                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0869n.06

                                       Case No. 13-3777

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                         Nov 19, 2014
UNITED STATES OF AMERICA,                         )                  DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE
v.                                                )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE SOUTHERN
SEAN MURPHY,                                      )       DISTRICT OF OHIO
                                                  )
       Defendant-Appellant.                       )
                                                  )
____________________________________/             )


Before: COLE, Chief Circuit Judge, KEITH and BATCHELDER, Circuit Judges

       DAMON J. KEITH, Circuit Judge.

       Sean Murphy was convicted for burglary. The district court sentenced him to 240 months

in prison on four counts. Murphy appealed. We vacated two of the counts and remanded for

resentencing. At resentencing, the district judge sentenced Murphy to 156 months on the

remaining two counts and ordered that he serve this time consecutively with an anticipated state

sentence. Murphy again appealed. For the following reasons, we AFFIRM the district court’s

judgment.
Case No. 13-3777
United States v. Murphy

I.     BACKGROUND

       On January 18, 2009, Murphy and at least three coconspirators broke into a vault at a

Brink’s warehouse in Columbus, Ohio. They escaped with over two million dollars. Murphy

masterminded the heist.

       The Government investigated Murphy for involvement in the Brink’s heist. Near the end

of 2009, Murphy started to cooperate with investigators. Pursuantly, he participated in four

proffer sessions with the FBI, providing details regarding his involvement in the Brink’s heist

during the third. United States v. Murphy, 518 F. App’x 396, 399 (6th Cir. 2013).

       In January 2010, Murphy and two coconspirators were indicted on the following charges:

Count 1 (conspiracy to transport merchandise and money in interstate commerce); Count 2

(aiding and abetting travel in interstate commerce with intent to promote unlawful activity);

Count 3 (traveling in interstate commerce with the intent to promote unlawful activity); and

Count 4 (transporting merchandise and money in interstate commerce). Murphy represented

himself at trial. The jury found Murphy guilty on all Counts. The district court sentenced him to

“four consecutive terms of 60 months’ imprisonment.” Id. at 400.

       Murphy appealed. Among other things, he argued that the district court erred by denying

his motion to dismiss Counts 2 and 3. The United States conceded that Counts 2 and 3 failed to

state an offense, so we dismissed them. Id. at 400. Then, we vacated Murphy’s sentences and

remanded the case for resentencing on Counts 1 and 4. Id. We based our decision to remand

partly on our impression that the district court had “viewed the [original] sentences as

interdependent with one another.” Id. We otherwise affirmed the district court’s judgment. Id. at

404.




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Case No. 13-3777
United States v. Murphy

        The district court held a resentencing hearing on January 25, 2012. Although the district

court noted that the advisory sentencing range under the United States Sentencing Guidelines

(“Guidelines”) was 262 to 327 months, it acknowledged that it could not sentence Murphy above

the statutory maximum sentences for Counts 1 and 4 (180 months total). See R. at 2633; 2661.1

Applying the factors in 18 U.S.C. § 3553(a), the district court sentenced Murphy to 156 months

in prison and called this reduction a “departure.” R. at 2648–49. The district court also ordered

that Murphy, who faces similar charges in Massachusetts, serve this sentence consecutively with

any future state sentence. In imposing this sentence, the district court noted Murphy’s “very

lengthy” criminal history, which includes convictions for burglary, larceny, breaking and

entering, receiving stolen property, various drug offenses, armed robbery, and other offenses. R.

at 2659–60. The district court gave more reasons to support the imposition of consecutive

sentences. These included: (1) protecting the public from further crimes by Murphy; (2)

rehabilitating Murphy; and (3) giving Murphy a greater sentence than his codefendants, who had

lower criminal history scores and did not mastermind the heist. See R. at 2660–61.

        The district court entered a final judgment on or about June 26, 2013. R. at 2598. Murphy

again appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.     ANALYSIS

A.      Whether the District Court Erred in Calculating the Guidelines

        Murphy argues that the district court improperly calculated the Guidelines. Specifically,

Murphy asserts that the district court failed to expressly recognize that the recommended

Guidelines sentences for Counts 1 and 4 equaled the statutory maximum sentences for those

Counts. Murphy suggests that this alleged error caused the district court to start its downward

1
 “R.” designates citations to the paginated record of the proceedings below. Thus, “R. at 2633” refers to
PageID 2633, “R. at 2661” refers to PageID 2661, and so on.
                                                  -3-
Case No. 13-3777
United States v. Murphy

departure from an unduly high sentencing range. This, in turn, created a reasonable probability

that the district court meant to give Murphy a lighter sentence.

       Generally, “[w]e review a district court’s legal conclusions regarding the Sentencing

Guidelines de novo.” United States v. Moon, 513 F.3d 527, 540 (6th Cir. 2008) (citation

omitted). But where, as here, a party fails to raise this issue below, our review is for plain error.

See United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008). “A plain error is an error that

is clear or obvious, and if it affects substantial rights, it may be noticed by an appellate court.”

United States v. Story, 503 F.3d 436, 438 (6th Cir. 2007) (citation omitted) (internal quotation

marks omitted). “Failure to apply the correct Guidelines range generally constitutes plain error.”

See United States v. McCloud, 730 F.3d 600, 603 (6th Cir. 2013) (citations omitted).

       District judges should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range. Gall v. United States, 552 U.S. 38, 49 (2007) (citing Rita v. United

States, 551 U.S. 338, 347–48 (2007)). Then, district judges should consider all of the § 3553(a)

factors to determine whether they support the sentence that a party requests. Id. at 49–50. “After

settling on the appropriate sentence, [district judges] must adequately explain the chosen

sentence to allow for meaningful appellate review and to promote the perception of fair

sentencing.” Id. at 50 (citing Rita, 551 U.S. at 351). Generally, district judges commit significant

procedural error where they fail to calculate the Guidelines range, improperly calculate the

Guidelines range, or fail to adequately explain the chosen sentence. Id. at 51. We apply the 2011

Guidelines when making this assessment because they were in effect at the original sentencing.

Compare Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), with United States v. Taylor,

648 F.3d 417, 424 (6th Cir. 2011).




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Case No. 13-3777
United States v. Murphy

        In some cases, an offense’s recommended sentence is the same as its statutory maximum.

Under section 5G1.1(a) of the Guidelines, “[w]here the statutorily authorized maximum sentence

is less than the minimum of the applicable guideline range, the statutorily authorized maximum

sentence shall be the guideline sentence.” U.S. Sentencing Guidelines Manual § 5G1.1(a) (2011).

The term “guideline sentence” in section 5G1.1(a) is synonymous with “recommended

sentence,” “advisory sentence,” or “Guideline range.”2 Thus, in other words, the statutory

maximum sentence becomes the Guidelines range when it is less than the otherwise applicable

Guidelines range. This rule applies to sentencing on both single and multiple counts of

conviction. Compare U.S. Sentencing Guidelines Manual § 5G1.1(a) (2011), with id. §

5G1.2(b).3

        We have considered whether section 5G1.1(a) requires district courts to expressly state

that the Guidelines sentence equals the statutory maximum sentence when imposing a sentence.

See United States v. Russell, 423 F. App’x 562, 563 (6th Cir. 2011). In Russell, the district court

sentenced the defendant to ten years in prison, which was the statutory maximum for a felon-in-

possession conviction. Id. at 563. On appeal, the defendant argued that his sentence was

procedurally unreasonable because the district court calculated the initial Guidelines range as

eleven years and three months. Id. In rejecting this argument, we reasoned that section 5G1.1(a)

“expressly contemplates that a district court should simultaneously calculate the applicable

sentencing range and consider any statutory maximum sentence.” Id. (citations omitted). We


2
  See U.S. Sentencing Guidelines Manual § 5G1.1(a) (2011) cmt.; see also United States v. Erwin, 765
F.3d 219, 233 (3d Cir. 2014); United States v. Dorvee, 616 F.3d 174, 181–82 (2d Cir. 2010); United
States v. Johnston, 533 F.3d 972, 975 (8th Cir. 2008); United States v. Rodriguez, 64 F.3d 638, 642 (11th
Cir. 1995) (citing cases); cf. United States v. Eversole, 487 F.3d 1024, 1033 (6th Cir. 2007); United States
v. Alvarez Chavez, 46 F. App’x 502, 503 (9th Cir. 2002); United States v. Renteria, 138 F.3d 1328, 1333
(10th Cir. 1998).
3
  See also United States v. Munar, 419 F. App’x 600, 602 n.1 (6th Cir. 2011); United States v. Jones, 541
F. App’x 150, 153 (3d Cir. 2013) (citation omitted).
                                                   -5-
Case No. 13-3777
United States v. Murphy

further reasoned that the district court “calculated Russell’s sentencing range according to the

Guidelines and then acknowledged several times that Russell could not be sentenced above the

statutory maximum of ten years.” Id. Thus, we affirmed the judgment of the district court. Id. at

563–64.

       Likewise, the Second Circuit has considered whether section 5G1.1(a) requires district

courts to explicitly state that the Guidelines sentence equals the statutory maximum sentence

when imposing a sentence. United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). In Dorvee, the

district court sentenced the defendant to 233 months in prison for distribution of child

pornography, which equaled the statutory maximum of 240 months less seven months for time

served. Id. at 176. On appeal, the defendant argued that the district court erroneously calculated

the Guidelines sentence as 262 to 327 months as opposed to 240 months pursuant to section

5G1.1(a). Id. at 180. The court agreed that the district court procedurally erred when sentencing

the defendant. See id. at 180–82. The Dorvee court reasoned that the district court “never

correctly stated” whether it had concluded that the Guidelines sentence was 240 months. Id. at

181. Furthermore, the court declined to infer that the district court properly calculated the

Guidelines sentence from its statement that “the guideline imprisonment range is 262 to 327

months, but the statutory maximum is 240 months.” Id. In so deciding, the court reasoned that

some of the district court’s statements showed that it was using 262 to 327 months as a

“benchmark for any variance.” Id. at 181. For instance, the district court stated that the 233-

month sentence was “relatively far below the guideline . . . .” Id. However, the United States

conceded that 233 months was not relatively far below 240 months. Id. Accordingly, the court

vacated the defendant’s sentence and remanded the case for resentencing. Id. at 188.




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United States v. Murphy

        Later cases have construed Dorvee somewhat narrowly.4 In Valdez, also a Second Circuit

case, the court rejected the argument that the district court misapplied section 5G1.1(a) by

referring to the Guidelines sentence as life imprisonment as opposed to the applicable 20-year

statutory maximum. 522 F. App’x at 31. In rejecting this argument, the court reasoned that the

district court made clear that “it understood the initial Guidelines calculation to be superseded by

the lesser statutory maximum pursuant to § 5G1.1(a).” Id. In Guerra, the Fourth Circuit

distinguished Dorvee, stating that the court “improperly treated the higher guidelines sentence as

though it were the benchmark for any variance.” 535 F. App’x at 218 n.1 (internal quotation

marks omitted). Similarly, in Pizzino, we stated that the Dorvee court treated the imposed

sentence of 233 months “as a more lenient below-guidelines sentence[] when in fact it was . . .

not.” 501 F. App’x at 536 n.1. These cases suggest the following: a district court does not err by

failing to expressly state that the Guidelines sentence equals the statutory maximum sentence, or

by misstating that the Guidelines sentence is higher than the statutory maximum sentence, if it

uses the statutory maximum sentence as the benchmark for a downward departure.

        Here, the district court did not misapply section 5G1.1(a). Similar to Russell, although

the district court did not expressly state that the statutory maximum sentences for Counts 1 and 4

determined the Guidelines sentences, it acknowledged that it could not sentence Murphy above

the statutory maximum sentences. Likewise, while the pre-sentencing report (“PSR”) states that

the Guidelines range is 262 to 327 months, section 5G1.1(a) contemplates the calculation of this

initial advisory range. Murphy suggests that the district court adopted erroneous language from

the PSR misstating the Guidelines sentence as 324 to 405 months. Compare R. at 2632, 2661,



4
 See, e.g., United States v. Guerra, 535 F. App’x 214, 218 n.1 (4th Cir. 2013); United States v. Valdez,
522 F. App’x 25, 31 (2d Cir. 2013); United States vs. Pizzino, 501 F. App’x 535, 536 n.1 (6th Cir. 2012).
                                                  -7-
Case No. 13-3777
United States v. Murphy

with Doc. 8 at 39, 44, 46.5 But the PSR recommended a sentence that totaled the applicable

statutory maximum sentences (i.e., 180 months). See Doc. 8 at 44. And the district court later

stated during sentencing that the advisory range was 262 to 327 months. Applying the § 3553(a)

factors, the district court sentenced Murphy to less than 180 months in prison and called this

reduction a “departure.” On this record, although the district court could have more clearly

indicated that the statutory maximum sentences determined the Guidelines sentence, it did not

miscalculate the Guidelines.

        Dorvee does not dictate a different result. In Murphy’s estimation, Dorvee proposes that a

district court must specify that the Guidelines sentence equals the statutory maximum or adopt an

accurate statement of the applicable Guidelines sentence from a PSR. Murphy misreads Dorvee.

There, the defendant presented compelling evidence that the district court used the initial

advisory sentence as the benchmark for the departure. But here, the record indicates that the

district court considered 180 months as the benchmark for its departure. For the district court (1)

identified the statutory maximum sentences as 180 months, (2) acknowledged that the statutory

maximum sentences bound it, and (3) expressly stated that it was departing from 180 months.

Also, the imposed sentence of 156 months is much lower than the 262-to-327-month range from

which Murphy suggests that the district court erroneously departed. This observation indicates

that the district court departed from 180 months, not 262 to 327. A departure from 262 months to

156 months would equal 106 months. This would be 46 months more than the 60-month

departure granted at the original sentencing. But Murphy faced statutory maximum sentences

totaling 300 months on the four Counts at the original sentencing. See Murphy, 518 F. App’x at


5
  The citation format “Doc.” refers to a particular entry on the appellate docket. For instance, “Doc. 8”
refers to the eighth entry on the appellate docket. In turn, “Doc. 8 at 39” refers to page 39 of the eighth
entry on the appellate docket.
                                                   -8-
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United States v. Murphy

400. By contrast, he faced statutory maximum sentences totaling 180 months on only two Counts

at resentencing. Thus, it is unlikely that the district court would have granted a significantly

greater downward departure at resentencing than at the original sentencing.

       The unpublished cases from other circuits discussed above support this conclusion. Here,

as in the trio of cases construing Dorvee, the record clearly indicates that the district judge

departed from the 180-month total statutory maximum sentence to 156 months.

       For the foregoing reasons, the district court did not miscalculate Murphy’s Guidelines

sentence. Granted, it is preferable for district judges to specify that the statutory maximum

determines the Guidelines sentence when section 5G1.1(a) applies. This helps prevent the

judge’s sentencing remarks from creating “ambiguity as to whether the judge correctly

understood [the applicable guideline sentence].” See United States v. Corsey, 723 F.3d 366, 376

(2d Cir. 2013). Nevertheless, the record supports the conclusion that the district court departed

from only the statutory maximum sentences. Accordingly, Murphy’s first argument lacks merit.

B.     Whether the District Court Retaliated Against Murphy for Prevailing on
       Appeal

       Murphy asserts a due process challenge, arguing that the district court gave him a harsher

sentence on remand to punish him for prevailing on appeal. “We view constitutional challenges

to sentences as questions of law subject to a de novo standard of review.” United States v.

Jackson, 181 F.3d 740, 743 (6th Cir. 1999) (citation omitted).

       Due process prohibits courts from vindictively imposing a more severe sentence at

resentencing on defendants who successfully attack convictions on appeal. See North Carolina v.

Pearce, 395 U.S. 711, 725 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S.

794 (1989). Generally, a greater sentence at resentencing is “presumptively vindictive.” United

States v. Rodgers, 278 F.3d 599, 603 (6th Cir. 2002) (citing Pearce, 395 U.S. at 725–26). To

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United States v. Murphy

rebut the presumption of vindictiveness established in Pearce, the district court must rely on

“‘objective information in the record justifying the increased sentence.’” Jackson, 181 F.3d at

744 (quoting United States v. Goodwin, 457 U.S. 368, 374 (1982)). Such information need

amount to only “‘an on-the-record, wholly logical, nonvindictive reason for the sentence.’”

Gauntlett v. Kelley, 849 F.2d 213, 217 (6th Cir. 1988) (quoting Texas v. McCullough, 475 U.S.

134, 140 (1986)). Alternatively, if the Pearce presumption does not apply to a sentence after

remand, the defendant may show actual vindictiveness through the presentation of “direct

evidence.” Rodgers, 278 F.3d at 604 (citations omitted).

       In multiple-count cases, we have yet to explicitly decide whether the presumption of

vindictiveness arises when the defendant receives more time on the remaining counts than at the

original sentencing. There are two basic approaches to deciding whether the presumption of

vindictiveness arises in multiple-count cases. Most circuits have endorsed the “aggregate

package” or “packaging” approach. See United States v. Campbell, 106 F.3d 64, 67–68 (5th Cir.

1997) (citing cases); see also United States v. Fowler, 749 F.3d 1010, 1023 (11th Cir. 2014).

Under the packaging approach, the presumption of vindictiveness does not arise where the

defendant’s overall sentence is less than or equal to his original sentence. See Campbell, 749

F.3d at 68. This approach recognizes that dismissing counts may upset the district court’s

sentencing package; mechanistically reducing the sentence based on the number and type of

dismissed counts may frustrate the district court’s intent to fashion a fitting sentence. See id.; see

also United States v. Mancari, 914 F.2d 1014, 1021–22 (7th Cir. 1990); United States v. Bay,

820 F.2d 1511, 1514 (9th Cir. 1987). By contrast, the Second Circuit has embraced the

“remainder aggregate” or “count-by-count” approach. Campbell, 106 F.3d at 68 (citing United

States v. Markus, 603 F.2d 409, 413 (2d Cir. 1979)). Under this approach, courts “compare the


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Case No. 13-3777
United States v. Murphy

defendant’s new sentence to his previous sentence without the vacated count(s).” United States v.

Weingarten, 713 F.3d 704, 711 (2d Cir. 2013) (alteration in original) (citation omitted). If the

total new sentence is greater than the original sentence less the time corresponding to the vacated

count(s), the presumption of vindictiveness arises. See id.

       Our precedents indicate a preference for the packaging approach. We have held that a

district judge did not violate due process by sentencing a defendant to more time on a count than

when originally sentencing him on that and another count. See Pasquarille v. United States, 130

F.3d 1220, 1222–23 (6th Cir. 1997). In Pasquarille, the district court sentenced the defendant to

37 months in prison for cocaine possession and 60 months in prison for carrying a firearm while

trafficking drugs. Id. at 1221. Later, the district court vacated the conviction for carrying a

firearm while trafficking drugs and resentenced the defendant to 57 months. Id. In rejecting the

argument that the increased sentence for cocaine possession was unlawful, we stated that the

counts were “interdependent” parts of the sentencing package. Id. at 1222. Thus, the district

court had authority to reconsider the entire aggregate sentence to ensure that the defendant

received an appropriate sentence on the remaining count. Id.; accord United States v. Callins,

No. 96-6023, 1999 WL 503579, at *2–3 (6th Cir. July 9, 1999). We reached a similar result in

United States v. Moore, 710 F.2d 270 (1983). In Moore, the district judge sentenced the

defendant to consecutive sentences of 25 years for kidnapping and 15 years for bank robbery. Id.

at 270. Although the conviction for bank robbery was reversed, the district court resentenced the

defendant to 40 years on the kidnapping conviction. Id. We rejected the defendant’s argument

that the new sentence violated due process. Id. at 271. Our reasoning was twofold: (1) the district

judge “did give his reasons for increasing the original kidnapping sentence as called for in . . .




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United States v. Murphy

Pearce . . . .”; and (2) the new sentence did “not exceed the sentences [that] the [d]istrict [j]udge

administered . . . in the first instance.” Id.

        A more recent Sixth Circuit case also reflects packaging. See United States v.

Faulkenberry, 614 F.3d 573 (6th Cir. 2010). In Faulkenberry, a jury convicted the defendant of

“four counts of securities fraud, and one count each of wire fraud, conspiracy to commit

securities fraud and wire fraud, conspiracy to commit money laundering, and money

laundering.” Id. at 580. The district court gave the defendant ten years for the money-laundering

convictions and five years for the remaining convictions and ran all the sentences concurrently.

As a result, the defendant received ten years in prison. See id. at 590. We reversed the

convictions for money-laundering. Id. Yet, instead of reducing the defendant’s sentences to five

concurrent years, we vacated them and remanded the case to the district court for resentencing.

Id. at 591. In so doing, we called the sentences “interdependent” and reasoned that the district

court might have chosen to make some of the other sentences consecutive rather than concurrent

had it known that the money-laundering convictions were invalid. Id. On remand, the district

court resentenced the defendant to ten years in prison. United States v. Faulkenberry, 461 F.

App’x 496, 500 (6th Cir. 2012). In affirming the new sentence, we rejected the defendant’s

argument that it violated due process. See id. at 500–03.

        Based on the foregoing authority, we hold as follows: In multiple-count cases, absent

extraordinary circumstances, the presumption of vindictiveness does not arise when the district

court sentences the defendant to more time on a count than at the original sentencing for that and

one or more other counts if (1) the dismissed and remaining counts are interdependent and

(2) the new sentence is less than or equal to the original sentence on all the counts. This rule is

faithful to both our precedents and the majority approach. Furthermore, it recognizes that


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United States v. Murphy

“[s]entencing is a fact-sensitive exercise that requires district court judges to consider a wide

array of factors when putting together a sentencing package.” See Campbell, 106 F.3d at 68

(internal quotation marks omitted).

       In view of this rule, we can readily dispose of Murphy’s vindictiveness argument. We

suggested in our prior opinion that the Counts were interdependent and Murphy has not argued

otherwise.6 The new sentence of 156 months is considerably less than the original sentence of

240 months, which weighs against an inference of vindictiveness. Murphy has shown no

extraordinary circumstances suggesting differently and has not tried to show actual

vindictiveness. Moreover, the district court reasoned that the 36-month increase on Counts 1 and

4 (120 months to 156 months) would protect the public and avoid sentencing disparities between

Murphy and his codefendants. Accordingly, the district court did not violate due process by

resentencing Murphy to 156 months’ imprisonment.

C.     Whether the District Court Adequately Explained Its Decision to Impose
       Consecutive Sentences

       Murphy argues that the district court failed to justify its decision to run his federal

sentence consecutively with his anticipated state sentence. “Generally, a district court’s decision

to impose a consecutive or concurrent sentence is reviewed for an abuse of discretion.” United

States v. Moore, 512 F. App’x 590, 592 (6th Cir. 2013) (citing Setser v. United States, 132 S. Ct.

1463, 1472–73 (2012)). But where, as here, “defense counsel does not object with a reasonable

degree of specificity to a purported procedural error, a plain error standard of review applies.”

United States v. Gibbs, 626 F.3d 344, 349 (6th Cir. 2010).




6
 Therefore, we need not expound the meaning of “interdependence.” See generally Faulkenberry, 461 F.
App’x at 501–03.
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        District courts have discretion to order a defendant to serve his federal sentence

consecutively with an anticipated state sentence. Setser, 132 S. Ct. at 1473. When imposing

consecutive sentences, district courts must “indicate on the record [their] rationale, either

expressly or by reference to a discussion of relevant considerations contained elsewhere.” United

States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012). Although Cochrane involved consecutive

federal sentences, subsequent Sixth Circuit cases indicate that Cochrane also applies when

district courts run federal sentences consecutively with state sentences.7

        Cochrane’s requirement that district courts indicate their rationale on the record is not

excessively exacting. Under Cochrane, district courts need only “make generally clear the

rationale under which [they have] imposed the consecutive sentence . . . .” Id. at 346 (citation

omitted) (internal quotation marks omitted). Thus, district courts may incorporate by reference a

discussion of the relevant considerations (e.g., the § 3553(a) factors). See id. Likewise, district

courts may make clear that their reasons for “choosing a substantive sentence and for running

two sentences consecutively are the same.” Id. (citation omitted). However, district courts may

not “say nothing at all.” Id.

        In this case, Murphy’s Cochrane challenge lacks merit. At the resentencing hearing, the

district court acknowledged its authority under Setser to order consecutive sentences and gave

several reasons to support its decision. The district court noted Murphy’s “very lengthy” criminal

history. In light of Murphy’s “extensive criminal history and unrelenting recidivist behavior,” the

district court concluded that a lengthy prison term was the only way to stop him. The district

court further stated that its decision promoted public safety, rehabilitation, and sentencing parity.


7
 See United States v. Anderson, 564 F. App’x 777, 779–80 (6th Cir. 2014) (per curiam); United States v.
Cunningham, 564 F. App’x 190, 196 (6th Cir. 2014); United States v. Barahona-Sales, 524 F. App’x 235,
237 (6th Cir. 2013); United States v. Holman, 516 F. App’x 492, 494–95 (6th Cir. 2013).
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Thus, the district court generally made clear its rationale for imposing consecutive sentences,

which was “all the court was required to do.” United States v. Brown, 519 F. App’x 357, 358

(6th Cir. 2013).

       Murphy contends that the district court failed to clearly indicate that its reasons for

ordering consecutive sentences mirrored its reasons for ordering the 156-month federal sentence.

But where, as here, “the court has . . . engaged in a lengthy discussion of the sentencing factors

in explaining the sentence itself, it is generally clear that the decision to impose a consecutive

sentence is based on the same factors.” United States v. Briggs, 543 F. App’x 583, 584 (6th Cir.

2013) (citing Cochrane, 702 F.3d at 346). Furthermore, although Murphy cites four cases in

which we granted Cochrane challenges, one can easily distinguish them. In three of these cases,

the district courts “provided no rationale whatsoever” for their decision to impose consecutive

sentences. Cochrane, 702 F.3d at 347.8 Furthermore, while the fourth case suggests that

Cochrane requires district courts to more carefully delineate which § 3553(a) factors justify the

consecutive sentence, it is inapposite because we reviewed the district court’s decision for an

abuse of discretion, not plain error. See United States v. Wells, 514 F. App’x 628, 631 (6th Cir.

2013). Accordingly, though it may have been “preferable” for the district court to more clearly

delineate its rationale for imposing consecutive sentences, “it did not plainly err by failing to do

so.” See United States v. Brown, 519 F. App’x 357, 358 (6th Cir. 2013). For these reasons,

Murphy’s Cochrane challenge lacks merit.




8
 See also Barahona-Sales, 524 F. App’x at 240; United States v. Watkins, 515 F. App’x 556, 560 (6th
Cir. 2013).
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D.      Whether the United States Violated Due Process by Failing to File a Substantial
        Assistance Motion

        Murphy argues that the United States retaliated against him by refusing to file a

substantial-assistance motion under Federal Rule of Criminal Procedure 35(b) because he

exercised his right to trial by jury. To justify its refusal to file a substantial-assistance motion, the

United States contends that Murphy (1) lied during trial and (2) failed to provide substantial

assistance.

        District courts may review a prosecutor’s refusal to file a substantial-assistance motion

and grant a remedy if they find that the prosecutor based the decision on an unconstitutional

motive. Wade v. United States, 504 U.S. 181, 185–86 (1992). One such motive is to punish a

defendant for “exercising his Sixth Amendment right to jury trial.” United States v. Murphy,

65 F.3d 758, 762 (9th Cir. 1995) (citing cases). To obtain discovery or an evidentiary hearing on

a claim that the government unconstitutionally failed to file a substantial-assistance motion, the

defendant must make a “substantial threshold showing.” See Wade, 504 U.S. at 186 (internal

quotation marks omitted). To determine whether the defendant has made such a showing,

appellate courts typically assess the record below for “objective evidence.” Compare id. at 187,

with Murphy, 65 F.3d at 763 (citing Goodwin, 457 U.S. at 384).

        In this case, Murphy has failed to make a substantial threshold showing that the United

States had an unconstitutional motive. The United States stated at resentencing that, although

Murphy had disclosed the “exact manner in which he carried out [the] Brinks burglary,” “he

attempted to [defraud] the Court by suggesting to the jury that he was not involved at all . . . .” R.

at 2639. Murphy has not challenged the United States’ contention that he knowingly contradicted

his prior incriminating statements during the trial. Moreover, the United States has consistently

argued that Murphy did no more than “attempt” to provide substantial assistance. See, e.g., R.
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Case No. 13-3777
United States v. Murphy

2454, 2464–66, 2575. Although Murphy may disagree that his assistance was insubstantial, his

mere disagreement does not suggest mendacity by the United States. Cf. Hawkins v. PepsiCo,

Inc., 203 F.3d 274, 280–81 (4th Cir. 2000) (citation omitted) (holding that the perception of the

decision-maker, not the self-assessment of the plaintiff, is relevant to determine whether

discrimination motivates an adverse employment action). Thus, while federal prosecutors should

exercise caution in declining to file substantial-assistance motions in connection with a

defendant’s decision to go to trial, Murphy has not made a substantial threshold showing of an

unconstitutional motive on the United States’ part.9

III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




9
  We have carefully reviewed Murphy’s other arguments regarding whether the United States refused to
file a substantial-assistance motion because he went to trial and find them meritless.
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