              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0587n.06

                                        No. 09-6455

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                 Aug 19, 2011
UNITED STATES OF AMERICA,
                                                                           LEONARD GREEN, Clerk
       Plaintiff-Appellee,

              v.                                                On Appeal from the United
                                                                States District Court for the
CARLOS YOUNG,                                                   Western District of
                                                                Tennessee at Memphis
       Defendant-Appellant.


                                                         /

Before:       BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           D efendant C arlos Y ou n g a p p e a ls th e

sentence imposed by the district court following his plea-based conviction of being a felon

in possession of ammunition, in violation of 18 U.S.C. § 922(g). Young asserts the district

court’s decision to make his federal sentence consecutive to, rather than concurrent with, his

sentence for a state parole violation was procedurally unreasonable. Finding the sentence to

be reasonable, we affirm.

                                              I.

       In July 2009, under a Fed. R. Crim. P. 11 plea agreement with the government, Young

pleaded guilty to being a felon in possession of one round of ammunition. The document
No. 09-6455                                                                                 2

stated the government’s agreement to a sentence of 180 months of imprisonment, the

statutory minimum.

       The presentence report (PSR) prepared by the probation department classified Young

as an “Armed Career Criminal,” and assigned him a total offense level of 31 and a criminal

history category of VI.    This resulted in a guideline range of 188 to 235 months of

imprisonment.

       At sentencing, the district court adopted the facts and calculations in the PSR, and

thoroughly considered the relevant 18 U.S.C. § 3553(a) factors. Ultimately, after stating its

concerns about whether the below-guidelines sentence in the plea agreement was appropriate

under the circumstances, the district court sentenced Young to 180 months of incarceration.

       Following that pronouncement, Young’s counsel asked the district court to address

whether the 180 months would run partially or wholly concurrent with or consecutive to a

state sentence then being served by Young. In response, the district court first asked about

the state court sentence being served, which was a sentence for a parole violation based on

the federal court conviction. The district court then asked the defendant how long the state

court sentence was, to which the defendant answered three years. The following discussion

ensued:

               The Court: That’s what I thought, okay. Let me explain how it is
       normally done. Normally, the situation is this: You were on supervision from
       the state, and you violated that supervision, that’s different from committing
       this offense. They’re punishing you because you violated a condition of your
       supervision. We usually regard that consecutive matters because you messed
       up twice. You violated a condition over here, rules that you couldn’t break,
       and then over here, you violated a federal law, so that’s why you’re over here.
       So there’s two different things, and normally they would be consecutive and
No. 09-6455                                                                               3

      not concurrent comment [sic] terms. I don’t know that anybody here–let me
      check one thing, I thought this was usually–I think that’s what the report said
      too. Let me check that. Does the officer --

              [Counsel for Defendant]: Look at the second addendum, Your Honor.

             The Court: That’s what I thought too. Let me get it out here. Yeah,
      that’s what I needed. Right, it may run concurrently, partly concurrently or
      consecutively to the prior undischarged period of imprisonment to achieve
      reasonable punishment for the instant offense, and that’s 5G1.3(c). The
      government took no position on this in the case. What Ms. Randle-Holt is
      asking me to do, very appropriately, she is asking me to run this concurrently
      because of her view that you’re going to do better than most people we see
      here. Now, often the government takes the position that it should be
      consecutive, so I don’t know what the government’s position is.

            [Counsel for the Government]: Your Honor, in this case, we would
      submit it to the court to make the decision.

            The Court: Well, it looks like that – let me recheck that, but – don’t
      disappoint me. You could really disappoint us on this one, okay?

              The Defendant: Yes, sir.

            The Court: That’s what she is saying, she wants to try – let me
      recheck one part of the guidelines. We will take a look at it and --

              The Probation Officer: Your Honor, it is found in the application
      note.

              The Court: Yes, yes. Which one?

              The Probation Officer: 5G1.3(c).

             The Court: 3(c), right. Subsection (c) applies in cases in which the
      defendant was on federal or state probation, parole or supervised release at the
      time of the instant offense and has had such probation, parole or supervised
      release revoked. Consistent with the policies set forth in application note four
      and subsection (f) of Section 7B1.3, revocation of probation or supervised
      release, the commission recommends that the sentence for the instant offense
      be imposed consecutively to the sentence imposed for the revocation, and
      that’s what I was referring to earlier. I think the fact was that had I not – had
No. 09-6455                                                                                                 4

        we not had this discussion, it would have been consecutive anyway. That’s
        what I thought. I thought we were doing a consecutive sentence. It should be
        consecutive. You have gotten – it was an appropriate determination on the 180
        months, but they are different offenses, and for the reasons that we talked
        about, including the guidelines themselves, they should be separate. Now, I
        don’t know when the state will release you. You won’t be doing your – I don’t
        know, sometimes they do the whole time, it is usually hard time when you go
        back, is that going to be straight time?

                The Defendant: I think I go back up for parole in October of 2010.

        The district court then confirmed again that its sentence was to be served

consecutively to Young’s state sentence, and asked the parties if there was “[a]nything else

we need to do?” The Government replied “[n]o, your honor.” Nothing was said by the

defense. This appeal followed.

                                                     II.

        Young asserts that the district court’s decision to impose a consecutive, rather than

concurrent, sentence was procedurally unreasonable. A district court’s decision to impose

a consecutive or concurrent sentence is reviewed for abuse of discretion. See United States

v. Hall, 632 F.3d 331, 335 (6th Cir. 2011).1 The district court will not abuse its discretion

if it “makes generally clear the rationale under which it has imposed the consecutive sentence

and seeks to ensure an appropriate incremental penalty for the instant offense.” United States

v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009) (quoting United States v. Owens, 159 F.3d



        1
          The government points out our statement in United States v. Berry, 565 F.3d 332, 342 (6th Cir.
2009) that “[a] challenge to a court’s decision to impose a consecutive or a concurrent sentence is not easily
classified as ‘substantive’ or ‘procedural.’” Because the government concedes that the district court’s words
“anything else we need to do?” were insufficient under United States v. Bostic, 371 F.3d 865, 872 (6th Cir.
2004), and that our review is for abuse of discretion rather than plain error, whether this falls under the
“procedural” or “substantive” category is of no import to this decision.
No. 09-6455                                                                                    5

221, 230 (6th Cir. 1998)). As a general proposition, the sentencing court should make

explicit reference to the pertinent United States Sentencing Guidelines provision concerning

consecutive versus concurrent sentences. See United States v. Coleman, 15 F.3d 610, 613

(6th Cir. 1994). Specific reference is not required, however, if other evidence in the record

shows the sentencing court considered the applicable section. See United States v. Berry,

565 F.3d 332, 342-43 (6th Cir.), cert. denied, 130 S. Ct. 275 (2009).

       Young’s first argument is that the district court treated the United States Sentencing

Guidelines as “de facto mandatory,” rather than as a recommendation. He supports this

argument by pointing to the district court’s language in referencing defense counsel’s request

as “appropriate,” and asking Young not to “disappoint us.”            Young asserts that after

indicating, in this fashion, its intention to impose a concurrent sentence, the district court

then took a 180-degree turn in making the sentence consecutive. Young contends this

happened only after the district court read Application note 3(C) to U.S.S.G. § 5G1.3 aloud,

and changed its position to conform to the recommendation without any analysis of the case

before it.

       Although we acknowledge that the district court at first appeared inclined to grant

Young’s counsel’s request to impose a concurrent sentence, it is clear from examining the

transcript of the proceedings that the district court then very deliberately came to the opposite

conclusion. While Young argues that the shift in position by the district court demonstrates

that it considered the guidelines to be mandatory, we do not agree. The district court’s

reference to the commission’s “recommendation,” and statement that the sentences, like the
No. 09-6455                                                                                  6

offenses, “should be separate,” demonstrate to us that the district court did not consider the

guidelines a mandate.

       Young’s remaining arguments are that the district court failed to consider the

appropriate factors in imposing a consecutive sentence, and did not explain what, if any,

factors it did consider. Young cites Johnson, 553 F.3d at 998 (quoting United States v.

Covert, 117 F.3d 940, 945 (6th Cir. 1997)): “the record on appeal should show that the

district court turned its attention to § 5G1.3(c) and the relevant commentary in its

determination of whether to impose a concurrent or consecutive sentence.” The government

does not disagree with this authority.

       Section 5G1.3(c) provides that the district court has the discretion to run a sentence

“concurrently, partially concurrently, or consecutively to [a] prior undischarged term of

imprisonment.” The pertinent commentary is contained in Application Notes 3(A) and 3(C).

Note 3(A) lists five factors for the district court to consider “[i]n order to achieve a

reasonable incremental punishment for the instant offense and avoid unwarranted disparity”:

       (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
No. 09-6455                                                                                                  7

        (v) any other circumstance relevant to the determination of an appropriate
        sentence for the instant offense.

U.S.S.G. § 5G1.3, comment (n.3(A)). Application Note 3(C) states the Commission’s

recommendation that a sentence be imposed consecutively to any sentence imposed for a

revocation for federal or state probation, parole, or supervised release.

        Although Young contends that the district court failed to consider the factors listed

above, the record demonstrates otherwise. The district court first reviewed the circumstances

of the offense, discussed Young’s background and criminal history, and also carefully

considered testimony about Young’s alcohol abuse given by an expert witness presented by

the defense. The district court was very careful to determine that the 180-month sentence,

eight months below the bottom of the guideline range, would be appropriate under the

circumstances, rather than create sentencing disparities. These proceedings satisfied the

court’s requirement to consider § 3553(a) factors and met the guidelines’ recommendation

in factor (i) of Application Note 3(A).2 The district court then sought specific information

about the three-year state court sentence, satisfying Application Note 3(A) factors (ii), (iii),




        2
         While the district court did not again specifically invoke § 3553(a) factors in connection with its
decision to impose a consecutive sentence, it implied that it had already given the defendant a break in
imposing a below-guidelines sentence. It then referred to the “reasons we talked about,” and the “guidelines
themselves” in making the consecutive vs. concurrent decision. The district court thereafter discussed on
the record the defendant’s ability to earn 54 days of “good time” for each year of incarceration in the federal
system, and was clear in its desire to begin running the 180 months of imprisonment after his release from
the three-year state sentence. District courts have no “distinct obligation” to conduct a separate § 3553(a)
analysis in deciding the concurrent or consecutive nature of a sentence. See Berry, 565 F.3d at 343.
No. 09-6455                                                                                                  8

and (iv), above.3 The district court, in this fashion, demonstrated that it was considering

whether its consecutive sentence represented appropriate incremental punishment.

        Although the district court may have seemed poised, initially, to grant the defense’s

request to impose a sentence concurrent to Young’s state sentence for a violation of his

parole, the fact that the district court reversed course, said misleading words, or changed its

mind altogether does not amount to an abuse of its discretion. Likewise, any ongoing or even

last-minute deference the district court may have given to the recommendation of the U.S.

Sentencing Commission was a permissible exercise of discretion. While the district court’s

determination on the consecutive nature of its sentence might have been made more clear

with additional explanation, we are satisfied that the district court considered the required

factors prior to making its pronouncement. The sentencing proceeding came to a conclusion

with the district court clearly articulating the sentence that it chose, under the circumstances,

for Mr. Young.        The district court did not make any procedural error, and carefully

considered both the 18 U.S.C. § 3553(a) and U.S.S.G. § 5G1.3(c) Application Note 3A

factors in formulating a reasonable sentence.

        The district court is AFFIRMED.




        3
          Although Young asserts that the district court’s recitation at sentencing of a portion of Application
Note 3(C), rather than 3(A), demonstrates that it did not even consider Note 3(A), the record reveals that the
district court did in fact consider the factors contained in Note 3(A).
No. 09-6455                                                                                   9

       KAREN NELSON MOORE, Circuit Judge, dissenting. Because the district court

did not explain adequately his reasoning for imposing a consecutive sentence, I respectfully

dissent. Although required to consider the 18 U.S.C. § 3553 factors in his determination of

whether to impose a concurrent or consecutive sentence, the district court failed to mention

any of the § 3553(a) factors in this context, much less indicate how they impacted his

decision to impose a consecutive sentence. Even without a “distinct obligation” to conduct

a separate § 3553(a) analysis for this purpose, United States v. Berry, 565 F.3d 332, 343 (6th

Cir. 2009), a sentencing court must “make[] generally clear the rationale under which it has

imposed the consecutive sentence,” United States v. Johnson, 553 F.3d 990, 998 (6th Cir.

2009) (quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)). The district court

gave no indication that the § 3553(a) factors he considered in fashioning the initial sentence

also supported his decision to impose a consecutive sentence. Instead, the consecutive-

sentence determination was entirely “divorced . . . from [the] analysis of the rest of the terms

of [Young’s] sentence.” United States v. Ross, 375 F. App’x 502, 507 (6th Cir. 2010)

(unpublished opinion).

       Rather than engaging in an individualized application of § 3553(a) factors to the

specific facts of the case, the district court seemed to rely entirely on the recommendation in

the sentencing guidelines that Young’s sentences be consecutive.            The district court

discussed “only . . . the court’s concern that a concurrent sentence would preclude an

incremental penalty,” which on its own is insufficient to justify consecutive sentences.

United States v. Clark, 385 F.3d 609, 625 (6th Cir. 2004). Thus, the district court’s
No. 09-6455                                                                           10

statements do not provide us with a sufficient “rationale under which it has imposed the

consecutive sentence,” and upon which we base our review. Johnson, 553 F.3d at 998. I

would remand so that the district court could properly consider the § 3553(a) factors and

explain its rationale for imposing a consecutive sentence.
