                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0202n.06

                                            No. 08-5750                                   FILED
                                                                                      Mar 31, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               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
HAROLD N. MARTIN,                      )
                                       )
                                                                 OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MARTIN, SILER, and MOORE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Harold N. Martin

appeals his sentence following a conviction on one count of carjacking and several counts relating

to his possession and use of a firearm. The district court sentenced Martin to 218 months of

imprisonment. On appeal, Martin argues that the district court improperly delegated to the Bureau

of Prisons (“BOP”) the question of whether his federal sentence should run concurrent to his state

sentences. Martin further argues that, even if the district court did impose a consecutive sentence,

its decision was still procedurally unreasonable because it provided an inadequate explanation for

doing so. For the reasons stated below, we VACATE Martin’s sentence and REMAND for further

proceedings consistent with this opinion.
                                        I. BACKGROUND

        On March 27, 2007, Martin was indicted by a federal grand jury on one count of carjacking,

one count of discharging a firearm during the carjacking, one count of possessing a firearm after

being convicted of a felony, and one count of possessing a stolen firearm. On February 19, 2008,

Martin entered into a plea agreement with the United States Attorney under which the agreed

sentence was twenty years of imprisonment. According to the Presentence Investigation Report

(“PSR”) prepared for the U.S. District Court, Martin pleaded guilty in May 2008 in state court to

multiple counts of robbery, attempted robbery, and aggravated burglary. The state court sentenced

him to eight years in prison on each conviction, and his sentences were to run concurrent with one

another. According to the PSR, some of those state convictions involved “relevant conduct”

described in the “Offense Conduct” section of the PSR.

        The district court held a sentencing hearing on June 9, 2008. During that hearing, Martin

argued that he should receive credit for the time that he had spent in state prison as a result of his

state convictions involving relevant conduct and that his federal sentence should run concurrent with

his state sentences. The government stated that it had no objection to Martin’s federal sentence

running concurrent with the state sentences that involved relevant conduct, but the government

argued that Martin’s sentence should run consecutive to the other unrelated sentences. The district

court responded by noting that making some of Martin’s state sentences concurrent and others

consecutive would have no “practical effect” on the amount of time Martin would spend in prison.

Record on Appeal, Sent. Hr’g Tr. (“ROA Tr.”) at 18. Martin responded that he wanted his federal

sentence to run concurrent with all of the state sentences. The district court replied by observing that




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the state trial court had remarked that the state sentences should be consecutive to the federal

sentence.

       After Martin made a statement, the district court proceeded to determine his sentence,

weighing several considerations. The district court noted that Martin had a lengthy criminal record

that included many “serious” offenses. Id. at 23. Therefore, the court concluded, a long sentence

was necessary to protect the community and to provide deterrence. The court also observed that

Martin was suffering from depression and that he had been receiving treatment while in custody.

Finally, the court acknowledged that Martin’s son was “in need of guidance,” id. at 24–25, but that

this factor did not “overcome[] the other serious consideration that must be a part of the sentencing

regimen.” Id. at 25. The district court then determined that the plea agreement’s recommendation

of 240 months of imprisonment was reasonable, but it decided to give Martin the credit that he

sought for the time he had already served in state prison, thereby reducing his sentence to 218

months of imprisonment.

       After pronouncing Martin’s sentence, the district court asked whether there were any

questions. Martin’s attorney responded by pointing out that the district judge had “not state[d]

whether [Martin’s sentence] would be run concurrent or consecutive with the state cases.” Id. at 27.

The district court replied:

       THE COURT: I’m not inclined to run it—I a[m] not inclined to run it concurrent.
       I did not speak to it because I’m not going to—to run that—I mean, if the Bureau of
       Prisons for some reason looked at those—look at it silent and made some
       determination, that’s—

       [Martin’s attorney]: Yes, Your Honor.

       THE COURT: —one point, but I’m not inclined to run it concurrently.



                                                 3
Id. The hearing was concluded shortly thereafter.

                                          II. ANALYSIS

       Under 18 U.S.C. § 3584(a), a district court may order that a federal sentence and an

undischarged state sentence run either concurrently or consecutively. Martin first argues, however,

that the district court erred by not actually ruling on whether his federal sentence should run

concurrent with his state sentences, but rather improperly delegating this task to the BOP. We do

not believe that the district court relied on the BOP to decide whether Martin’s sentence was to run

concurrent with the state sentences. Although the district court did contemplate some later

“determination” on the BOP’s part, ROA Tr. at 27, this was likely just a reference to the BOP’s

authority to credit prior time served. See United States v. Wilson, 503 U.S. 329, 333 (1992) (holding

that “it is the Attorney General who computes the amount of the credit” under 18 U.S.C. § 3585(b)).

There is no indication that the district court actually expected the BOP to run Martin’s sentences

concurrently, and because the district court stated that it was “not inclined” to do so itself, ROA Tr.

at 27, Martin’s sentence is consecutive by virtue of the last sentence of § 3584(a). 18 U.S.C.

§3584(a) (“Multiple terms of imprisonment imposed at different times run consecutively unless the

court orders that the terms are to run concurrently.”).

       Nonetheless, given Martin’s explicit request for a concurrent sentence, we agree with Martin

that the district court was required to rule explicitly on whether his federal and state sentences were

to run concurrently and to provide a more thorough explanation for that ruling. Whether a sentence

is to run consecutive to or concurrent with a state sentence is a question left to the district court’s

discretion. United States v. Johnson, 553 F.3d 990, 997 (6th Cir. 2009). That discretion, however,

is not “unfettered.” Id. at 998. Rather, a district court must “make[] generally clear the rationale


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under which it has imposed the consecutive sentence and seek[] to ensure an appropriate incremental

penalty for the instant offense.” Id. (internal quotation marks omitted). In particular, § 3584(b)

instructs “[t]he court, in determining whether [prison] terms imposed are . . . to run concurrently or

consecutively, [to] consider . . . the factors set forth in [18 U.S.C. §] 3553(a).” 18 U.S.C. § 3584(b).

Section 3553(a)(5) requires sentencing courts to consider any applicable policy statements in the

Guidelines. Therefore, “the record on appeal should show that the district court turned its attention

to” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5G1.3 in determining what type of sentence

to impose. Johnson, 553 F.3d at 998 (internal quotation marks omitted).1 Evidence that the district

court considered § 5G1.3 normally involves some explicit reference to that provision. See United

States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994) (vacating a consecutive sentence when the

district judge did not “expressly turn his attention to § 5G1.3(c) and Application Note 3,” although

applying an older version of § 5G1.3); United States v. Watford, 468 F.3d 891, 915–17 (6th Cir.

2006) (upholding the district court’s imposition of a consecutive sentence when it made a “brief

reference to the statutory and Guidelines factors,” although noting that even that explanation was

“somewhat cursory”), cert. denied, 550 U.S. 970 (2007); United States v. Covert, 117 F.3d 940, 946


       1
          Although Martin argued below that § 5G1.3(b) was applicable, on appeal he points only to
§ 5G1.3(c). Accordingly, we do not address § 5G1.3(b) here. Section 5G1.3(c) states that the
district court, in deciding whether to impose a concurrent or consecutive sentence, should determine
what is necessary “to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c).
Application Note 3(A) further explains that the court should consider:
         (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) (2007).

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(6th Cir.) (upholding a consecutive sentence when “the court specifically stated before imposing the

consecutive sentence that it considered ‘the pertinent policy statements . . . and the commentary of

the sentencing commission’” (quoting the district court)), cert. denied, 522 U.S. 880 (1997). In this

case, however, although the district judge considered several of the factors listed under § 3553(a),

the judge did not once reference § 5G1.3 or its application notes.

        The lack of an express reference to § 5G1.3, by itself, is not necessarily dispositive. A

district court need not “explicitly reference the § 5G1.3 considerations” if there is some other

evidence in the record that it considered that section. See United States v. Berry, 565 F.3d 332, 343

(6th Cir.), cert. denied, 130 S. Ct. 275 (2009). These circumstances are not present here, however.

Indeed, several of the district court’s comments at the sentencing hearing only generate further

confusion. For instance, when addressing Martin’s request that his federal sentence run concurrent

with his state sentences, the district court remarked that the state trial court had indicated that the

state sentences should run consecutive to the federal sentence. As Martin’s attorney correctly

pointed out at the hearing, however, a state trial court has no authority to determine whether a future

federal sentence is to run consecutive to a state sentence. Furthermore, it is difficult to reconcile the

district court’s decision to make Martin’s sentence consecutive to the state sentences with the district

court’s decision to give Martin twenty-two months of credit for the time that he had already served

on the state sentences. Whatever considerations weighed in favor of having Martin’s previous state

incarceration count toward his federal sentence presumably would be applicable to his subsequent

state incarceration as well. The district court could have resolved these ambiguities easily when

Martin’s attorney requested clarification at the end of the hearing. Instead, however, the district

court gave a response that provided little insight into its rationale. As a result, it is difficult to


                                                   6
discern the “rationale under which [the district court] has imposed the consecutive sentence.”

Johnson, 553 F.3d at 998 (internal quotation marks omitted).

       The government argues, however, that the district court was not required to give any

explanation. In particular, the government argues that a district court is always permitted to refrain

from making an affirmative ruling on whether sentences will run consecutively or concurrently and

instead may rely on what it characterizes as § 3584(a)’s “presumption” in favor of consecutive

sentences, in which case the court need not say anything. We disagree.

       The last sentence of § 3584(a) does contemplate some scenarios when a district court may

remain silent with respect to whether a federal sentence should run concurrent with or consecutive

to a state sentence. In those instances, the federal sentence “run[s] consecutively.” 18 U.S.C.

§ 3584(a). For instance, when the possibility of a sentence running concurrently was simply never

raised before the district court, the last sentence of § 3584(a) provides a convenient “rule of

construction” that would avoid unnecessary litigation. S. Rep. No. 98-225, at 127 (1983), reprinted

in 1984 U.S.C.C.A.N. 3182, 3310.2 But when, as was the case here, the defendant specifically and

repeatedly requests a concurrent sentence, district courts should not be permitted to hide behind a

mere rule of construction. Were it otherwise, the statute would shield district courts that ignore the

arguments of defendants while subjecting to reversal courts that actually try to respond to those



       2
         The government repeatedly characterizes the last sentence of § 3584(a) as a statutory
“presumption.” Appellee Br. at 8–10. Insofar as the government is suggesting that the statute
somehow favors consecutive sentences, however, it is incorrect. United States v. Miller, 903 F.2d
341, 348 (5th Cir. 1990) (“Section 3584(a) does not create a presumption meant to favor consecutive
sentences but merely a rule of construction.”); see also United States v. Quintero, 157 F.3d 1038,
1041 (6th Cir. 1998) (also observing that § 3584(a) establishes a “‘rule of construction in the cases
in which the court is silent as to whether sentences are consecutive or concurrent’” (quoting
legislative history)).

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arguments. In other words, under the government’s proposal, district courts would have an incentive

to remain silent. The government points to no case law in support of such an illogical result,3 and

indeed, its position conflicts with the numerous decisions in this Circuit that require district courts

to respond to all of a defendant’s nonfrivolous arguments in favor of a lower sentence. See, e.g.,

United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009); United States v. Recla, 560 F.3d 539,

547 (6th Cir. 2009).

       Therefore, we conclude that the district court failed to explain adequately its decision to have

Martin’s federal sentence run consecutive to his state sentences.

                                        III. CONCLUSION

       For the reasons stated above, we VACATE Martin’s sentence and REMAND for further

proceedings consistent with this opinion. On remand, the district court should rule explicitly on

whether Martin’s federal sentence is to run concurrent with or consecutive to his state sentences and

should provide an adequate explanation for that ruling. Its explanation should pay particular

attention to the considerations embodied in § 5G1.3.



       3
         The government cites United States v. Campbell, 309 F.3d 928 (6th Cir. 2002), in which a
panel of this court explained that “[w]hen a district court exercises its discretion to impose a
concurrent or consecutive sentence,” it must provide an adequate explanation. Campbell, 309 F.3d
at 931 (emphasis added). The government also cites Watford, in which a panel of this court stated
that “a district court generally may order that [prison] terms run either concurrently or
consecutively.” Watford, 468 F.3d at 915 (emphasis added). The government argues that the use
of the words “when” and “may” somehow demonstrates that the district court’s responsibility to
explain its decision to impose a concurrent or consecutive sentence applies only when the district
court chooses to make an affirmative ruling. We do not believe that the quoted opinion language
supports such a counterintuitive interpretation of § 3584(a). Instead, we read these two cases as
saying simply that, although the question of whether a federal sentence should run concurrent with
another sentence may not always arise, when it does, the district court may select either a consecutive
or a concurrent sentence, and its choice between the two must be accompanied by adequate
reasoning.

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