                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2008
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Jody Lee Davis

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                              Submitted: May 9, 2017
                               Filed: June 12, 2017
                                 ____________

Before RILEY and BEAM, Circuit Judges, and ROSSITER,1 District Judge.
                             ____________

ROSSITER, District Judge.




      1
       The Honorable Robert F. Rossiter, Jr., United States District Judge for the
District of Nebraska, sitting by designation.
      Jody Lee Davis (“Davis”) appeals from the district court’s2 decision to impose
a 210-month prison sentence and recommend that his federal sentence be served
consecutively to potential future state court sentences. For the reasons stated below,
we affirm Davis’s sentence.

I.    BACKGROUND
      In 2012 and 2013, Davis was convicted in Iowa state court of numerous crimes,
including one count of identity theft, one count of burglary, two counts of theft, and
ten counts of forgery. On February 4, 2015, an Iowa state court sentenced Davis to
suspended sentences for all of those crimes and placed him on probation.

       After being indicted in federal court on methamphetamine charges, Davis pled
guilty on November 16, 2016 to Attempted Manufacture and Aiding and Abetting the
Manufacture of Methamphetamine. Davis was sentenced on April 12, 2016. At the
time of sentencing, probation-revocation proceedings were pending in Iowa state
court based on the methamphetamine arrest. After discussing the 18 U.S.C. § 3553(a)
factors, the district court noted that state-court probation revocation proceedings were
pending but specifically stated, “I did not consider the pending cases in deciding on
a disposition.” The district court sentenced Davis to 210 months in prison,
recommending to the Bureau of Prisons that the sentence be served consecutively to
any term of state imprisonment resulting from the probation revocation.

      It is clear that the district court has the discretion to “order that [Davis’s]
sentence run consecutively to his anticipated state sentence in the probation
revocation proceeding.” Setser v. United States, 566 U.S. 231, 244-45 (2012). This
case presents the novel issue of whether it is error for a district court to explicitly not



      2
       The Honorable Linda R. Reade, United States District Court for the Northern
District of Iowa.

                                           -2-
consider the possibility of a state court sentence when ordering that a federal sentence
be consecutive to any possible state-court sentence.

II.    DISCUSSION
       Davis argues his sentence is substantively unreasonable because the district
court failed to consider the potential state prison time. The government claims that
Davis’s argument is really one of procedural error.3 After careful review, we
conclude the district court neither procedurally erred in determining Davis’s sentence
nor imposed a substantively unreasonable sentence.

       A.      Standards of Review
       Because Davis failed to object to any procedural error, we review for plain
error. United States v. Cottrell, 853 F.3d 459, 462 (8th Cir. 2017). “To establish
plain error, [a defendant] must prove (1) there was error, (2) the error was plain, and
(3) the error affected his substantial rights.” Id. (quoting United States v. Grimes, 702
F.3d 460, 470 (8th Cir. 2012)).

       “We review the substantive unreasonableness of sentences under a standard
akin to an abuse-of-discretion standard, cognizant that it will be the unusual case
when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.” United States v.
Edwards, 820 F.3d 362, 366 (8th Cir. 2016) (quoting United States v. Sayles, 754
F.3d 564, 567 (8th Cir. 2014)). “A sentence may be unreasonable if the district court
fails to consider a relevant factor which should have received significant weight;
gives significant weight to an improper or irrelevant factor; or considers the
appropriate factors but commits a clear error of judgment.” Id.




      3
          Davis insists his claim is based solely on substantive unreasonableness.

                                           -3-
       B.    Procedural Error
       Davis claims United States Sentencing Guideline § 5G1.3 obligates the district
court to examine the length of potential future state terms of imprisonment.
According to Davis, by failing to perform this examination, the district court violated
the requirement in 18 U.S.C. § 3553(a) to craft “a sentence sufficient, but not greater
than necessary, to comply with purposes” of sentencing. Davis provides no authority
to support his novel interpretation of § 5G1.3.

      Section 5G1.3(a) applies when “the instant offense was committed while the
defendant was serving a term of imprisonment . . . or after sentencing for, but before
commencing service of, such term of imprisonment.” In both cases, the sentences
should run consecutively. Whether or not § 5G1.3(a) applies, the district court could
not have violated it by imposing the sentence consecutively.4

       The next two subsections of § 5G1.3, (b) and (c), deal with situations where the
other term of imprisonment results from relevant conduct to the instant offense of
conviction. These subsections do not apply because the prior convictions for theft,
burglary, and forgery are not relevant conduct to the making of methamphetamine,
and the fact that an offense also results in a revocation of probation “does not make
the state conviction ‘relevant conduct’ to the federal conviction.” United States v.
Jones, 628 F.3d 1044, 1049 (8th Cir. 2011).5




      4
       This subsection could arguably be applicable in this case because the crimes
were committed after the imposition of a suspended sentence but before Davis began
serving it. See United States v. Murphy, 69 F.3d 237, 246 n.8 (8th Cir. 1995).
      5
       The district court did make the federal sentence concurrent to any sentence
imposed in two state court cases involving relevant conduct, that is, the manufacture
of methamphetamine and the possession of drug paraphernalia.

                                         -4-
       Davis turns to the final subsection, § 5G1.3(d), which provides, “In any other
case involving an undischarged term of imprisonment, the 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.”6 See 18 U.S.C. § 3584. He argues that § 5G1.3(d) requires
the district court to at least consider the potential state term of imprisonment.
However, by its express language, this subsection only applies to cases where there
are currently existing undischarged terms of imprisonment, not potential future terms
of imprisonment. See Setser, 566 U.S. at 237-39 (acknowledging that § 3584 does
not apply to scenarios in which the state term of imprisonment has not yet been
imposed).

      Davis has failed to provide any authority requiring the district court to weigh
the possibility of future state prison terms. The district court considered all the
relevant § 3553(a) factors “available at the time of sentencing.” Setser, 566 U.S. at
244. The district court did not err by expressly not considering the fact that Davis’s
probation could possibly be revoked.

      C.     Substantive Unreasonableness
      Davis argues his sentence is substantively unreasonable because the district
court failed to consider the relevant § 3553(a) factors. “Because we previously
concluded the district court considered all of the § 3553(a) factors, [Davis’s]
substantive unreasonableness argument is without merit.” United States v. Lewis, 557
F.3d 601, 615 (8th Cir. 2009).



      6
       Application Note 4(c) to § 5G1.3(d) recommends that the federal sentence run
consecutively to a state sentence imposed after revocation of probation. While this
note only specifically applies to cases where the state revocation occurs before the
federal sentencing, the purpose of punishing crimes more seriously when committed
during probation would still apply in this case.

                                         -5-
III.   CONCLUSION
       We affirm Davis’s sentence.
                      ______________________________




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