               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0736n.06

                                          No. 09-5448                                 FILED
                                                                                  Nov 23, 2010
                             UNITED STATES COURT OF APPEALS                  LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )       ON APPEAL FROM THE
v.                                                      )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
ROCKY BRUMMETT,                                         )       DISTRICT OF KENTUCKY
                                                        )
       Defendant-Appellant.                             )                         OPINION
                                                        )



BEFORE:       KENNEDY, COLE and ROGERS, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Rocky Brummett appeals one aspect of his

240-month sentence under 21 U.S.C. §§ 841, 846 and 851 for conspiracy to manufacture

methamphetamine: the district court’s decision to deny Brummett’s U.S. Sentencing Guidelines

Manual (“Guidelines” or “U.S.S.G.”) § 5G1.3(c) motion to impose his federal sentence partially

concurrently with his undischarged state sentence. Brummett argues specifically that the district

court did not address the factors in the commentary to § 5G1.3(c) in concluding that his federal

sentence should run consecutively to his state sentence. For the reasons below, we AFFIRM

Brummett’s sentence.

                                               I.

       From June 17, 2005 until January 11, 2007, Brummett was involved in a conspiracy to

manufacture at least fifty grams of methamphetamine. On September 14, 2006, Brummett
No. 09-5448
USA v. Brummett

committed the state offense of promoting contraband in the first degree when he brought marijuana

into the Laurel County Detention Center while serving time there for an unrelated offense. On

January 11, 2007, Brummett committed the state offense of receiving stolen property of the value

of $300 or more when he received a stolen all-terrain vehicle (“ATV”) in exchange for

methamphetamine. On February 14, 2007, a jury convicted Brummett of the promoting-contraband

offense, and he received a sentencing enhancement for being a persistent felony offender in the

second degree (based on a 2002 conviction for possession of contraband). Brummett was sentenced

in state court to ten years in prison for this offense and enhancement, with a minimum term

expiration date of April 17, 2014. Meanwhile, Brummett was sentenced to five years in prison for

the receiving-stolen-property offense, to run concurrently with his promoting-contraband offense.

       Here, Brummett pleaded guilty to conspiring to manufacture methamphetamine in the U.S.

District Court for the Eastern District of Kentucky. Prior to Brummett’s plea, the government filed

a notice that it would seek to increase Brummett’s minimum period of incarceration to no less than

twenty years because he possessed “a prior conviction for a felony drug offense.” 21 U.S.C.

§ 841(b)(1)(A)(vii). The prior felony drug conviction was in 2002 for first-degree possession of a

controlled substance.

       On March 27, 2009, Brummett moved under U.S.S.G. § 5G1.3(c) to request that his federal

sentence run partially concurrently with his state sentence, for which he was incarcerated until at

least April 17, 2014. At Brummett’s federal sentencing on April 7, 2009, the district court heard

argument on the § 5G1.3(c) motion and decided to impose a 240-month mandatory-minimum

sentence consecutively to Brummett’s state sentence. Brummett timely appealed.

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                                                 II.

       Both parties agree that § 5G1.3(c) applies. Section 5G1.3(c) of the Guidelines provides: “In

any other case involving an undischarged term of imprisonment, the sentence for the instant offense

may be imposed to run concurrently, partially concurrently, or consecutively to the prior

undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” Id.

(2008). The commentary to the section explains further:

       In order to achieve a reasonable incremental punishment for the instant offense and
       avoid unwarranted disparity, the court should consider the following:

               (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C.
               § 3553(a));

               (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(c) cmt. n.3(A) (2008).

       We review a district court’s determination that sentences should run consecutively or

concurrently under § 5G1.3(c) for abuse of discretion. United States v. Berry, 565 F.3d 332, 342

(6th Cir. 2009). When a district court imposes consecutive sentences, it does not abuse its discretion

so long as it “‘makes generally clear the rationale under which it has imposed the consecutive


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USA v. Brummett

sentence and seeks to ensure an appropriate incremental penalty for the instant offense.’” Id.

(quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)). However, the district court

does not enjoy “unfettered discretion[, and] the record on appeal should show that the district court

turned its attention to § 5G1.3(c) and the relevant commentary in [making] its determination.”

United States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997).

       Brummett argues the district court did not address the factors listed in the commentary to

§ 5G1.3(c). He characterizes the district court’s consideration as solely focused “on . . . whether

Brummett’s receiving stolen property over $300.00 sentence was sufficiently related to his

conviction for manufacturing methamphetamine[,] which was the subject of his federal sentencing.”

(Brummett Br. 16.) Brummett acknowledges that the district court generally considered the 18

U.S.C. § 3553(a) factors, as subsection (i) of the commentary to § 5G1.3(c) requires, but claims it

did not do so “in addressing whether Brummett’s [federal] sentence should run concurrently with

his undischarged state sentence.” (Id. at 17.) The government responds that the district court

adequately addressed these factors in reaching its § 5G1.3(c) decision and in imposing Brummett’s

sentence.

       In Berry, we found a district court’s § 5G1.3(c) discussion adequate where the district court

identified that Guidelines provision, “recognized the Section 3553(a) factors and discussed Berry’s

age, the pattern of crime over his lifetime, his prior convictions and concluded that it ‘did not find

a rationale for departing from those guidelines or for a variance.’” 565 F.3d at 342-43 (quoting the

record). Analyzing the district court’s language, we found the statement, “[t]hough brief,” to be

“sufficient to demonstrate the imposition of the consecutive sentence was reasonable” when viewed

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“in conjunction with the [district] court’s invocation of Section 3553(a),” as well as his criminal

history. Id. at 343. We explained: “We have never held that a district court is required to repeat a

Section 3553(a) analysis in its consideration of the consecutive or concurrent nature of a sentence

when the same reasons for rejecting a downward variance also support the decision for a consecutive

sentence.” Id. We then held: “Requiring district courts to conduct a separate Section 3553(a)

analysis for the concurrent or consecutive nature of the sentence would be repetitious and

unwarranted, and we hold that district courts have no such distinct obligation.” Id.

        Similarly, in United States v. Watford, the district court stated that it “considered the

guideline guidance in 5G1.3(c) and the factors set forth in the commentary, as well as 3584 of Title

18 and 3553(c)-3553(a),” but grounded its decision to impose the federal sentence consecutively

largely on the fact that “[t]he conduct in this case has absolutely nothing to do with anything that

happened in [connection to the state conviction] . . . , [and thus] the conduct in this case stands apart

and is separable factually, temporally and in any other fashion.” 468 F.3d 891, 916 (6th Cir. 2006)

(quoting the record). Reviewing that determination, we held that the district court’s explanation,

“while somewhat cursory,” was not an abuse of discretion, because “it is clear that the District Court

considered the recommendations of the Guidelines and the pertinent policy statement.” Id. at 917;

see also United States v. Harmon, 607 F.3d 233, 239-40 (6th Cir. 2010) (finding no plain error where

the district court did not mention § 5G1.3(c) but was “aware of the length and parolability of [the

defendant]’s undischarged state sentence,” discussed concern regarding knowing precisely how long

the defendant would be incarcerated on his state conviction, and stated that § 3553(a) factors drove

its sentence pronouncement, including, “in part, . . . its prior denial of [the defendant’s] request for

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USA v. Brummett

a concurrent sentence”); United States v. Campbell, 309 F.3d 928, 931 (6th Cir. 2002) (finding no

abuse of discretion where “[t]he record . . . shows that the district court imposed a consecutive

sentence because it was reasonable in light of the factors listed § 3553(a),” and where the district

court concluded that “‘a sentence at the low end of the range would not satisfy most of the

sentencing objectives set out in § 3553(a)’” (quoting the record)); Covert, 117 F.3d at 946 (“In this

instance we do not believe the district court abused its discretion even though it did not, on the

record, perform the specific calculations suggested by the guidelines. The totality of the record

makes clear that the district court properly turned its attention to § 5G1.3(c) and the relevant

commentary before imposing a consecutive sentence.”).

       Here, the record reveals that the district court received detailed argument on the § 5G1.3(c)

issue from both parties, before turning to the issue itself and holding that Brummett’s federal

sentence should run consecutively to his undischarged state sentence. Defense counsel argued that

a concurrent sentence was appropriate because “Brummett’s receipt of the stolen ATV was related

to the underlying charge of conspiracy to manufacture methamphetamine.” (Brummett’s Supp.

Sentencing Mem. on § 5G1.3(c), Dist. Ct. Docket No. 179, at 2.) At sentencing, defense counsel

continued to point to the relationship between the receiving-stolen-property offense and the

methamphetamine conspiracy as grounds for imposing a partially concurrent federal sentence to

Brummett’s state sentence. The government responded that, while the receiving-stolen-property

offense broadly related to the methamphetamine conspiracy, the former conviction punished

something entirely separate. The government also emphasized that “[t]he 2001 conviction, which

. . . form[ed] the basis for his [21 U.S.C. §] 851 enhancement, was well before the time period of this

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conspiracy, [and] was not encompassed by this conspiracy.” (Sentencing Hr’g Tr., Dist. Ct. Docket

No. 206, at 24.)

        Subsequently, the district court discussed the 18 U.S.C. § 3553(a) factors, including the need

to protect the public and provide deterrence, Brummett’s drug addiction issues, and his need for

vocational training. The court then considered “whether this sentence should be concurrent or

partially concurrent under 5G1.3,” (id. at 29-30):

        And I certainly understand the arguments that have been raised as to the various state
        terms that have been imposed, and I do understand the argument that the charge
        reflected in paragraph 96 [the possession-of-contraband conviction], I believe it was,
        would be the charge that would be used as an enhancement under 851, but that is too
        tenuous for the Court to use that as a reason to impose a partially concurrent
        sentence. I do understand that the Court can consider all information in the case in
        determining whether a concurrent or partially concurrent sentence would be
        appropriate, but under the circumstances of this particular case and for the reasons
        that I explained during my questions and my discussion with counsel, I don’t believe
        it would be appropriate in this particular case. And, quite frankly, I don’t believe that
        the other charge for which Mr. Brummett received a five-year sentence would be
        sufficiently connected. While he was dealing with the co-defendant [for the stolen
        ATV], . . . he was convicted for receiving stolen property, which is a separate and
        independent crime [from conspiracy to manufacture methamphetamine]. . . . And the
        other charge that forms the basis for the 851 enhancement is even more tenuous.
        And so the Court doesn’t believe that it would be appropriate [to run the sentences
        concurrently or partially concurrently], but I certainly do understand and appreciate
        the argument in that regard that has been made.

(Id. at 30-31.)

        Examination of the district court’s discussion, especially in light of its colloquies with the

parties, reveals that it adequately “turned its attention to § 5G1.3(c) and the relevant commentary in

[making] its determination.” Covert, 117 F.3d at 945. In Berry, we held that a district court need

not go through the § 3553(a) factors separately in the context of § 5G1.3(c), 565 F.3d at 343, and the


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district court here adequately discussed the § 3553(a) factors before turning to the § 5G1.3(c) issue.

Moreover, here the district court explicitly referred to § 5G1.3(c)—albeit not the commentary—and

discussed its discretion thereunder to run Brummett’s federal sentence concurrently, partially

concurrently, or consecutively. Compare United States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994)

(vacating a consecutive federal sentence when the district judge “did not expressly turn his attention

to § 5G1.3(c) and Application note 3 of the commentary” and the reviewing court could not

determine “whether the district court’s failure to expressly address the guideline and commentary

resulted in an incorrect application of the Sentencing Guidelines”), with Sentencing Hr’g Tr., Dist.

Ct. Docket No. 206, at 29-30 (specifically addressing “whether [the federal] sentence should be

concurrent or partially concurrent under 5G1.3” to Brummett’s undischarged state sentence). And

though the district court did not specifically discuss the factors in the commentary, “the totality of

the record shows that the [district] court considered each of the factors contained in application note

3(A) and thus committed no error.” Harmon, 607 F.3d at 239. The district court and Brummett’s

counsel had an extensive discussion about the nature and length of the sentences for both of

Brummett’s state convictions, (see Sentencing Hr’g Tr., Dist. Ct. Docket No. 206, at 13-15),

demonstrating that the district court considered the “type (e.g., determinate, indeterminate/parolable)

and length of [Brummett’s] prior undischarged sentence,” U.S.S.G. § 5G1.3 cmt. n.3(A)(ii); see also

Watford, 468 F.3d at 917. Furthermore, the district court’s focus on the relatedness of the facts

underlying the state and federal sentences is appropriate, see Watford, 468 F.3d at 917, and

understandable given that defense counsel concentrated almost exclusively on this issue in his §



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5G1.3(c) argument. The record thus demonstrates that the district court adequately examined the

factors in § 5G1.3(c) and the commentary in reaching its decision.

                                              III.

       For the foregoing reasons, we AFFIRM Brummett’s consecutive sentence of 240 months.




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