                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                       February 17, 2015

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                          No. 14-3046
                                                   (D.C. No. 2:08-CR-20141-JWL-1)
 FREDDY L. WILLIAMS,                                           (D. Kan.)

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before MATHESON, McKAY, and MORITZ, Circuit Judges.


       The United States District Court for the District of Kansas sentenced Freddie1 L.

Williams for a violation of his supervised release to 24 months in prison, to run

consecutively with a previously imposed state court sentence of 12 months in prison and

       *After examining Mr. Williams’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
        At his sentencing hearing on February 21, 2014, Mr. Williams explained his
name is spelled Freddie, rather than Freddy, as it appears in the caption.
12 months of post-release supervision.

          Mr. Williams appeals the federal sentence, arguing it is procedurally

unreasonable2 because it is impossible to fully implement the consecutive nature of the

federal sentence. He explains his federal sentence was imposed when he was in federal

custody and immediately began to run even though his previously imposed state sentence

was also running and not yet fully discharged. Because the two sentences overlapped,

they could not be fully consecutive.

          Mr. Williams also contends the district court did not adequately explain its

application of the 18 U.S.C. § 3553(a) factors.

          Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.


          2
         Appellants can challenge federal sentences on procedural and/or substantive
reasonableness grounds. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214
(10th Cir. 2008). Procedural reasonableness protects against “significant procedural
error, such as failing to calculate (or improperly calculating) the [United States
Sentencing] Guidelines range, treating the Guidelines as mandatory, failing to consider
the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51 (2007). Substantive reasonableness concerns whether, in light of the § 3553(a)
factors, “the length of the sentence is reasonable given all the circumstances of the case.”
United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013) (quotations omitted). Mr.
Williams argues his sentence is unreasonable but does not explicitly characterize his
challenges as procedural or substantive. He does not challenge the length of the sentence
in light of the § 3553(a) factors. He argues the district court imposed a sentence that
could not be implemented and failed to explain its consideration of the § 3553(a) factors
when imposing a consecutive sentence. We construe Mr. Williams’s arguments to be
procedural reasonableness challenges.


                                               -2-
                                   I. BACKGROUND

       In August 2013, while on supervised release for a prior federal offense, Mr.

Williams committed felony burglary and misdemeanor theft. He was arrested and taken

into state custody. In September 2013, a federal arrest warrant issued for Mr. Williams

because he had violated conditions of his supervised release, including committing a state

crime—the burglary.

       On January 3, 2014, Mr. Williams pled guilty to attempted burglary in Wyandotte

County District Court in Kansas. The state then released him on bond to be taken into

federal custody under the federal warrant.3

       On February 14, 2014, while Mr. Williams was in federal custody, the state court

sentenced him to 12 months in prison and 12 months of post-release supervision, to run

concurrently with any federal sentence resulting from his violation of the supervised

release conditions. Mr. Williams’s state sentence began to run once he was sentenced by

the state court. It appears he was credited for time served because his state sentence




       3
         The record is incomplete about Mr. Williams’s custody. At the federal
sentencing hearing, Mr. Williams explained he was in primary state custody until January
3, 2014, when Kansas released him on bond and he was taken into federal custody on the
federal arrest warrant. The government did not contest this explanation then and does not
do so on appeal. The federal arrest warrant is in the record, and the federal district
court’s docket contains an entry confirming Mr. Williams’s arrest on January 3, 2014.
The record does not include documentation confirming Mr. Williams’s release on bond,
or further details about how custody was transferred.


                                              -3-
expired on July 20, 2014.4

       On February 21, 2014, the federal district court revoked Mr. Williams’s

supervised release and sentenced him to 24 months in prison, to run consecutively to the

state sentence. It explained that calculations based on the United States Sentencing

Guidelines yielded a range of 12 to 18 months in prison followed by a period of

supervised release, but the court varied the sentence upward to 24 months with no

supervised release based on its consideration of the 18 U.S.C. § 3553(a) factors.

       Mr. Williams now appeals his federal sentence.

                                    II. DISCUSSION

                  A. Impact of Custody Status on Federal Sentencing

       To help understand the sentencing implementation issue raised in this appeal, we

address briefly how a defendant’s custody status affects the commencement of a federal

sentence.

       Under 18 U.S.C. § 3585(a), a federal sentence “commences on the date the

defendant is received in custody awaiting transportation to, or arrives voluntarily to

commence service of sentence at, the official detention facility at which the sentence is to

       4
        At sentencing, Mr. Williams explained he was arrested and taken into state
custody on August 21, 2013, transferred to federal custody on January 3, 2014, and
sentenced in state court to 12 months in prison on February 21, 2014. On appeal, Mr.
Williams’s brief states, “Kansas Department of Corrections, Sentencing Computation
Unit confirms that Mr. Williams is serving in absentia and his sentence will expire in July
20, 2014.” Aplt. Br. at 8 n.18. Given his sentence’s expiration, it is reasonable to infer
he received credit for time served despite no definitive confirmation in the record.


                                            -4-
be served.” A federal sentence normally commences immediately following sentencing

when, as here, the defendant is in primary federal custody.5 See, e.g., Binford v. United

States, 436 F.3d 1252, 1255 (10th Cir. 2006). But primary custody status can change

depending on the circumstances. See Weekes v. Fleming, 301 F.3d 1175, 1180-81 (10th

Cir. 2002).

       For example, a prisoner held in primary state custody may be temporarily

transferred to federal custody based on a writ of habeas corpus ad prosequendum, and

any federal sentence imposed while in temporary federal custody would not normally

commence until the state relinquishes its primary custody of the prisoner. See, e.g.,

Binford, 436 F.3d at 1255-56.

       That did not happen here. As noted above, Mr. Williams was in primary federal

custody when he was sentenced, so his federal sentence began to run immediately.

                                B. Issues Raised on Appeal

       On appeal, Mr. Williams attempts to raise two issues.

       First, he argues his federal sentence is procedurally unreasonable because it is

impossible to implement in accordance with the district court’s decision that it should be

       5
         “Subject to statutory restrictions, the United States Attorney General has the
exclusive authority to determine when a sentence shall begin and where the federal
sentence shall be served.” Weekes v. Fleming, 301 F.3d 1175, 1179 (10th Cir. 2002).
For example, a federal sentence can begin when a defendant is still in primary state
custody if the United States Attorney General designates a state facility as the prisoner’s
place of imprisonment. See 18 U.S.C. § 3621(b). This circumstance did not apply to Mr.
Williams’s sentence.


                                            -5-
a fully consecutive sentence. He contends the federal sentence cannot be fully

consecutive to the state sentence because the federal sentence began running before the

state sentence was completed, which necessarily required the two sentences to overlap.

He concedes the federal district court intended his state and federal sentences to total 36

months—12 months on the state sentence followed by a fully consecutive 24 months on

the federal sentence. But due to the overlap, Mr. Williams asserts, incorrectly, that he

will serve only 24 months.6

       Second, Mr. Williams argues the federal district court failed to adequately explain

its consideration of the § 3553(a) factors.

                                       C. Forfeiture

       We need not reach the merits of Mr. Williams’s arguments because he failed to

raise them at sentencing and has not demonstrated how he would survive plain-error

review on appeal. At sentencing Mr. Williams asked for his federal sentence to be

concurrent with his state sentence. He noted he had already served approximately four

months of his state sentence. He did not argue, as he does now, that a fully consecutive

sentence was not possible because his primary federal custody status at sentencing meant


       6
         At sentencing, Mr. Williams explained that he had already served four months in
state custody before he was sentenced in federal district court. It therefore appears he
will serve approximately 28 months—roughly four months in state custody followed by
24 months in federal custody, which overlapped with the remaining eight months on his
state sentence. Mr. Williams is challenging a federal sentence that results in fewer
months in prison than the district court apparently intended.


                                              -6-
his federal sentence would start to run immediately together with his state sentence,

thereby precluding a fully consecutive federal sentence. He also did not object to the

district court’s consideration of the § 3553(a) factors.

1. Forfeiture and the Burden to Show Plain Error

       “It is the general rule, of course, that a federal appellate court does not consider an

issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 119 (1976). If a theory

is not “intentionally relinquished or abandoned,” but instead “simply wasn’t raised before

the district court,” it is forfeited and may only be reversed under the plain error standard.

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011); see also United

States v. Robertson, 568 F.3d 1203, 1210 (10th Cir. 2009) (“[U]nless Defendant lodged a

specific objection to a procedural error at sentencing, our review is limited to plain

error.”).

       “We find plain error only when there is (1) error, (2) that is plain, (3) which affects

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th

Cir. 2007).

       The appellant “has the burden to satisfy the plain-error rule.” United States v.

Vonn, 535 U.S. 55, 59 (2002); see also Richison, 634 F.3d at 1131 (“If a newly raised

legal theory is entitled to appellate review at all . . . it may form a basis for reversal only

if the appellant can satisfy the elements of the plain error standard of review.”). “And the

failure to do so—the failure to argue for plain error and its application on appeal—surely
                                              -7-
marks the end of the road for an argument for reversal not first presented to the district

court.” Richison, 634 F.3d at 1131; see United States v. De Vaughn, 694 F.3d 1141,

1158-59 (10th Cir. 2012) (“Because Defendant has not even tried to show how the

alleged errors were ‘plain,’ we need not engage a full discussion of the merits.”)

2. No Objection in District Court

       At sentencing, Mr. Williams acknowledged the federal sentence could not be fully

concurrent with the state sentence because the latter began to run before Mr. Williams

was in federal custody, between August 21, 2013, and January 3, 2014. After expressing

uncertainty about how the Bureau of Prisons would implement his federal sentence in

light of the then-running state sentence, and without requesting a specific duration for his

federal sentence, Mr. Williams asked for his federal sentence to run concurrently with the

remaining period of his state sentence.7 He urged the court to consider the total

punishment imposed for his past violations, his improved attitude in the courtroom, and

his frustrations with the justice system. In response, the Government argued for a 24-

month sentence with “some amount of consecutive time.” ROA, Vol. II at 55.

       The district court then explained, based on the § 3553(a) factors, that it was

considering a sentence of 24 months to run consecutively to the state sentence and no

supervised release. The court stressed the need for deterrence and to protect the public

       7
        It is possible Mr. Williams was asking for an eight-month federal sentence to run
concurrently with the remaining eight months on his state sentence, but he did not
mention specific numbers.


                                             -8-
from Mr. Williams’s continued criminal activity. It asked Mr. Williams if there was “any

legal reason why [that] sentence should not now be imposed.” ROA, Vol. II at 61. Mr.

Williams’s counsel responded, “There’s no legal reason, Your Honor.” Id. at 61-62. At

no point did Mr. Williams argue a consecutive sentence was unreasonable because it

could not be fully implemented or assert the district court had failed to adequately explain

its consideration of the § 3553(a) factors. The court sentenced Mr. Williams to 24

months with no supervised release, to run consecutively to the state sentence.8

3. Mr. Williams’s Failure to Argue Plain Error on Appeal

       By arguing the federal district court abused its discretion, Mr. Williams essentially

addresses only the first element of the plain error test. In light of Mr. Williams’s

concession that he will serve fewer months than the federal district court intended, he has

not shown how he could satisfy the test’s remaining elements. Indeed, Mr. Williams

does not attempt on appeal to demonstrate how the purported procedural errors are plain,

affected his substantial rights, or seriously affected the fairness, integrity, or public

reputation of judicial proceedings. More fundamentally, he does not argue for us to find

plain error. Instead, Mr. Williams simply argues the merits of the two issues he attempts

to raise on appeal. Mr. Williams’s failure to present his arguments to the district court

and to argue on appeal for plain error “marks the end of the road” for his appeal.

       8
         The Government has not cross-appealed to seek resentencing to allow the district
court to revise its sentence in light of Mr. Williams’s federal custody status frustrating the
court’s intent to impose a fully consecutive sentence.


                                              -9-
Richison, 634 F.3d at 1131.9

                                 III. CONCLUSION

      We affirm Mr. Williams’s sentence.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




      9
         Mr. Williams also argues he is subject to more severe restrictions in prison
because his sentence is designated as consecutive. But this argument does not overcome
the forfeiture problem described above.


                                           -10-
