            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 16a0572n.06

                                        No. 15-4228

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                              FILED
                                                                          Oct 17, 2016
UNITED STATES OF AMERICA,                        )                   DEBORAH S. HUNT, Clerk
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )     On Appeal from the United States
                                                 )     District Court for the Northern
RONALD S. RIVERA,                                )     District of Ohio
                                                 )
       Defendant-Appellant.                      )
                                                 )
_________________________________/

       Before: GUY, BOGGS, and GRIFFIN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Defendant, Ronald Rivera, appeals his

sentence and the district court’s denial of his motion to correct or amend his sentence.

We vacate in part and affirm in part.

                                            I.

       While defendant was serving a state sentence, the government charged him with

being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and possession of an

unregistered firearm, 26 U.S.C. § 5861(d). Defendant pleaded guilty, reserving the right

to appeal his designation as an armed career criminal. The district court sentenced

defendant at the middle of the guidelines range, to 200 months’ incarceration for felon-in-
Case No. 15-4228                                                                       2
United States v. Rivera
possession and 120 months’ incarceration for possession of an unregistered firearm, to

run concurrent to each other and consecutive to his ongoing state sentence.

       During defendant’s appeal of his sentence, the Supreme Court decided Johnson v.

United States, 135 S. Ct. 2551 (2015), which declared the residual clause of the Armed

Career Criminal Act unconstitutionally vague. While defendant’s post-Johnson appeal

was pending, he completed his state sentence. This court later “reverse[d] Rivera’s

designation as an armed career criminal,” remanded for resentencing, and “affirm[ed] the

district court’s decision to impose a consecutive sentence[.]” United States v. Rivera, 620

F. App’x 390, 394 (6th Cir. 2015).

       On remand, defendant sought a sentence at or below the revised guidelines range,

citing his acceptance of guilt, good behavior, and completion of certificate programs

while incarcerated. The district court “carefully considered the matter” and discussed the

18 U.S.C. § 3553(a) factors at length. Recognizing defendant’s mitigating arguments, the

district court nonetheless gave more weight to his extensive criminal history and

propensity for recidivism despite over a dozen incarcerations.         The district court

resentenced defendant to terms of 115 months, the top of the newly calculated guidelines

range for each count, to run concurrently with each other and consecutive to his (then-

completed) state sentence. The district court denied defendant credit for time served in

state custody, as his state sentence “was imposed for violating his earlier community

control sanction . . . in the state system.”

       Defendant objected, arguing that he should receive a sentence at the middle of the

guidelines range as he did at his first sentencing. The district court acknowledged the
Case No. 15-4228                                                                         3
United States v. Rivera
objection but indicated that it would “stand on the record earlier.”        Defendant also

objected to the lack of credit for time served, and the district court stated that the

§ 3553(a) factors compelled its decision.

       Defendant filed a motion to correct or amend his sentence.           He noted that

18 U.S.C. § 3584(a) permits imposition of consecutive sentences only for “multiple

terms . . . imposed on a defendant at the same time” or “on a defendant who is already

subject to an undischarged term of imprisonment,” and argued that neither of these

applied since he had discharged his state sentence prior to resentencing. The district

court denied the motion because defendant was still serving his state sentence at the time

of his first federal sentencing. Moreover, the district court indicated that even if it were

“inclined to” resentence defendant to a term that was not consecutive to his state

sentence, it “would simultaneously recommend that Rivera not receive credit for any time

he was serving his state court sentence,” resulting in the same term of incarceration.

                                            II.

       We review de novo the district court’s interpretation of a mandate. United States

v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003). We review the district court’s decision to

impose a consecutive or concurrent sentence for an abuse of discretion. Setser v. United

States, 132 S. Ct. 1463, 1472-73 (2012).

       We likewise review the reasonableness of a sentence for an abuse of discretion,

Gall v. United States, 552 U.S. 38, 51 (2007), giving “‘due deference’ to the district

court’s conclusion that the sentence imposed is warranted by the § 3553(a) factors,”

United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (quoting Gall, 552 U.S. at 51).
Case No. 15-4228                                                                       4
United States v. Rivera
A district court abuses its discretion in the sentencing context if it “commit[s a]

significant procedural error,” Gall, 552 U.S. at 53, “selects a sentence arbitrarily, bases

the sentence on impermissible factors, fails to consider relevant sentencing factors, or

gives an unreasonable amount of weight to any pertinent factor,” United States v.

Conatser, 514 F.3d 508, 520 (6th Cir. 2008).

                                           III.

       a. Consecutive Sentencing

       The district court properly imposed a consecutive term when it first sentenced

defendant. See 18 U.S.C. § 3584 (terms of imprisonment “imposed on a defendant who

is already subject to an undischarged term of imprisonment” may “run concurrently or

consecutively”). In affirming the consecutive aspect of defendant’s initial sentence, we

affirmed just that: the district court’s imposition of a consecutive sentence when

defendant was serving an undischarged state sentence. Whether the district court could

sentence defendant consecutively on remand after completing his state incarceration was

neither before the court then, nor compelled by our decision or mandate.

       The text of § 3584 permits consecutive sentences for defendants serving only

extant terms of state imprisonment. See United States v. Ossa-Gallegos, 491 F.3d 537,

543-44 (6th Cir. 2007) (en banc) (adopting canon of expressio unius est exclusio alterius

to limit supervised release tolling to periods explicitly authorized in 18 U.S.C.

§ 3583(d)). The district court lacked statutory authority to impose a consecutive sentence

upon defendant after he completed his state incarceration. It therefore erred. We vacate
Case No. 15-4228                                                                      5
United States v. Rivera
that portion of the judgment of sentence ordering that defendant’s sentences run

consecutive to his state sentence.

       b. Reasonableness

       After listening to arguments from the prosecution, the defense, and defendant

personally, the district court reviewed the presentence report and sentencing memoranda,

and thoroughly discussed the § 3553(a) factors in light of defendant’s extensive criminal

history. It thus followed proper procedure for determining defendant’s sentence. Gall,

552 U.S. at 53. Moreover, the district court did not give unreasonably inadequate or

excessive weight to any factor, rely on any impermissible factors, or select a sentence

arbitrarily. Conatser, 514 F.3d at 520; see also United States v. Adkins, 729 F.3d 559,

571 (6th Cir. 2013) (“[T]he manner in which a district court chooses to balance the

applicable sentencing factors is beyond the scope of the Court’s review.”).

       Defendant nevertheless faults the district court for imposing a sentence at the top

of the guidelines range when it previously imposed one in the middle of a different range,

noting that when initially sentencing defendant, the district court remarked that it

“believe[d] the mid range would be sufficient but not greater than necessary to meet the

purposes of the sentencing statute.” However, defendant’s sentence after remand was

less than his first sentence – 115 months rather than 200 months.

       Defendant mistakes the requirement of sentence proportionality with one of

consistency in selecting from the bottom, middle, or top regions of the applicable range.

In revisiting defendant’s sentence, the district court had no obligation to maintain a

sentence at the midpoint of the guidelines when the applicable range was markedly
Case No. 15-4228                                                                       6
United States v. Rivera
different but the underlying facts remained the same. See United States v. Duso, 42 F.3d

365, 368 (6th Cir. 1994) (holding that the sentencing guidelines do not prohibit a district

court from “revisiting the entire sentencing procedure unless restricted by the remand

order”). The factors warranting defendant’s 200-month and 120-month sentences as an

armed career criminal were no less compelling when justifying his 115-month sentences

after that designation was removed.      The district court reiterated these factors and

explained why a sentence at the high end of the guidelines range was “sufficient, but not

greater than necessary, to comply with the purposes” of § 3553(a). 18 U.S.C. § 3553(a).

Accordingly, its sentence was substantively reasonable.

                                          ***

       We VACATE the portion of the judgment of sentence ordering that defendant’s

sentences run consecutive to his state sentence, and AFFIRM his sentence in all other

respects.
