               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0273n.06

                                         No. 13-3812
                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                        Apr 14, 2014
                              FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
              v.                                       )       COURT     FOR      THE
                                                       )       SOUTHERN DISTRICT OF
DELMAIN FANNIN,                                        )       OHIO
                                                       )
       Defendant-Appellant.                            )
                                                       )




BEFORE: SUHRHEINRICH, ROGERS, and SUTTON, Circuit Judges.

       ROGERS, Circuit Judge. While on supervised release, Delmain Fannin robbed a bank.

As a result, the district court revoked Fannin’s supervised release and sentenced him to 18

months of imprisonment, to be served concurrently with the 84-month prison term imposed

separately for his bank robbery conviction. Fannin challenges the district court’s decision to

impose consecutive sentences, arguing that the court gave no explanation for that decision and

thus appellate review is impossible. Because the district court provided an adequate explanation

for the sentence imposed by making it clear that the court’s reasons were the same for choosing

Fannin’s substantive sentence and for running the two sentences consecutively, the imposition of

consecutive sentences was procedurally reasonable.
No. 13-3812
United States v. Fannin

       In 2005, Fannin pled guilty to one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. §922(g) and §924(a)(2), and was sentenced to 84 months of imprisonment

and a three-year term of supervised release. In 2012, while Fannin was on supervised release, he

pled guilty to two counts of bank robbery under 18 U.S.C. § 2113(a), for which he was sentenced

to 84 months of imprisonment and a three-year term of supervised release. On October 9, 2012,

a Petition for Warrant was filed, alleging that Fannin had violated the conditions of his

supervised release by committing a bank robbery.

       At his revocation hearing on October 16, 2012, Fannin admitted that the bank robbery

constituted a violation of the conditions of his supervised release. Before imposing Fannin’s

sentence upon revocation of supervised release, the court observed that Fannin’s decision to rob

the bank “obviously wasn't well-reasoned and [] was based upon a constellation of impairments.”

The court noted that “[Fannin’s] actions were based more on impaired judgment than any

intention to commit an act motivated by greed, [but . . . w]hether someone acts to rob a bank

through impaired judgment or greed, the safety of the community is equally at risk. The only

way I know to address this is to follow Dr. [Massimo] De Marchis’s recommendation.” 1 The

district court acknowledged that the policy Guidelines for supervised release violations were




       1
         The court ordered Dr. De Marchis to render an opinion as to Fannin’s mental status as
well as prognosis and treatment for any mental status found. The report from Dr. De Marchis’s
mental status evaluation of April 29, 2013, is not in the record, but was discussed by the parties
via teleconference and at Fannin’s sentencing hearing. Fannin’s counsel agreed with Dr. De
Marchis’s finding that Fannin has a history of engaging in co-dependent relationships, that such
co-dependency led him down a “dangerous path,” and that counseling to address his anger
management and co-dependencies might return Fannin to the “path to make the right decisions.”

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No. 13-3812
United States v. Fannin

“advisory only,” and reviewed the factors of sentencing set forth in 18 U.S.C. § 3553(a). The

court stated:

       I believe the safety of the community is at risk from this Defendant. I believe the
       public’s interest in fair punishment, in rehabilitation, and in deterrence has been
       considered and will be addressed by the Court and I have also considered the need
       to avoid unwanted disparities in the sentence to be imposed on this Defendant as
       opposed to others similarly situated who have committed similar crimes in the
       future.

       The district court found that Fannin had violated his supervised release, that the

violations were Grade A violations, that Fannin’s criminal history category was VI, and that the

advisory sentencing range was 33–41 months with a 24-month maximum. “With all of that in

mind,” the district court revoked Fannin’s supervised release and sentenced him to 18 months of

imprisonment, to run consecutively to the 84-month sentence imposed on the underlying bank

robbery conviction. The district court then said: “For the reasons that the Court has stated, it is

the order of this Court that the 18-month sentence be run consecutively to or after the 84-month

sentence imposed [for the bank robbery conviction].” On appeal, Fannin challenges only the

adequacy of the district court’s explanation for its decision to impose consecutive sentences.

       The district court did not plainly err in simultaneously explaining the reasons for the

sentence and for making the sentence consecutive. We review only for plain error because

Fannin’s counsel did not object when presented with the Bostic question. See United States v.

Vonner, 516 F.3d 382, 385 (6th Cir. 2008). “When a defendant is subject to an undischarged

sentence of imprisonment, the district court generally has authority to impose a term of

imprisonment on the current offense to run concurrently with or consecutively to the prior



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United States v. Fannin

undischarged term.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011) (citing 18

U.S.C. § 3584(a)). In exercising that authority, the district court must consider the factors listed

in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the

Sentencing Commission. Id. (citing 18 U.S.C. § 3584(b)).

       The policy statement in U.S.S.G. § 7B1.3(f) provides that:

       Any term of imprisonment imposed upon the revocation of . . . supervised release
       shall be ordered to be served consecutively to any sentence of imprisonment that
       the defendant is serving, whether or not the sentence of imprisonment being
       served resulted from the conduct that is the basis of the revocation of . . .
       supervised release.

U.S.S.G. § 7B1.3(f). Although not binding, “the district court must consider § 7B1.3(f) when it

is applicable and may exercise its discretion to apply it when determining whether to impose a

consecutive sentence.” Johnson, 640 F.3d at 208. In addition, Application Note 4 to U.S.S.G.

§ 7B1.3(f) elaborates:

       Subsection (f) provides that any term of imprisonment imposed upon the
       revocation of probation or supervised release shall run consecutively to any
       sentence of imprisonment being served by the defendant. Similarly, it is the
       Commission’s recommendation that any sentence of imprisonment for a criminal
       offense that is imposed after revocation of probation or supervised release be run
       consecutively to any term of imprisonment imposed upon revocation.

United States Sentencing Commission, Guidelines Manual, § 7B1.3(f), cmt. 1 (Nov. 2013).

Fannin challenges only the adequacy of the district court’s explanation for his consecutive

sentence.

       Facing this question under an abuse of discretion standard, this court held in Johnson that

an explanation is sufficient “[w]here, as here, the court makes generally clear the rationale under



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No. 13-3812
United States v. Fannin

which it has imposed the consecutive sentence.” 640 F.3d at 209 (quoting United States v.

Owens, 159 F.3d 221, 230 (6th Cir.1998)). “There is no requirement that the district court state a

‘specific reason’ for a consecutive sentence.” Id. at 208–09. In Johnson, “[t]he district court’s

determination of the length of Johnson’s sentence and his decision to impose the sentence

consecutively to the undischarged state sentence were intertwined”; likewise, here, the district

court relied upon the same reasoning when imposing Fannin’s substantive sentence and making

the sentence consecutive. See Johnson, 640 F.3d at 208. In Johnson, the district court simply

noted that it “ha[d] the discretion to make the sentence run concurrent or consecutive,” and

indicated that a consecutive sentence was appropriate in light of several § 3553(a) factors, before

ordering Johnson’s federal sentence to be served consecutively to his state sentence. Id. In

Fannin’s case, the district court imposed the sentence consecutively “[f]or the reasons that the

Court has stated,” including a prior evaluation of the § 3553(a) factors as applied to Fannin’s

case. The district court thus did not plainly err in imposing a consecutive sentence.

       It is true that in Cochrane we held that a district court’s decision to impose a consecutive

sentence was procedurally unreasonable because it did not provide any rationale for imposing a

consecutive sentence on a supervised release violation. United States v. Cochrane, 702 F.3d

334, 346–47 (6th Cir. 2012). However, Cochrane is distinguishable from this case. First, unlike

in Cochrane, where the standard of review was abuse of discretion, here it is plain error.

Second, unlike in Cochrane, where the defendant’s counsel requested concurrent sentences at the

sentencing hearing, here neither Fannin nor his counsel made such a request. See Cochrane, 702

F.3d at 340. Most importantly, the district court in Cochrane did not indicate that its reasons for


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No. 13-3812
United States v. Fannin

imposing consecutive sentences were the same as those for which it determined the length of

defendant’s sentence, or indeed provide any rationale whatsoever. By contrast, here the district

court provided exactly the type of explanation that was lacking in Cochrane—an indication that

the reasons for imposing consecutive sentences were the same as those for which it determined

the length of defendant’s sentence. This court in Cochrane explicitly acknowledged that an

explanation is sufficient when the district court “make[s] clear that its reasons for choosing a

substantive sentence and for running two sentences consecutively are the same.” Cochrane, 702

F.3d at 346 (citing Johnson, 640 F.3d at 208). The district court’s reference to its analysis prior

to imposing Fannin’s substantive sentence was adequate under this standard.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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