        Feb 12, 2013
                                                                                  DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
SHAWN FEARS,                                           NORTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                                /




BEFORE:        CLAY, COOK, and ROTH,* Circuit Judges.

       CLAY, Circuit Judge. Defendant Shawn Fears was indicted along with twenty-four others

in a fifty-nine count indictment for crimes arising out of a conspiracy to distribute crack cocaine.

After pleading guilty to conspiracy to possess with the intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), & 846, the district court sentenced Defendant to 120 months’

imprisonment on the conspiracy count and 32 months’ imprisonment for violating the terms of his

supervised release to run consecutively. Defendant appeals his sentence claiming that it was

procedurally unreasonable. For the reasons that follow, we AFFIRM Defendant’s sentence.




       *
         The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals
for the Third Circuit, sitting by designation.
                                             No. 11-3898

                                          BACKGROUND

        In 1992, Defendant Shawn Fears pleaded guilty to a federal cocaine distribution offense. For

that crime, Fears was sentenced to 240 months’ imprisonment followed by ten years of supervised

release. He was released from prison in 2008 and began his ten-year term of supervised release.

        On March 2, 2011, a federal grand jury for the Northern District of Ohio indicted Defendant,

charging him with one count of conspiracy to possess with the intent to distribute five kilograms or

more of cocaine and/or fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), & 846; one count of conspiracy to possess with the intent to distribute and conspiracy

to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

& 846; one count of attempted possession with the intent to distribute five hundred grams or more

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 846; and thirteen counts of use

of a communication facility to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b).

Defendant pleaded guilty to conspiracy to possess with the intent to distribute cocaine. The district

court sentenced Defendant to 120 months’ imprisonment for the conspiracy count and 32 months’

imprisonment for violating the terms of his supervised release with the two sentences to run

consecutively to one another.

                                     STANDARD OF REVIEW

        We generally review sentences for “reasonableness under an abuse of discretion standard,”

evaluating both the procedural and substantive reasonableness of the sentence. United States v.

Brown, 579 F.3d 672, 677 (6th Cir. 2009). In doing so, we review the district court’s legal

conclusions de novo and its findings of fact for clear error. Id. However, where, as here, a defendant


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fails to object to his sentence, review is limited to plain error. United States v. Herrera-Zuniga, 571

F.3d 568, 589 (6th Cir. 2009); see also Fed. R. Crim. P. 52(b). Plain error requires that the

defendant show (1) error, (2) that is clear or obvious, and (3) that affects his “substantial rights”; (4)

if those elements are satisfied, this Court may exercise its discretion to remedy the error if it

“seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett v.

United States, 556 U.S. 129, 135 (2009).

                                            DISCUSSION

        Defendant argues that the district court was procedurally unreasonable in sentencing him for

two reasons. First, he claims that the district court erred in sentencing him to consecutive terms of

imprisonment because the district court treated the policy statement in United States Sentencing

Guidelines Manual section 7B1.3(f) as mandatory. Second, he claims that the district court failed

to adequately justify the consecutive sentences.

1.      U.S.S.G. § 7B1.3(f)

        Section 7B1.3(f) contains the policy statement that “[a]ny term of imprisonment imposed

upon the revocation of probation or supervised release shall be ordered to be served consecutively

to any sentence of imprisonment that the defendant is serving.” U.S.S.G. § 7B1.3(f). Though this

statement reads as mandatory, as with the rest of the Guidelines, it “is not binding on the district

court, and construing it to be mandatory would be reversible error.” United States v. Johnson, 640

F.3d 195, 208 (6th Cir. 2011); see also Herrera-Zuniga, 571 F.3d at 581 (“After United States v.

Booker, 543 U.S. 220 (2005), the sentencing Guidelines are ‘advisory’ only.”). In Defendant’s case,

however, the district court did not construe § 7B1.3(f) as mandatory.


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       Defendant attempts to cherry-pick a few statements by the district court to support his claim.

Defendant first points to the district court’s statement that Defendant’s guilty plea would “expose[

him] to additional prison time” for violation of supervised release. Far from showing that the district

court believed that any supervised-release sentence had to be run consecutive, this statement was

intended to inform Defendant of the fact that by pleading guilty to the conspiracy charge, he would

also be violating the terms of his prior case’s supervised release.

       Defendant next points to this exchange between the prosecutor and the district court.

       PROSECUTOR:             [Defendant] is in violation of his supervised release, and
                               although I don’t recall getting the official - - if an official
                               notification violation came out. I think he’s exposed to about
                               a year and a half to two years, I think, as a result of that
                               violation. I certainly defer to the expert here, and I believe
                               that that has to be consecutive, if I recall correctly.

       THE COURT:              Correct. It looks like his range right now is 27 to 33 [months’
                               imprisonment].

Defendant contends that this shows that the district court agreed with the prosecutor that the

sentences had to be consecutive. Contrary to Defendant’s contention, however, the district court was

not agreeing with that aspect of the statement. The district was instead correcting the prosecutor that

the supervised-release violation exposed Defendant not to “about a year and a half to two years” but

rather to “27 to 33” months.

       Our conclusion that the district court did not treat U.S.S.G. § 7B1.3(f) as mandatory is further

bolstered when the entirety of the sentencing hearing is considered. At various times, the district

court discusses the advisory nature of the Guidelines and its discretion in determining the appropriate




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sentence. Therefore, we do not find that the district court treated Guidelines section 7B1.3(f) as

mandatory in sentencing Defendant.

2.      Justification for Consecutive Sentences

        Defendant next argues that his sentence was procedurally unreasonable because the district

court failed to adequately justify the consecutive sentences. In Rita v. United States, 551 U.S. 338

(2007), the Supreme Court mandated that a sentencing judge “set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” Id. at 356. We have recently elaborated on what a district

court must do in the context of consecutive sentences.

        In order to ensure the ability for “meaningful appellate review,” we held in United States v.

Cochrane, 702 F.3d 334 (6th Cir. 2012), that “a district court must indicate on the record its rationale

[for imposing consecutive sentences], either expressly or by reference to a discussion of relevant

considerations contained elsewhere.” Id. at 346. Specifically, we stated, “What the district court

may not do is say nothing at all” with respect to the consecutive nature of the sentences, id., which

is what the district court did here. Although the district court listed the § 3553(a) factors and

discussed each aspect of the presentence report, there is nothing tying these discussions to the

consecutive nature of the sentence imposed, rather than to the rationale for the length of the

conspiracy sentence. Therefore, we conclude that the district court committed Cochrane error in

failing to “make ‘generally clear the rationale under which it has imposed the consecutive sentence.’”

Cochrane, 702 F.3d at 346 (quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)).




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       Having concluded that the district court erred, we next turn to the three additional prongs of

plain error review that Defendant must prove in order to warrant reversal. First is the question of

whether the error was clear or obvious. Although Cochrane came down after the district court

imposed its sentence on Defendant, we have held that for the purposes of plain error review the error

must be “plain under current law,” which is “the law that exists at the time of review.” United States

v. Crosgrove, 637 F.3d 646, 656–57 (6th Cir. 2011). Therefore, because the district court’s

explanation was clearly insufficient under Cochrane, Defendant has met the second prong of plain

error review. He has, however, failed to make any argument with respect to the prejudice he suffered

as a result of this error, which he is required to do under the third prong of plain error. See United

States v. Olano, 507 U.S. 725, 734 (1993) (“It is the defendant rather than the Government who bears

the burden of persuasion with respect to prejudice.”). Where, as here, Defendant received the

sentence that the Guidelines advised that he should receive (i.e., a consecutive one), see U.S.S.G.

§ 7B1.3(f), we are not persuaded that he was prejudiced by this error and will not exercise our

discretion under plain error review to remand this case for re-sentencing. See Puckett, 556 U.S. at

135.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM Defendant’s sentence.




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