                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0542n.06

                                           No. 12-1969

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
                                                                            FILED
                                                                         Jun 03, 2013
       Plaintiff-Appellee                                 )
                                                                  DEBORAH S. HUNT, Clerk
                                                          )
v.                                                        )
                                                          )   ON APPEAL FROM THE UNITED
ANTHONY BROWN,                                            )   STATES DISTRICT COURT FOR
                                                          )   THE WESTERN DISTRICT OF
       Defendant-Appellant.                               )   MICHIGAN
                                                          )
                                                          )



       Before: KEITH, CLAY, and KETHLEDGE, Circuit Judges.


       KETHLEDGE, Circuit Judge. In 2012, Anthony Brown pled guilty to one count of

conspiracy and one count of aggravated identity theft for submitting fraudulent financial-aid

applications. At the time, Brown was serving a state sentence for his leadership of a counterfeit-

check scheme. The district court sentenced Brown to 12 months for the conspiracy, half of which

was to run consecutive to his state sentence, and 24 months for the aggravated identity theft, all of

which was to run consecutive to his state sentence. This appeal followed.

       Brown argues that the district court procedurally erred by not explaining adequately its

reasons for imposing a partially consecutive sentence for the conspiracy conviction. Ordinarily, we

review a district court’s sentencing decision for an abuse of discretion. Gall v. United States, 552
No. 12-1969
United States v. Anthony Brown

U.S. 38, 51 (2007). But we review only for plain error any argument not raised below. See, e.g.,

United States v. Harmon, 607 F.3d 233, 236–37 (6th Cir. 2010).

       Here, prior to the sentencing hearing, Brown submitted a memorandum in which he argued

that his sentence for the conspiracy count should be fully concurrent to his state sentence. After the

court announced its tentative sentence, including the partially consecutive conspiracy sentence, it

asked Brown whether he had any objections. Brown’s only response was that, for the reasons stated

in the memorandum, he objected to the partially consecutive sentence. He did not ask the court for

any additional explanation. Nor did he ask the court to discuss further the relevant statutory or

Guidelines factors. The court gave Brown two more opportunities to raise concerns about his

sentence, but on each occasion Brown said nothing. Given that Brown never objected to the district

court’s explanation of his sentence, we review the explanation only for plain error. See Harmon, 607

F.3d at 237–38.

       When a district court sentences a defendant who is subject to an undischarged term of

imprisonment, the court generally has discretion to decide whether the new sentence should run

consecutively or concurrently with the previous one. United States v. Johnson, 640 F.3d 195, 208

(6th Cir. 2011) (citing 18 U.S.C. § 3584(a)); U.S.S.G. § 5G1.3(c) (policy statement). In making that

decision, however, the court must consider the sentencing factors in 18 U.S.C. § 3553(a). 18 U.S.C.

§ 3584(a). The court should also consider the following Guidelines factors in order “to achieve a

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

       (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
       likely time to be served before release; (iv) the fact that the prior undischarged

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United States v. Anthony Brown

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

U.S.S.G. § 5G1.3 cmt. n. 3(A). After considering these factors, the court must indicate on the record

the rationale for its decision. United States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012). But the

court need not engage in a “ritualistic incantation” of the § 3553(a) or Guidelines factors. See United

States v. Watford, 468 F.3d 891, 916 (6th Cir. 2006). Instead, the record need only show that the

court turned its attention to those factors. Harmon, 607 F.3d at 239.

       Here, the record shows that the district court considered the relevant statutory and Guidelines

factors. The court discussed Brown’s extensive criminal history as well as the fact that Brown likely

intended to steal more than the $4,000 he actually received. See 18 U.S.C. § 3553(a)(1). It noted

that Brown committed the current offense while on federal supervised release, which showed “that

it was difficult to keep control of him.” See 18 U.S.C. § 3553(a)(1), (a)(2)(c). The court knew that

Brown’s undischarged sentence was imposed by a state court, that it was indeterminate, and that he

would be eligible for parole in 3 years. See U.S.S.G. § 5G1.3(c) cmt. n. 3(A)(ii)–(iv). The court also

considered the need for the sentence to reflect the seriousness of Brown’s federal crimes, as distinct

from his state crime. R. 94 at PageID# 434 (“And I just think we have an interest here . . . a

governmental interest—to let him know that we’re serious about our business.”); 18 U.S.C.

§ 3553(a)(2)(A); U.S.S.G. § 5G1.3(c)(v). Finally, the court explained that there were two factors

driving its sentencing decision: the federal interest at stake—ensuring that commission of a federal




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United States v. Anthony Brown

crime results in a distinct federal punishment—and that Brown committed the federal offense while

on federal supervised release.

        The court’s explanation made “generally clear the rationale under which it imposed the

consecutive sentence.” United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998). That is all the

court was required to do. Although it would have been preferable for the court to mention by name

the § 3553(a) factors and § 5G1.3(c) of the Guidelines, it did not plainly err by failing to do so. See

United States v. Hall, 632 F.3d 331, 335 (6th Cir. 2011); Harmon, 607 F.3d at 239; United States

v. Berry, 565 F.3d 332, 342 (6th Cir. 2009).

        Brown next challenges the substantive reasonableness of his sentence. According to Brown,

if he had been charged and convicted in federal court for both the counterfeit-check scheme and the

financial-aid conspiracy, the Guidelines range for his sentence would have been 51–57 months. But

with the partially consecutive federal sentence, Brown will have to serve a minimum of 78

months—which is “at least 21 months longer than he would have had to serve if all charges had been

brought in federal court.” Brown Br. at 12. Brown contends that the district court should have

avoided this disparity by making his conspiracy sentence concurrent. Brown raised this argument

in the district court, so we review the court’s rejection of it for an abuse of discretion. See Gall, 552

U.S. at 51.

        The court did not abuse its discretion.          Brown cites no authority to support his

argument—probably because there is none. That a federal defendant might have received a shorter

sentence had all his criminal conduct been charged in federal court has little to do with whether the

defendant’s federal sentence should be consecutive or concurrent to his undischarged state sentence.

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No. 12-1969
United States v. Anthony Brown

Cf. 18 U.S.C. § 3553(a); U.S.S.G. § 5G1.3(c). Here, the district court considered the applicable

statutory and Guidelines factors, and decided that Brown’s conspiracy sentence should be partially

consecutive to his state-court sentence. The court’s decision rested in large part on Brown’s

violation of his federal supervised release as well as the federal interest in having Brown serve at

least part of his federal sentence consecutively. Those rationales are more than sufficient to support

the conspiracy sentence. See Watford, 468 F.3d at 917. Brown’s argument to the contrary is without

merit.

         The district court’s judgment is affirmed.




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