                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 4, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 06-1479
 v.
                                                (D.C. No. 06-cr-00018-EWN)
                                                         (D. Colo.)
 FRANK O’BRYAN,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant-Appellant Frank O’Bryan appeals his twenty-four month

sentence for a crime committed while on supervised release, which is to run

consecutive to his supervised release revocation prison sentence, arguing that the

district court treated the policy statement of United States Sentencing Guidelines

5G1.3(c) as mandatory and thus failed to consider the possibility of granting him



      *
        This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
a sentence running concurrently with his revocation prison sentence. We exercise

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM.

                                I. BACKGROUND

      Mr. O’Bryan was on supervised release from a prior felony conviction

when he violated the terms of his release. After revocation, he was resentenced to

thirteen months of imprisonment and twenty-three months of supervised release.

His supervised release violations gave rise to an indictment for eight counts of

making false statements, in violation of 18 U.S.C. § 1001, and one count of

witness tampering, in violation of 18 U.S.C. § 1512(b)(1). Mr. O’Bryan

ultimately pleaded guilty to witness tampering.

      At the sentencing hearing, the district court adopted the factual statements

of the Presentence Investigation Report (“PSR”) without objection. After a two-

level reduction for acceptance of responsibility, Mr. O’Bryan’s total offense level

was twelve. 1 In light of a criminal history category of IV, the district court

calculated Mr. O’Bryan’s Guidelines imprisonment range to be twenty-one to

twenty-seven months with a supervised release range of two to three years.

Discussing the factors in 18 U.S.C. § 3553(a), the court balanced Mr. O’Bryan’s

health concerns against the seriousness of his crime, his significant criminal


      1
          Mr. O’Bryan’s sentence was computed by referencing the 2005 edition
of the United States Sentencing Guidelines Manual. The parties do not question
the use of that edition. Accordingly, we use that edition in our analysis and our
citations to the Guidelines are to the 2005 edition.

                                         -2-
history, and the need to protect the public and deter criminal conduct. It then

sentenced him to a prison term of twenty-four months, the middle of the

Guidelines range.

      After the district court announced its sentence, Mr. O’Bryan raised the

possibility of receiving a concurrent sentence. His request apparently related to

both the prison term the district court had imposed upon him for his supervised

release violation and the supervised release period that the district court had

tacked onto that prison term. Aplt. Br. at 3 (“[D]efense counsel requested that the

sentence and supervised release run concurrent with the revocation sentence.”). 2

Specifically, he stated: “And I would ask . . . that this sentence and the supervised

release run concurrent with that [previously imposed sentence], pursuant to 18


      2
             Mr. O’Bryan’s request through counsel for a concurrent sentence
engendered some confusion in the district court regarding the scope of his
request. The district court initially understood Mr. O’Bryan only “to be
requesting concurrent supervised release terms.” R., Vol. II, Tr. at 15 (Transcript
of Sentencing Hearing, dated Oct. 13, 2006). In other words, the district court
thought Mr. O’Bryan was only seeking to have the new supervised release period
that the court appended to his imprisonment, after revoking his supervised
release, run concurrently with the supervised release period that it presently was
considering imposing for the witness-tampering crime. In some instances, Mr.
O’Bryan’s counsel did not appear to clearly distinguish between the imprisonment
and supervised release components of his earlier sentence. Id. at 12, 15-16
(referring generally to his “supervised release violation sentence,” and using
“supervised release” as an apparent shorthand for both his earlier prison term and
supervised release). That may have contributed to the district court’s confusion.
In any event, in raising its objections, the government expressed its understanding
that Mr. O’Bryan (also) was seeking to have his prison terms run concurrently.
After some discussion, the parties and the court seemed to operate on that
commonly-held view.

                                         -3-
United States Section 3584.”     R., Vol. II, Tr. at 11-12 (Transcript of Sentencing

Hearing, dated Oct. 13, 2006).

      The district court granted Mr. O’Bryan’s request regarding the supervised

release term. Id. at 12 (“The term of supervised release of three years will be

concurrent with any other term of supervised release. . . .”). However, at that

juncture, the government lodged an objection to “the defense request for

imposition of this sentence to be concurrent with the undischarged term of

imprisonment.” Id. at 15. The government directed the court’s attention to

“application note 3(C) to guideline Section 5G1.3, where the sentencing

guidelines recommend consecutive sentences with the undischarged term of

imprisonment for revocation violation.” Id. (emphasis added). Mr. O’Bryan’s

counsel commented that the request for a concurrent prison term was “almost

becoming academic” because Mr. O’Bryan would soon have discharged his prior

sentence. Id. at 16.

      The district court agreed that defense counsel was correct “in a sense”

because only a month remained on the first sentence, but observed that “the

Government is also right when it says that [this sentence] is to be consecutive . . .

because that’s what the guidelines say.” 3 Id. The district court concluded, “to

clarify, the defendant is . . . to be imprisoned for a period of 24 months,

      3
            Mr. O’Bryan quotes the district court as saying that the sentence “has
to be consecutive” instead of “is to be consecutive.” Aplt. Br. at 3. However, the
term “has” does not appear in this passage of the sentencing hearing transcript.

                                          -4-
consecutive to the undischarged term of imprisonment, which he is currently

serving.” Id. Mr. O’Bryan timely filed this appeal.

                                 II. DISCUSSION

      Mr. O’Bryan’s only appellate claim is that his consecutive sentence is the

result of the district court erroneously treating Guidelines § 5G1.3(c) as

mandatory, in violation of United States v. Booker, 543 U.S. 220, 249 (2005),

which generally held that the Guidelines can be applied only in an advisory

manner. Section 5G1.3(c) speaks to situations involving an “undischarged term

of imprisonment” like Mr. O’Bryan’s, stating that:

              [T]he 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.

U.S.S.G. § 5G1.3(c) (emphasis added). More specifically, in pertinent part, the

relevant commentary provides:

             Subsection (c) applies in cases in which the defendant was on
             federal . . . supervised release at the time of the instant offense
             and has had such . . . supervised release revoked. . . . [T]he
             Commission recommends that the sentence for the instant
             offense be imposed consecutively to the sentence imposed for
             the revocation.

Id. cmt. n. 3(C) (emphasis added).

      As a statutory matter, district courts have the discretion to impose

consecutive or concurrent sentences. See 18 U.S.C. § 3584(a) (stating generally

that “if a term of imprisonment is imposed on a defendant who is already subject

                                          -5-
to an undischarged term of imprisonment, the terms may run concurrently or

consecutively” (emphasis added)); United States v. Rodriguez-Quintanilla, 442

F.3d 1254, 1256 (10th Cir. 2006) (stating that under § 3584(a) “a district court

has the discretion to impose consecutive or concurrent sentences”). We have

reviewed district courts’ sentencing choices in this area for an abuse of discretion.

See United States v. Williams, 46 F.3d 57, 58 (10th Cir. 1995). More specifically,

in light of Booker and its progeny, it is clear that ordinarily Mr. O’Bryan’s

challenge would be subject to an abuse-of-discretion standard of review.

      After Booker, federal criminal sentences are reviewed for reasonableness,

giving deference to the district court under “the familiar abuse-of-discretion

standard.” Gall v. United States, 128 S. Ct. 586, 594 (2007); see United States v.

Smart, ___ F.3d ___, No. 06-6120, 2008 WL 570804, at *4 (10th Cir. Mar. 4,

2008) (noting that it is now “well settled that we review a district court’s

sentencing decisions solely for abuse of discretion”). Whether the district court

treated the Guidelines as mandatory is a question of procedural reasonableness.

See Gall, 128 S. Ct. at 597 (noting that “treating the Guidelines as mandatory” is

an example of “significant procedural error” by the district court).

      The government argues, however, that Mr. O’Bryan should be required to

surmount the hurdles of plain error review. See generally United States v. Goode,

483 F.3d 676, 681 (10th Cir. 2007) (discussing elements of plain error standard).

Specifically, it asserts: “Since the defendant did not claim [at sentencing] that the

                                          -6-
district court below was violating its responsibility to use its discretion in

imposing consecutive or concurrent sentences, plain error review would be

applicable.” Aplee. Br. at 9.

      The government’s contention is not unreasonable under our general law of

forfeiture and plain error. See United States v. Romero, 491 F.3d 1173, 1178

(10th Cir. 2007) (seeking to clarify Tenth Circuit precedent by concluding that

where a defendant “did not object on procedural grounds under § 3553(a) or (c)

after the district court imposed his sentence, he has forfeited his right to appeal

this issue and our review is only for plain error”); see also United States v.

Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005) (where defendant

argued that “the district court erroneously sentenced him to consecutive sentences

under a mandatory guidelines system,” holding that “we review for plain error”

because defendant “did not raise his Booker argument in the district court”).

      However, in United States v. Tisdale, 248 F.3d 964 (10th Cir. 2001), the

defendant lodged an objection after the district court pronounced sentence that

was quite similar to the one made by Mr. O’Bryan, and we held that, although it

was “not the model of specificity,” the defendant “sufficiently raised the issue of

the imposition of a consecutive versus a concurrent sentence with the district

court.” Id. at 976. In particular, we reasoned that, although the defendant’s

objection essentially consisted of no more than a brief reminder to the court that

the defendant was “serving a State sentence” and a request that “the Court make

                                          -7-
the sentence here concurrent with the State sentence,” the objection was sufficient

to “alert the district court to the issue at hand.” Id. (internal quotation marks

omitted).

      We need not endeavor here to reconcile or harmonize Tisdale with our

other cited authorities, however. Even under the less-rigorous requirements of

abuse-of-discretion review, Mr. O’Bryan’s procedural challenge fails. Mr.

O’Bryan bases his claim that the district court understood § 5G1.3(c) to be

mandatory on two facts: (1) the district court cited no other source for its

conclusion that the sentences should run consecutively, and (2) the district court

used the phrase “this sentence is to be consecutive . . . because that’s what the

guidelines say.” R., Vol. II, Tr. at 16 (emphasis added). After reviewing the

record, we cannot agree.

      First, the record clearly reveals that the district court understood that, as a

general matter, the sentencing prescriptions of the Guidelines are not mandatory.

Indeed, prior to sentencing, the court referred to its Guidelines calculations as

“advisory.” Id. at 7-8. Then, in imposing a sentence on Mr. O’Bryan, it

considered the non-Guidelines factors of 18 U.S.C. § 3553(a) in some detail.

      Second, § 5G1.3(c) is a Guidelines policy statement, and consequently, it

has never been mandatory. See Tisdale, 248 F.3d at 978 (stating that “§ 5G1.3(c)

imposes no duty on the sentencing court”); United States v. Lee, 957 F.2d 770,

771 (10th Cir. 1992) (declaring “that the policy statements of the U.S.S.G. must

                                          -8-
be considered by the sentencing court but that they are advisory in nature”).

Indeed, the obvious presence of non-mandatory language in § 5G1.3(c) (i.e.,

“may”) and in its commentary (i.e., “recommends”) almost certainly would have

led any reader, even upon cursory inspection, to grasp § 5G1.3(c)’s non-binding

nature.

      In light of such permissive language, absent clear signs to the contrary, we

would be hard-pressed to conclude that a district court felt compelled to follow §

5G1.3(c)’s sentencing advice. Cf. Contreras-Martinez, 409 F.3d at 1243

(“Because the guidelines [in Chapter 7] governing revocation of supervised

release are policy statements, however, the district court was functioning under a

sentencing regime that even before Booker was advisory. . . . The district court

knew that it was not bound by the Chapter 7 policy statements.”). We do not find

such clear signals here in the district court’s single, brief remark that the sentence

“is to be consecutive . . . because that’s what the guidelines say.” To be sure, the

import of the remark is not entirely clear. However, one could reasonably

construe it as doing no more than describing § 5G1.3(c)’s permissive advice (i.e.,

that a sentence is to be consecutive), rather than (erroneously) acknowledging §

5G1.3(c)’s purported sentencing command. The mere fact that a district court

references the Guidelines or follows its recommendations does not mean that the

court has applied the Guidelines in a mandatory fashion. Cf. Gall, 128 S. Ct. at

596 (“As a matter of administration and to secure nationwide consistency, the

                                          -9-
Guidelines should be the starting point and the initial benchmark.”). In the

context of the record as a whole, this one brief remark does not suggest that the

district court committed procedural error by applying § 5G1.3(c) in a mandatory

fashion in sentencing Mr. O’Bryan to a consecutive sentence.

      Furthermore, we are not given pause by the fact that the district court only

cited to § 5G1.3(c) in imposing the consecutive sentence. On these facts, the

district court’s silence as to other considerations that may have supported its

action does not communicate anything meaningful concerning the issue of

mandatory application of § 5G1.3(c). Moreover, this is not a situation where we

might find error in a district court’s failure to explain its sentence; that is not Mr.

O’Bryan’s argument. Cf. Romero, 491 F.3d at 1175 (where defendant challenged

court’s “fail[ure] to explain its reason for rejecting” his argument for a below-

Guidelines sentence). Thus, we cannot conclude that the district court’s failure to

cite other grounds for its action suggests that it treated § 5G1.3(c) as anything

other than an advisory policy statement.

      Third, the parties’ conduct at the sentencing proceeding signaled to the

district court that the point of contention—the imposition of concurrent or

consecutive sentences—related to an exercise of its discretion. In making his

request for a concurrent sentence, Mr. O’Bryan directed the district court to 18

U.S.C. § 3584, which has long been interpreted as providing the statutory

foundation for an exercise of district court discretion. See, e.g., United States v.

                                          -10-
Russell, 905 F.2d 1450, 1457 (10th Cir. 1990). And, in referring to the

sentencing guidance offered by § 5G1.3(c)’s commentary, the government used

the permissive word “recommend” (that is, “the sentencing guidelines recommend

consecutive sentences with the undischarged term of imprisonment for revocation

violation”). Accordingly, the parties’ conduct communicated to the district court

the discretionary nature of the sentencing decision at issue (i.e., a consecutive

versus concurrent sentence).

      In sum, based upon our review of the record, we are confident that the

district court did not feel obliged to impose a consecutive sentence on Mr.

O’Bryan pursuant to Guidelines § 5G1.3(c). Accordingly, the district court’s

sentencing order is AFFIRMED.



                                                Entered for the Court


                                                JEROME A. HOLMES
                                                Circuit Judge




                                         -11-
