              Case: 19-13398    Date Filed: 07/23/2020   Page: 1 of 9



                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-13398
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:19-cr-20210-JEM-1

UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

                                     versus

MONTAN TILLMAN,

                                                         Defendant - Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (July 23, 2020)

Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:

      Montan Tillman appeals his 33-month sentence for possession of a firearm

and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal,

Tillman argues that the district court committed a procedural error in imposing his
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sentence because it failed to provide sufficient justification for varying from

U.S.S.G. § 5G1.3(c), which advises that the sentence for the instant offense “shall

be imposed to run concurrently” to an anticipated state sentence. After careful

review, we affirm.

       We review a district court’s sentencing decisions, including whether to

impose a concurrent or consecutive sentence, under a deferential abuse-of-discretion

standard. Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Covington,

565 F.3d 1336, 1346 (11th Cir. 2009). The party challenging the sentence bears the

burden of showing that the sentence is procedurally unreasonable. United States v.

Hill, 783 F.3d 842, 844 (11th Cir. 2015). We review the application of U.S.S.G. §

5G1.3 de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir. 2004).

       In reviewing a sentence for procedural reasonableness, we “‘ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines range.’” United

States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Gall, 552 U.S. at 51).1


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
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Here, the relevant Sentencing Guideline provides that if “a state term of

imprisonment is anticipated to result from another offense that is relevant conduct

to the instant offense of conviction . . . , the sentence for the instant offense shall be

imposed to run concurrently to the anticipated term of imprisonment.” U.S.S.G. §

5G1.3(c) (emphases added). According to Congress, the default presumption is to

run multiple terms of imprisonment imposed at different times consecutively. See

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.”).

The Supreme Court has instructed that in the first instance, the district court, rather

than the Bureau of Prisons, should decide whether a sentence runs concurrently or

consecutively with an anticipated state sentence. See Setser v. United States, 566

U.S. 231, 242-43 (2012).

       A sentencing judge “should set forth enough to satisfy the appellate court that

he has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority,” Rita v. United States, 551 U.S. 338, 356

(2007), and “must adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair sentencing,” Gall, 552 U.S. at



offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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50. The district court is not required to discuss each § 3553(a) factor and must only

acknowledge that it considered the defendant’s arguments and those factors. United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). We may look at the record

and the context of a case to determine the district court’s reasoning in imposing a

specific sentence. Rita, 551 U.S. at 359.

      When a district court imposes a sentence outside the applicable Guidelines,

“[it] must explain why the variance is appropriate and cite ‘sufficient justifications.’”

United States v. Brown, 772 F.3d 1262, 1266 (11th Cir. 2014). A district court has

the discretion to impose a sentence outside of the Guidelines’ recommendations

based on, inter alia, a judgment by the district court that the policies behind the

Sentencing Guidelines are wrong. See Kimbrough v. United States, 552 U.S. 85,

91, 101-05 (2007). Notably, a rejection based on a policy disagreement with the

Sentencing Guidelines is generally subject to closer scrutiny on appellate review.

United States v. Irey, 612 F.3d 1160, 1188 (11th Cir. 2010). This is because the

Sentencing Commission and sentencing courts have “discrete institutional

strengths.” Kimbrough, 552 U.S. at 109. The Commission “has the capacity courts

lack to base its determinations on empirical data and national experience, guided by

a professional staff with appropriate expertise.” Id. (quotations omitted). The

sentencing judge, on the other hand, is in a superior position to apply the § 3553(a)

factors in a particular case. Id.; see also Gall, 552 U.S. at 51 (holding that the


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reviewing court “must give due deference to the district court’s decision that the §

3553(a) factors, on the whole, justify the extent of the variance”).

      Nevertheless, in Kimbrough, which involved the district court’s application

of crack cocaine guidelines, the Supreme Court indicated that a district court was

free to disagree with a guideline when that guideline reflected a policy judgment of

the Sentencing Commission rather than a Congressional directive. 552 U.S. at 109-

10; accord United States v. Vega-Castillo, 540 F.3d 1235, 1239 (11th Cir. 2008).

And later, in Pepper v. United States, the Supreme Court made clear that a district

court may, in appropriate cases, impose a non-guidelines sentence based on a

disagreement with the Commission’s views. 562 U.S. 476, 501 (2011). That is

particularly true, the Supreme Court noted, when the Commission’s views rest on a

policy rationale not reflected in the sentencing statutes Congress has enacted. Id.

      Here, the district court gave a sufficient explanation for its decision declining

to run Tillman’s sentence for the instant federal offense concurrently to his

anticipated state sentence. At the sentencing hearing, defense counsel and the

district court had a fairly detailed exchange about Tillman’s anticipated state

sentence. Defense counsel said, “I know that the probation officer appropriately

pointed out that under 5G1.3(c), I guess it works that the Court should put in the

judgment that this case should run concurrent.” The district court responded, “How

can it run concurrent to something that hasn’t happened? That’s what I don’t


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understand,” and “I think these people have too much time to come up with this

language.” The district court added that after it imposed the sentence in this case it

believed the state would likely dismiss Tillman’s pending state case.            Before

imposing the 33-month sentence, the district court declared it had “considered the

statements of all the parties, the presentence report which contains the advisory

guidelines, and the statutory factors set forth in 18 U.S.C. section 3553(a).”

      After the district court asked if Tillman had any objections, Tillman’s counsel

answered that he had no objections but that he was “worried personally about this

5G1.3(c) because I’m - - what I’m afraid is going to happen here is that if that’s not

in the judgment, which is called for by the guidelines, that something could happen

in state court where they prosecute him, where he does get a sentence and they end

up being consecutive. So I would just ask the Court to - -.” In response, the district

court directed Tillman’s counsel to ask the state court “for it to be concurrent,

because [the state court is] the one that -- I mean, I’ve already got a sentence. No, I

don’t want to do that. It bothers my sensibilities. It offends my sensibilities. Doesn’t

make sense to me.” The district court continued: “I do understand what you’re

saying. Do you know how many handwritten requests to not object to it being

concurrent I get from prison? A lot. And you know what? I always agree and I

always say I have no objection to it being concurrent, that was not my intention,

unless it was my intention to make it consecutive, in which case I say no, you’re


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stuck. It’s supposed to be consecutive. I didn’t mention it, but now that you

mentioned it, it should be consecutive. But no, I would not object to it that if it

happens.” The court again repeated that it did not think that Tillman would be

prosecuted in state court.

      When a district court imposes a sentence outside the applicable Guidelines,

“[it] must explain why the variance is appropriate and cite ‘sufficient justifications.’”

Brown, 772 F.3d at 1266. Here, the district court fulfilled this obligation in its

exchanges with defense counsel when it said that it chose not to specify that the

sentences should run concurrently; that it did not agree with the Guidelines’ rule that

an anticipated sentence should run concurrently, and that in this case, it expected

that the state would dismiss Tillman’s state case upon learning of his federal

sentence; and that if Tillman later asked the district court whether it objected to the

state and federal sentences running concurrently, the district court would not object

in Tillman’s case, even though in other cases the district court would object to it

running concurrently “now that [the defendant] mentioned it.” The district court

added that it had considered the factors enunciated in § 3553(a) as well as both the

PSI and defense counsel’s statements concerning § 5G1.3(c).

      Moreover, the Congressional directive concerning concurrent sentences is not

fully embodied by § 5G1.3.         As set forth in the statute, multiple terms of

imprisonment imposed at different times are to run consecutively unless otherwise


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ordered by the district court. 18 U.S.C. § 3584(a). Section 5G1.3(c) of the

Guidelines, however, provides that a federal sentence must run concurrently to an

anticipated state sentence, but the reason for that Guideline appears to hinge on the

view of the Sentencing Commission that courts should be aware that the benefits of

a concurrent sentence are available when a state sentence is anticipated. Because

the Commission’s view is not the same as the view of expressed in the statute, the

district court was free to disagree with the Commission’s view and impose a

sentence that did not conform to § 5G1.3(c).

      Not only was the district court’s unwillingness to apply § 5G1.3(c) a proper

exercise of discretion under Kimbrough and Pepper, the court’s decision was

reasonable under the circumstances of this case. Notably, Tillman’s pending state

case did not involve exactly the same charge as his federal case: his federal offense

covered possession of a firearm by a convicted felon, while the state case involved

additional offenses, including resisting an officer and tampering with physical

evidence. On this record, the district court did not abuse its discretion by questioning

the Sentencing Commission’s policy that advises that a defendant receive a

concurrent sentence in every federal case that involves only some relevant conduct

in a pending state case, and we affirm its decision not to run Tillman’s federal

sentence concurrently with his anticipated but not-yet-imposed state sentence.

      AFFIRMED.


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JORDAN, Circuit Judge, dissenting:

      The court affirms Mr. Tillman’s sentence because it concludes that the district

court could properly disagree with the policy behind U.S.S.G. § 5G1.3(c) and

thereby decline to run the sentence concurrent with a yet-to-be-imposed state

sentence on related charges. If the record were clear that the district court based its

decision on a policy disagreement with the Sentencing Commission, I too would

affirm.

      But the ground on which the district court relied is not at all apparent from the

sentencing transcript. The district court (a) indicated that it could not impose a

sentence that would be concurrent with a sentence that had not yet been imposed in

state court, (b) suggested that Mr. Tillman had to ask the state court for a concurrent

sentence, (c) and said that the federal sentence was “supposed to be consecutive.”

Given these comments, I do not place too much weight on the district court’s

additional statement that a concurrent sentence would “offend[ ] my sensibilities.”

      I would remand so that the district court could tell us the reason for not

imposing a concurrent sentence. That way we would have a sufficient record to

allow us to meaningfully review the district court’s exercise of its authority. See

Rita v. United States, 551 U.S. 338, 356 (2007).




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