                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0492n.06
                                                                                           FILED
                                           No. 09-2506
                                                                                       Jul 18, 2011
                          UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
FREDERICK SUTTON,                                        )                  OPINION
                                                         )
       Defendant-Appellant.                              )



BEFORE: NORRIS, ROGERS, and GRIFFIN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Frederick Sutton pleaded guilty to one count

of bank robbery, 18 U.S.C. § 2113(a), in exchange for the dismissal of a second count that charged

him with transportation of stolen property, 18 U.S.C. § 2314. At the sentencing hearing, the district

court sentenced defendant to 120 months of incarceration. It also stated that, “[o]f necessity, this

sentence must be consecutive to the state sentence which apparently has been imposed or is to be

imposed as a result of the underlying convictions.” There are two problems with this pronouncement

that require a limited remand: first, the district court appears to have felt constrained to impose

consecutive sentences; second, it lacked the authority to impose a federal sentence that runs

consecutively to a not yet imposed state sentence.

       Prior to sentencing, the district court received a Presentence Investigation Report (“PSR”)

prepared by a United States probation officer. The PSR noted that by committing the instant federal
No. 09-2506
United States v. Sutton

offense, defendant violated terms of his parole for several state convictions. However, at the time

of his federal sentencing, he had yet to be sentenced for any state parole violation.

       The district court convened a sentencing hearing on November 24, 2009. It imposed the

sentence described above. Defense counsel lodged no objection to the sentence. When a party fails

to object to a defect in sentencing despite being given the opportunity do so, as is the case here, we

review a challenge to the sentence for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th

Cir. 2008) (en banc). To show plain error, a defendant must point to the following:

       (1) an error, (2) that is plain, and (3) that affects his fundamental rights. If the
       defendant satisfies these three conditions, we may exercise our discretion to correct
       the error only if the error seriously affected the fairness, integrity, or public reputation
       of the judicial proceedings.

United States v. Vasquez, 560 F.3d 461, 470 (6th Cir. 2009) (citations omitted).

       We turn first to the comment of the district court that it must “of necessity” impose

consecutive sentences. In a case remarkably similar to this one, we observed that U.S.S.G. §

5G1.3(c), which the guidelines designates a policy statement, provides that “[i]n 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.” United States v. Gibbs,

506 F.3d 479, 487 (6th Cir. 2007). In light of this language, we went on to conclude “the district

court’s statement that [defendant’s] federal sentence must be consecutive to his state sentence

constitutes plain error.” Id. at 488. Because the district court erroneously believed that an aspect




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of the guidelines was mandatory when it was not, there is a presumption of prejudice to the

defendant and a remand for resentencing is required. Id.

        As in this case, the defendant in Gibbs had yet to be sentenced for his state parole violation.

While that consideration did not factor into our analysis in Gibbs, we have held elsewhere “that 18

U.S.C. § 3584(a) does not authorize district courts to order a sentence to be served consecutively to

a not-yet-imposed state sentence.” United States v. Quintero, 157 F.3d 1038, 1039 (6th Cir. 1998)

(footnote omitted). Thus, in the instant case, the district court’s pronouncement that defendant’s

federal sentence shall run consecutively to “the state sentence which . . . is to be imposed as a result

of underlying convictions” constituted plain error. The district court corrected that misstatement in

its written judgment, which was signed on the day of the sentencing hearing. It reads in part: “The

sentence shall run consecutively to any state court sentence now being served.” However, where

there is a discrepancy between an orally imposed sentence and the written judgment, the oral

sentence generally controls. United States v. Cofield, 233 F.3d 405, 406-07 (6th Cir. 2000).

        How to proceed? Neither party disputes that at the time of sentencing no state sentence had

been imposed on defendant. Thus, the prejudicial effect of the oral sentence would appear to be non-

existent and remand therefore unnecessary. Likewise, the district court’s erroneous belief that it was

obliged to impose consecutive sentences would have had no adverse consequences for defendant

because there was no existing state sentence which would delay the commencement of his federal

sentence. That said, in both Quintero and Gibbs we remanded for resentencing under circumstances

similar to those here. For the sake of consistency, we will remand this case to afford the district

court the opportunity to determine, first, whether any state sentence existed at the time the federal

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United States v. Sutton

sentence was imposed. Assuming that no such sentence existed, the district court shall amend its

judgment to reflect that fact. If, which seems unlikely, such a state sentence did exist, then the

district court shall resentence defendant recognizing that it has the authority to run the federal

sentence “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), p.s.

       The judgment is vacated and the matter remanded for proceedings consistent with this

opinion.




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       GRIFFIN, Circuit Judge, concurring in part and dissenting in part.

       I concur in the majority opinion, except I respectfully dissent regarding the remedy. In my

view, our established precedent requires us to remand for resentencing, rather than to remand for

amendment of the judgment.

       The present case and United States v. Gibbs, 506 F.3d 479 (6th Cir. 2007) are substantially

similar. In Gibbs, “[a]t the time Gibbs was indicted for the [federal] offense, he was in the custody

of the Michigan Department of Corrections for violating the terms of his state parole.” Id. at 487.

Like defendant Sutton, “Gibbs had not yet been sentenced for the parole violation when he was

sentenced by the district court.” Id. Nevertheless, the same district judge who would later sentence

defendant Sutton stated in Gibbs that, under § 5G1.3(c), the federal sentence he was imposing “must

be consecutive to the state sentence which has underlying violations of parole not necessarily related

to this case.” Id. (internal quotation marks omitted).

       In our published, and therefore precedentially-binding opinion in Gibbs, we ruled that the

district court committed plain error because the explicit language of § 5G1.3(c) is clearly permissive,

granting the district court discretion regarding how to impose a sentence. Id. at 487-88. Most

importantly, we held that “where the district court believes that an aspect of the Guidelines is

mandatory, there is a presumption of prejudice to the substantial rights of the defendant, and a

remand for resentencing is required.” Id. at 488 (emphasis added); see also United States v.

Bowman, 634 F.3d 357, 362 (6th Cir. 2011) (reversing the same district judge for again failing to

recognize his discretion under § 5G1.3(c) and remanding for resentencing). In Gibbs, we explained

“that prejudice is presumed because the district court’s failure to recognize its discretion in

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sentencing renders it impossible for the defendant ‘to show that the subjective decision of the court

would have been different if the error had not occurred[.]’” Id. (quoting United States v. Trammel,

404 F.3d 397, 402 (6th Cir. 2005)).

       Although not directly addressed by the Gibbs court, the district court in Gibbs, like the

district court here, also erred when it ordered the defendant’s federal sentence be served

consecutively to a state sentence that had not yet been imposed. See United States v. Quintero, 157

F.3d 1038, 1039 (6th Cir. 1998) (“We hold that 18 U.S.C. § 3584(a) does not authorize district

courts to order a sentence to be served consecutively to a not-yet-imposed state sentence.”).

However, a compound error does not alter the appropriate remedy. In both Gibbs and Quintero, we

held that the required remedy was resentencing. See Quintero, 157 F.3d at 1041 (“[T]he District

Court erred when it ordered the defendant’s sentence to be served consecutively to a yet to be

imposed state sentence. We remand to the District Court for sentencing consistent with this

opinion.”); Gibbs, 506 F.3d at 488.

       In the present case, the majority declines to follow our well-settled precedent requiring a

remand for resentencing. Therefore, I must respectfully dissent in part. I would vacate the district

court’s judgment and remand for resentencing as mandated by Gibbs, Quintero, and Bowman.




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