                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0207n.06
                                                                                            FILED
                                       No. 10-3826/10-3827
                                                                                       Feb 23, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                          )
                                                   )      ON APPEAL FROM THE
        Plaintiff - Appellee,                      )      UNITED STATES DISTRICT
                                                   )      COURT FOR THE NORTHERN
v.                                                 )      DISTRICT OF OHIO
                                                   )
JASON EDDY,                                        )      OPINION
                                                   )
      Defendant - Appellant.                       )
______________________________                     )



Before: BOGGS and WHITE, Circuit Judges; BERTELSMAN, District Judge.*



        HELENE N. WHITE, Circuit Judge. Defendant-Appellant Jason Eddy appeals the twenty-

one-month sentence imposed for violating the terms of his probation. He raises several procedural

and substantive reasonableness challenges, including that the district court did not appreciate its

discretion to impose a concurrent sentence for the violations. We REMAND for resentencing.

                                                  I.

        On December 15, 2008, Eddy pleaded guilty to a single count of distributing a controlled

substance, 21 U.S.C. § 841(a)(1) and (b)(1)(C), based on Eddy’s sale of .86 grams of crack cocaine

on June 18, 2007. The district court sentenced Eddy to three years’ probation, with the special

conditions that Eddy participate in a drug-treatment program and, for the first six months, a Location

            *
              The Honorable William O. Bertelsman, United States District Judge for the Eastern
     District of Kentucky, sitting by designation.
Monitoring Program (“LMP”). On April 21, 2009, two months after Eddy was sentenced, he was

indicted for a new, more serious offense: conspiracy to distribute and possess with intent to distribute

50 or more grams of cocaine base, 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). After his arrest

on April 22, 2009, Eddy tested positive for cocaine use. On April 23, 2009, the probation office filed

a probation-violation report in Eddy’s earlier case. In addition to certain LMP violations, the

probation-violation report lists the indictment in Eddy’s conspiracy case, as well as the positive drug

test, as new violations.

        On November 24, 2009, Eddy pleaded guilty to the conspiracy charges. The record does not

reflect that Eddy’s first case was transferred from the judge who placed Eddy on probation, Judge

Wells, to the judge presiding over the conspiracy case, Judge Boyko, nor does the docket in Eddy’s

first case reflect a scheduled probation-violation hearing.1 Eddy filed a sentencing memorandum in

the conspiracy case that, among other things, argued for the mandatory minimum of ten years, but

made no reference to the probation violations.

        A sentencing hearing took place on June 17, 2010, before Judge Boyko, presiding over the

conspiracy case. At the beginning of the proceeding, he stated, “[w]e are here today for sentencing

and to address the violations.” Tr. at 2 (emphasis added). The district court also confirmed that

Eddy’s counsel had spoken with Eddy about the probation violations. After arguing for the

mandatory minimum, Eddy’s counsel made the following statement:

        In terms of the probation violation in the case which was in front of Judge Wells, we
        admit the violation contained within that report. I have read the recommendation
        from the Probation Department that Mr. Eddy receive between 15 and 21 months.
        We know that that is to be served consecutively with his other case. We would ask


           1
             The presentence investigation report (“PSR”) in the conspiracy case refers in passing
    to the probation-violation report filed in Eddy’s first case. PSR at 16.

                                                   2
       this Court that in light of all of the circumstances outlined in the sentencing
       memorandum and in particular the substantial amount of time that Jason must serve
       in prison, that this Court only sentence him to the minimum of 15 months.

Tr. at 4. The probation officer then read into the record the violations to which Eddy admitted. At

no point during the sentencing proceeding did Eddy object to Judge Boyko addressing the probation

violations.

       The district court considered the § 3553(a) factors, including Eddy’s criminal history, and

imposed the ten-year mandatory-minimum sentence for the conspiracy. The district court then

turned to the probation violations:

       Before I get to the rest of the conditions, the violations, we have two grade A’s, two
       grade C’s. The range is 15 to 21 under the application, and we have – since we have
       grade A violations here, first of all, they must be run consecutive, and we’re going
       to put 21 months onto that, so another 21 months for the violations consecutive to the
       120 months, for going ahead and drug dealing while on community control in
       Common Pleas and awaiting sentencing in District Court.

Id. at 20-21. The district court entered judgment in both cases four days later on June 21, 2010. This

appeal followed.

                                                  II.

       Eddy challenges the procedural and substantive reasonableness of his sentence. Because his

procedural challenge has merit, we need not address his substantive claim. See United States v.

Steeby, 350 F. App’x. 50, 51 (6th Cir. Oct. 29, 2009). We review sentences – including sentences

imposed on revocation of probation – under an abuse-of-discretion standard.2 See Gall v. United

States, 552 U.S. 38,41 (2007); see also United States v. (James) Johnson, 640 F.3d 195, 201 (6th Cir.


              2
            In the briefs, the parties raised a threshold Bostic issue over which standard of review
   – plain error or abuse of discretion – applies to Eddy’s arguments involving notice. See
   United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). Because our decision does not
   turn on the notice question, however, the standard of review issue is moot.

                                                  3
2011) (reviewing revocation of probation for abuse of discretion). A sentence is procedurally

unreasonable “if the district court fails to calculate (or improperly calculates) the Guidelines range,

treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based

on clearly erroneous facts, or fails to adequately explain the chosen sentence.” United States v.

Baker, 559 F.3d 443, 448 (6th Cir. 2009). In this circuit, within-guidelines sentences raise a

rebuttable presumption of reasonableness. See United States v. Christman, 607 F.3d 1110, 1117 (6th

Cir. 2010).

        Eddy attacks the procedural reasonableness of his sentence from two angles. First, Eddy

contends that he did not have advance written notice of the probation-revocation hearing and,

relatedly, that Judge Boyko was not authorized to conduct that hearing because Eddy’s first case had

not been transferred in accordance with local rules. N.D. Ohio Crim. R. 57.9(b). Second, Eddy

contends that the district court improperly treated the guidelines as mandatory when it imposed a

consecutive sentence for his probation violations. We address Eddy’s second argument first because

it controls the disposition of the case.

        United States Sentencing Guideline § 7B1.3(f) provides:

        Any 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, whether or not the sentence of imprisonment being
        served resulted from the conduct that is the basis of the revocation of probation or
        supervised release.3

Although couched in mandatory terms, we have held that a district court commits reversible error



              3
             Application Note 4 to U.S.S.G. § 7B1.3 states, “[s]imilarly, it is the commission’s
    recommendation that any sentence of imprisonment for a criminal offense that is imposed
    after revocation of probation or supervised release be run consecutively to any term of
    imprisonment imposed upon revocation.”

                                                  4
when it mistakenly believes that the Guidelines compel the imposition of a consecutive sentence.

United States v. Jackson, No. 05-6884, 244 Fed. App’x. 727, 728-29 (6th Cir. Aug. 9, 2007); United

States v. Green, 157 F. App’x 853, 858 (6th Cir. 2005); United States v. Sparks, 19 F.3d 1099, 1101

(6th Cir. 1994); accord United States v. Gibbs, 506 F.3d 479, 483 (6th Cir. 2007).

        This court addressed a similar situation in Jackson, an unpublished opinion. In Jackson, the

defendant’s counsel stated that “[i]t’s my understanding under 7B1.3(f), any term of imprisonment

for this revocation has to run consecutive to any other sentence. Of course, I’d like to argue that it

would run concurrent, but if that’s the guideline and that’s the rules, that’s the rules.” 244 F. App’x.

at 728. Neither the court nor the government corrected the defendant’s counsel’s erroneous belief

in Jackson. Id. In sentencing the defendant, the district court in Jackson stated that “because of

U.S.S.G. § 7B1.3(f), [defendant’s] term of imprisonment must be served consecutively to the state

sentence.” Id. (emphasis in original). On appeal, we held the district court’s statement constituted

plain error.

        The government has not distinguished Jackson in any meaningful way and effectively

conceded at oral argument that the district court’s statement was incorrect as a matter of law.

Instead, in the government’s view, the district court made two statements that demonstrate it

understood its discretion. First, in laying out the legal standard for imposing sentence, the court

mentioned the seminal Supreme Court case holding that the Sentencing Guidelines are advisory,

United States v. Booker, 543 U.S. 220, 259 (2005) (severing and excising the provision of the

Sentencing Reform Act of 1984 making the Sentencing Guidelines mandatory). A review of the

transcript, however, reveals that the district court was simply setting forth the analytical framework

for arriving at an appropriate sentence:


                                                   5
       Under the United States versus Booker and the U.S. Sentencing Commission,
       probation does a three-step analysis: first, determines the appropriate guideline range;
       second, identifies any possible guideline departures; and third, determines if a
       nonguideline sentence, that is, a variance can be considered under the 3553(a)
       factors. . . . And Ms. Small has not identified any factors that may warrant a
       departure.

Tr. at 14-15. Next, the government highlights the following statement by the district court:

       Shall I give you life? Do you want to die in prison, Mr. Eddy? . . . Because before
       we leave here, I could give you life. Do you know that? Do you understand that, that
       I’m not bound by the 120 months? That’s the mandatory minimum. What’s it going
       to take to get it through your head to stay out of trouble?

Id. at 19-20. Based on this statement combined with the reference to Booker, the government argues

weakly, “[i]t follows that, if the court understood its discretion to impose greater than the 120-month

mandatory minimum sentence on the drug conspiracy offense, the court also understood it had the

discretion to impose either concurrent or consecutive sentences on the probation violation.”

Appellee’s Br. at 25.

       This syllogism lacks logical force. The record reveals that the district court completed its

analysis of the conspiracy sentence, stating “[l]et’s go ahead and sentence you. All right, Mr. Eddy,

it’s the judgment of this Court that you are committed to the custody of the Bureau of Prisons for a

term of 120 months.” Tr. at 20. Then, the district court turned to the probation violations from the

first case. The district court referenced Booker at the beginning of its discussion of the §3553(a)

factors, not when it was reviewing the probation violations.

       The record indicates that the question whether sentences for probation violations must be

served consecutively was distinct from the court’s consideration of the § 3553(a) factors. Moreover,

Eddy’s counsel erroneously conceded that the Guidelines mandated a consecutive sentence, and the

district court likewise stated that the sentences “must” be consecutive. Although the government


                                                  6
did state at the sentencing hearing that the Guidelines “recommend” a consecutive sentence, this

passing reference preceded the court’s statement and is not sufficient to overcome Eddy’s counsel’s

concession and the district court’s explicit statement. The record supports that the district court

erroneously believed Eddy’s sentence must be served consecutively, and his sentence must therefore

be remanded. Accordingly, we need not address Eddy’s additional procedural reasonableness

arguments.4

                                                III.

       For the foregoing reasons, we REMAND for resentencing.




           4
            Eddy also raises the issue whether the written judgment in the conspiracy case
   conforms to the district court’s oral pronouncement. Specifically, Eddy contends the district
   court only stated that the twenty-one-month sentence for the probation revocation would be
   served consecutively to the 120-month sentence in the conspiracy case, but the district court
   orders nevertheless made both sentences consecutive to each other. Because this opinion
   relates to both orders, however, the district court’s orders in both cases must be modified to
   be consistent with this opinion. Thus, Eddy’s argument on this issue is moot.

                                                 7
