                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0287n.06

                                           No. 13-3825

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                   Apr 16, 2014
UNITED STATES OF AMERICA,                               )                     DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE NORTHERN DISTRICT OF
LIONEL D. RUTHERFORD,                                   )   OHIO
                                                        )
       Defendant-Appellant.                             )
                                                        )
                                                        )


       BEFORE: COLE and SUTTON, Circuit Judges; CLELAND, District Judge.

       PER CURIAM.           Lionel Rutherford challenges the district court’s imposition of a

consecutive sentence as procedurally unreasonable. We affirm.


       In a written plea agreement, Rutherford pled guilty to three counts of bank fraud in

violation of 18 U.S.C. § 1344. He committed these offenses while on release pending his

sentencing and self-surrender to the Bureau of Prisons following a guilty plea in a separate

federal bank-fraud case. The district court sentenced Rutherford to 40 months in prison, and the

court ordered that this sentence run consecutively to the 43-month sentence imposed in the other

case. On appeal, Rutherford contends that the district court failed to provide a clear rationale for

imposing a consecutive sentence, making his sentence procedurally unreasonable.




 The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-3825
United States v. Rutherford

       In reviewing a sentence for procedural reasonableness, we must ensure that the district

court “adequately articulated its reasoning for imposing the particular sentence chosen.” United

States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). “The 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). Because Rutherford failed to object to the adequacy of the district

court’s explanation for his sentence, we will second-guess the court only if it plainly erred.

United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc).


       We find no error, plain or otherwise. A district court need not give a “specific reason”

for a consecutive sentence, United States v. Johnson, 640 F.3d 195, 208–09 (6th Cir. 2011), so

long as it “makes generally clear the rationale under which it has imposed the consecutive

sentence,” United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998) (emphasis added). The

district court’s explanation meets this mark. The court noted that it “ha[d] full discretion” to

impose a concurrent or consecutive sentence, R. 159 at 7, it reviewed Rutherford’s lengthy

criminal history and the nature of his crimes, and it only then concluded:

       So, it appears to me as if every time you have been on probation, every time you
       have been on supervised release or on bond, you just continue to commit offense
       after offense after offense, and they all seem to be of that theft variety. So clearly,
       you are not fearful of consequences of appearing for court.

       Therefore, it is the judgment of this court that you be committed to the custody of
       the Bureau of Prisons to be imprisoned for a term of 40 months on each count, to
       be served concurrently. However, consecutive to the time you are presently
       serving.

Id. at 19 (emphasis added). From context, it is clear that “[t]he district court’s determination of

the length of [Rutherford’s] sentence and [her] decision to impose the sentence consecutively to

the undischarged [federal] sentence were intertwined.” Johnson, 640 F.3d at 208. Rutherford, in

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No. 13-3825
United States v. Rutherford

other words, was a serial recidivist, and the court considered a lengthy, consecutive sentence the

best way “to satisfy the purposes of sentencing.” R. 159 at 21.


       United States v. Cochrane does not change our analysis. In that case, we reaffirmed our

prior decisions in Johnson, Owens and the like, finding that a district court may explain its

consecutive-sentence rationale in any number of ways—but “[w]hat [it] may not do is say

nothing at all.” 702 F.3d 334, 346 (6th Cir. 2012). But Cochrane is not this case. For one thing,

Cochrane involved abuse-of-discretion review, not the more difficult (for Rutherford) plain-error

standard. For another, the district court in that case failed to consider any of the sentencing

factors in 18 U.S.C. § 3553(a) when imposing its consecutive sentence: not the defendant’s

background, not his criminal history, not the nature of his offense. Id. at 346–47. Here, by

contrast, the court discussed exactly those factors—and more. It described Rutherford’s long list

of crimes and the nature of those crimes, see 18 U.S.C. § 3553(a)(1), it discussed the need to

deter Rutherford from future misconduct, see id. § 3553(a)(2), it acknowledged its ability to run

Rutherford’s sentences concurrently or consecutively, see id. § 3553(a)(3), and it referenced the

Sentencing Guidelines policy statement that supported a consecutive sentence in Rutherford’s

case, see id. 3553(a)(5). This is far from saying “nothing.”


       Rutherford adds that the district court should have emphasized several other factors

raised by counsel at his sentencing hearing, including his “family life and obligations” and

“potential disparities between the district court’s consecutive sentence and other defendants.”

App. Br. at 18. But sentencing courts are allowed to emphasize certain factors and downplay

others. See United States v. Bridgewater, 479 F.3d 439, 442 (6th Cir. 2007). And “a district

court does not commit reversible error simply by attaching great weight to a single factor.”


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No. 13-3825
United States v. Rutherford

United States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (internal quotation marks and

alterations omitted). “Where—as here—a district court explicitly or implicitly considers and

weighs all pertinent factors, a defendant clearly bears a much greater burden in arguing that the

court has given an unreasonable amount of weight to any particular one.” Id. (internal quotation

marks omitted). Rutherford has not met this burden.


       Rutherford’s challenge fails for another reason. Even if the district court could have said

more to explain its thinking, Rutherford has not shown that the court’s explanation caused him

prejudice. According to the Sentencing Guidelines, “[i]f the instant offense was committed . . .

after sentencing for, but before commencing service of, [a] term of imprisonment, the sentence

for the instant offense shall be imposed to run consecutively to the undischarged term of

imprisonment.” U.S.S.G. § 5G1.3(a) (emphasis added). And here, Rutherford committed his

three bank-fraud offenses while on release after sentencing and pending self-surrender in a

separate federal case. Rutherford therefore received the sentence advised by the guidelines, and

he has not presented any evidence that the court’s error—if indeed there was one—affected his

substantial rights. See United States v. Olano, 507 U.S. 725, 734 (1993) (“It is the defendant

rather than the Government who bears the burden of persuasion with respect to prejudice.”);

United States v. Fears, 514 F. App’x 579, 583 (6th Cir. 2013).


       For these reasons, we affirm.




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