                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0456n.06

                                       Case No. 19-5525

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                 FILED
                                                                                Aug 04, 2020
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,
                                                      )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.
                                                      )        COURT FOR THE MIDDLE
                                                      )        DISTRICT OF TENNESSEE
CODY T. THOMAS,
                                                      )
        Defendant-Appellant.                          )                  OPINION
                                                      )




BEFORE: BOGGS, CLAY, and GIBBONS, Circuit Judges.

        CLAY, Circuit Judge. Defendant Cody Thomas pleaded guilty to possession of a firearm

after a conviction for a misdemeanor crime of domestic violence and to possession of a non-

registered firearm in violation of 18 U.S.C. § 922(g)(9) and 26 U.S.C. § 5861(d), respectively. He

was sentenced to 48 months’ imprisonment, to be served consecutively to a state prison term for

offenses related to his federal charges. Thomas argues on appeal that the district court erred in

imposing a consecutive, rather than a concurrent, sentence and failed to adequately respond to

certain arguments he made at sentencing. For the reasons set forth below, we AFFIRM the

sentence of the district court.
Case No. 19-5525, United States v. Cody Thomas


                                             BACKGROUND

         On February 23, 2018, officers in the Murfreesboro, Tennessee Police Department

responded to a 911 call regarding gunshots heard near a hotel in the city. A witness informed the

officers that the gunshots were fired in the parking lot of the hotel and that a vehicle had sped away

from the building. Officers then intercepted the vehicle and discovered that one of the occupants

was a sex worker, who claimed that Cody Thomas was with her at the hotel earlier that night. She

said she suspected Thomas of having fired the shots. Officers arrested Thomas, read him his

Miranda rights, and secured his consent for an interrogation. He admitted that he had been at the

hotel with the sex worker and that he had possessed a firearm. Thomas claimed that she left the

room rather than perform a sex act for which he had paid. Thomas followed her to the parking lot,

where an argument ensued. She then left the parking lot in a vehicle, and Thomas responded by

firing his gun in the direction of the vehicle.

         Thomas was subsequently charged in state court for aggravated assault and patronizing

prostitution. After Thomas pleaded guilty to the assault charge it was downgraded to reckless

aggravated assault, the prostitution charge was dismissed, and Thomas was sentenced to three

years’ imprisonment.

         Thomas was indicted on two counts in federal court. First, he was charged with unlawful

possession of a firearm, because he had four firearms in his vehicle and a misdemeanor domestic

violence conviction on his record. See 18 U.S.C. §§ 922(g)(9); 924. Second, he was charged with

possession of an unregistered firearm because officers discovered an unregistered short-barreled

shotgun in the trunk of his vehicle in the hotel parking lot. See 26 U.S.C. §§ 5841(a), 5861(d), and

5871.1



         1
             Thomas was also in possession of a second handgun, an assault-style rifle, and ammunition.
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Case No. 19-5525, United States v. Cody Thomas


       Thomas pleaded guilty to both federal offenses without a plea agreement. The United

States sought a sentence of 120 months’ imprisonment. The government argued that Thomas’

discharge of a firearm and possession of multiple firearms in a populated, public space presented

a serious danger to others and that this sentence was further justified by his lengthy criminal

history, which included misdemeanor offenses of assault, harassment, and violation of a protective

order. The government’s proposed sentence was still below the midpoint of his guidelines range

of 110 to 137 months’ incarceration.

       Thomas sought a downward variance to twelve months’ incarceration, based on several

mitigating arguments. The district court considered Thomas’ lengthy sentencing memorandum and

departed from the PSR’s recommended criminal history category of VI, reducing it to V. This

yielded a new sentencing range of 100 to 125 months’ imprisonment. It then evaluated Thomas’

numerous arguments for a further downward variance and considered how the 18 U.S.C. § 3553(a)

factors applied in this case. It accepted some of Thomas’ arguments, arrived at a final guidelines

range of 84 to 105 months, and imposed a below-guidelines sentence of 48 months’ incarceration.

The court arrived at 48 months by giving Thomas “36 months’ credit” for his state sentence and

subtracting that time from the bottom of his guidelines range. R. 48, Sent. Tr., PageID # 331. The

district court ordered that he serve his federal sentence consecutive to his state sentence. Thomas

filed a timely notice of appeal. He now contends that the district court failed to consider U.S.S.G.

§ 5G1.3(b)(2) when deciding to impose a consecutive rather than a concurrent sentence, and that

the court did not adequately consider certain arguments he made at sentencing.




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Case No. 19-5525, United States v. Cody Thomas


                                               DISCUSSION

      I.      Consecutive Sentencing

                                            Standard of Review

           “[T]he familiar abuse-of-discretion standard of review . . . applies to appellate review of

sentencing decisions.” Gall v. United States, 552 U.S. 38, 46 (2007).2 For a sentence to be affirmed

under the abuse of discretion standard, the sentencing court must have “correctly calculate[ed] the

applicable Guidelines range.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (quoting

Gall, 552 U.S. at 49 (2007)). If the range was miscalculated, then the court has committed a

“significant procedural error” and has abused its discretion. Id. (quoting Gall, 552 U.S. at 51).

                                                   Analysis

        U.S.S.G. § 5G1.3(b)(2) provides that in cases where “a term of imprisonment resulted from

another offense that is relevant conduct to the instant offense of conviction . . . the sentence for the

instant offense shall be imposed to run concurrently to the remainder of the undischarged term of

imprisonment.” Thomas possessed a firearm with ammunition “in connection with another felony

offense” (i.e., assaulting the woman with whom he was in the hotel room). R. 46, PSR,

PageID # 241 (citing U.S.S.G. § 2K2.1). The district court properly applied § 5G1.3(b)(2) to



        2
           The government contends that plain error review should apply because Thomas failed to object
to the district court’s sentence on the specific basis he focuses on in this Court (i.e., that the district court
misapplied U.S.S.G. § 5G1.3). See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). At
sentencing, Thomas objected “to the consecutive sentence as it creates a sentence . . . that’s unwarranted in
this case and creates an uncertainty with respect to the state sentence that is inappropriate in this case.”
R. 48, Sent. Hr’g Tr., PageID # 337. This was enough to satisfy the prudential purposes of the Bostic
procedure. See United States v. Herrera-Zuniga, 571 F.3d 568, 580 (6th Cir. 2009) (explaining that the
Bostic procedure was designed to bring errors made at sentencing to the attention of the district court to be
immediately corrected and “to help create a more reliable record for appeals”). And Thomas did not need
to expressly mention § 5G1.3 to preserve an argument based upon it for appeal, because it is merely an
extension of the objection he did make to the sentence. See United States v. Davis, 702 F. App’x 247, 252
(6th Cir. 2017) (“We do not mean to suggest that, in order to comply with Bostic, counsel must state a
perfectly formulated objection suitable for an appellate brief.”).
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Case No. 19-5525, United States v. Cody Thomas


Thomas’ sentence. The parties do not dispute that the assault is relevant conduct to the instant

offense.

        Thomas argues that “the court gave no indication whatsoever that it was aware that

§ 5G1.3[(b)(2)] made any recommendation at all, much less that it mandated a concurrent

sentence.” Appellant’s Br. at 17. And that “[t]his failure to consider, analyze, and ultimately

calculate the correct Guidelines range was error and an abuse of discretion.” Id. at 18. The

government maintains that the district court implicitly understood the relevance of § 5G1.3(b)(2)

to Thomas’ guidelines range because the “issue of concurrent or consecutive sentencing was at the

heart of the district court’s analysis.” Appellee’s Br. at 21.

        Thomas is correct that the district court never directly acknowledged § 5G1.3(b)(2). The

court did acknowledge at sentencing that Thomas moved under § 5G1.3 for credit for his time

spent in state custody up until the federal sentencing hearing. In context, this appears to be a

reference to § 5G1.3(b)(1), which states that “the court shall adjust the sentence for any period of

imprisonment already served on the undischarged term of imprisonment [for relevant conduct] if

the court determines that such period of imprisonment will not be credited to the federal sentence

by the Bureau of Prisons.” Thus, the court’s reference to this provision does not conclusively show

that the court considered § 5G1.3(b)(2).

        However, the district court recognized the advisory nature of the guidelines and observed

that it will “fashion a sentence that takes account of the sentencing guidelines to the extent, as a

good guide, but not entirely satisfactory in this case, that takes account of the fact that in connection

with this incident, Mr. Thomas has already been punished” and has already benefited from

downward departures from his guidelines range. R. 48, Sent. Hr’g Tr., PageID # 331. The court

then expressly considered whether to impose a consecutive or concurrent sentence on Thomas,



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Case No. 19-5525, United States v. Cody Thomas


and decided that “consecutive sentencing is appropriate because there is a dichotomy in the

reckless endangerment set of issues dealt with by the State and the possession of firearms in a

dangerous manner by Mr. Thomas.” Id. And the court credited Thomas for his term of

imprisonment from his state court sentence by deducting three years from his guidelines range.

        District courts must accurately calculate a defendant’s guidelines range. Bolds, 511 F.3d at

579. Where a defendant is serving an undischarged prior sentence resulting from another offense

that is relevant conduct to the instant offense of conviction, accurately calculating the defendant’s

guidelines range requires the district court to consider § 5G1.3(b)(2). See United States v. Johnson,

553 F.3d 990, 998 (6th Cir. 2009) (discussing a district court’s obligation to consider § 5G1.3(d)

when applicable to the guidelines calculation). However, Thomas points to no authority requiring

the district court to affirmatively identify the provision in rendering its sentencing decision.3 In

fact, this Court’s case law governing U.S.S.G. § 5G1.3(d), which applies when the defendant has

been sentenced in separate proceedings based on non-relevant conduct, supports the government’s

position. We have held that “the record on appeal should show that the district court turned its

attention to § 5G1.3([d]) and the relevant commentary in its determination of whether to impose a

concurrent or consecutive sentence.” Id. (quoting United States v. Covert, 117 F.3d 940, 945 (6th

Cir. 1997)). Ultimately, the record before us shows that the district court understood that it could

choose to impose either a consecutive or concurrent sentence and that it exercised its discretion to

disregard the guidelines—which in this case recommended a concurrent sentence—and impose a




        3
          Thomas relies on a case from the D.C. Circuit, United States v. Brown, 892 F.3d 385 (D.C. Cir.
2018), to argue that the district court erred in not expressly mentioning § 5G1.3(b)(2). Not only are we not
bound by this out-of-circuit precedent, but in Brown, the D.C. Circuit found that “[b]ecause the district
court did not acknowledge that the Guidelines recommended a concurrent sentence,” it committed plain
error. Id. at 399–400. In the present case, we find that the district court’s statements indicate that it
understood this recommendation. It simply neglected to cite the relevant provision by name.
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Case No. 19-5525, United States v. Cody Thomas


consecutive one. Therefore, the district court did not abuse its discretion in imposing a consecutive

sentence on Thomas without expressly referencing § 5G1.3(b)(2).

     II.   Arguments at Sentencing

                                       Standard of Review

       We examine for an abuse of discretion whether the district court has adequately addressed

the arguments raised by the parties at sentencing. See Bolds, 511 F.3d at 580–81.

                                             Analysis

       “[W]hen ‘a defendant raises a particular argument in seeking a lower sentence, the record

must reflect both that the district judge considered the defendant’s argument and that the judge

explained the basis for rejecting it.’” United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007)

(quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)). 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).

       That said, “‘a district court’s failure to address each argument [presented by the defendant]

head-on will not lead to automatic vacatur’ if the context and the record make the court’s reasoning

clear.” United States v. Petrus, 588 F.3d 347, 352 (6th Cir. 2009) (alteration in original) (quoting

United States v. Smith, 505 F.3d 463, 468 (6th Cir. 2007)). In fact, “[w]hen a district court

adequately explains why it imposed a particular sentence, especially one within the advisory

Guidelines range, we do not further require that it exhaustively explain the obverse—why an

alternative sentence was not selected—in every instance.” United States v. Gale, 468 F.3d 929,

940 (6th Cir. 2006). That a district court could have said more about an argument raised by a party

at sentencing does not mean it was required to, as a matter of procedural reasonableness. Instead,


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Case No. 19-5525, United States v. Cody Thomas


“[w]here a matter is . . . conceptually simple . . . and the record makes clear that the sentencing

judge considered the evidence and arguments, we do not believe the law requires the judge to write

more extensively.” Rita, 551 U.S. at 359.

        In the present case, the district court adequately addressed each of the arguments Thomas

raises on appeal. Thomas first takes issue with the application of U.S.S.G. § 2K2.1, which does

not distinguish between felons, certain misdemeanants, and other classes of “prohibited person[s]”

in possession of a firearm. This means that any individual convicted under 18 U.S.C. § 922(g) for

possession of a firearm as a prohibited person receives a base offense level of twenty under

U.S.S.G. § 2K2.1(a)(4)(B), if they also meet the other requirements provided by that guidelines

provision. The severity of the offense rendering the defendant a prohibited person is irrelevant.

Thomas was convicted of misdemeanor domestic violence in 2009 and therefore he was a

prohibited person when he committed the instant firearms offense.

        Thomas argued before the district court that “[t]he fact that § 2K2.1 draws no distinction

in culpability between a felon and a misdemeanant . . . was good reason to disregard the guideline

and the range that it produces because it did not adequately reflect a misdemeanant’s culpability.”

Appellant’s Br. at 21. Thomas further contends that the district court did no more than

acknowledge this argument: it “did not go on to discuss it or give any indication that it considered

it.” Id. at 22.

        However, “[a]dequately explaining the reasons for sentencing does not require expressly

defending the abstract justifications for the sentencing range.” United States v. Simmons, 587 F.3d

348, 363 (6th Cir. 2009). The district court therefore did not need to defend the allegedly unfair

treatment of certain misdemeanants that comes from subjecting them to the same base offense

level as felons for possession of firearms. Instead, it was enough for the district court to find that



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Case No. 19-5525, United States v. Cody Thomas


the circumstances of Thomas’ offense were severe enough to merit the sentence he received.

Specifically, the district court emphasized the “nature of [his] illegal possession” and the danger

Thomas posed by having four weapons in his vehicle. R. 48, Sent. Hr’g Tr., PageID # 326. This

was a sufficient response to Thomas’ argument. See Gale, 468 F.3d at 940 (“When a district court

adequately explains why it imposed a particular sentence, especially one within the advisory

Guidelines range, we do not further require that it exhaustively explain the obverse . . . .”).

       Thomas next contests the four-level enhancement he received for using a firearm in

connection with “another felony offense,” i.e., the assault. R. 46, PSR, PageID # 241. He argues

that the assault charge was only classified as a felony because he pleaded guilty to it as a felony in

state court. It could have been charged as a misdemeanor or he could have been acquitted of it

entirely. Had he not pleaded guilty to it as a felony and accepted responsibility for his conduct, the

government would have had to prove at Thomas’ federal sentencing hearing that this related

conduct constituted a felony in order to secure the four-level enhancement. Thomas argued to the

district court that by accepting responsibility in state court he made his federal case that much

simpler and that he should not now be penalized in his federal sentence for this act of contrition.

While the district court acknowledged this argument, it did not directly explain why it did not

accept it and vary downwards from the four-level enhancement.

        The district court adequately considered this argument by acknowledging that Thomas’

offense level overstated his culpability. The district court also accounted for Thomas’ acceptance

of responsibility by granting him a three-level reduction under U.S.S.G. § 3E1.1. And the court

significantly departed downward from Thomas’ guidelines range by deducting from it the full

three years of his state sentence, effectively mitigating the impact his guilty plea had on his federal




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Case No. 19-5525, United States v. Cody Thomas


sentence. Therefore, Thomas was not penalized in federal court for admitting to his related offense

in state court.

        Moreover, the district court made clear that Thomas’ sentence was based upon its review

of the § 3553(a) factors and not on mere deference to the advisory guidelines range. Thus, there

was no reason for the district court to grapple further with Thomas’ argument by defending the

sentencing range. Simmons, 587 F.3d at 363. The court noted that:

        [R]egarding the sentencing guidelines, the Court will say it’s taking account of
        them. It does essentially, though, realize certain limitations on their probativeness
        in this particular case. But . . . writing them off to the degree that [defense counsel]
        suggests poses a risk of having a guideline range that would suggest an overall
        sentence, based on all 3553(a) factors, that could result in disparity.

R. 48, Sent. Hr’g Tr., PageID # 330. And the district court further tethered Thomas’ sentence to

its review of the § 3553(a) factors by announcing that its “goal is to pronounce an overall sentence

that is sufficient but not greater than necessary,” id. at 325, and subsequently discussing each of

the statutory factors.

        Thomas next contends that the district court did not adequately consider that his long

history of drug addiction was a primary cause of his past misconduct and the instant offense.

However, the district court directly responded to this argument in its discussion of the § 3553(a)

factors. It stated as follows:

        [T]he Court does acknowledge that [Thomas] has admitted these problems when
        they’ve occurred, and, you know, admitted guilt, pled guilty, and so forth, but it
        just doesn’t seem to be getting better. And part of that could be an addiction issue,
        but the Court cannot conclude that this is all about addiction or all excused because
        there are a variety of different kinds of offenses that have contributed to that
        criminal history that are easily explainable potentially, and the Court doesn’t know
        the reason; easily explainable, though, on the basis of things other than addiction.




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Case No. 19-5525, United States v. Cody Thomas


Id. at 328. The court also noted that Thomas’ possession of firearms presented a unique “societal

danger” because he is “a prohibited person with this kind of [drug] addiction.” Id. at 326. And the

district court included mandatory drug treatment as part of Thomas’ supervised release conditions.

       While the district court could have more thoroughly discussed the nature of Thomas’ drug

addiction and how it may have contributed to his propensity to violate the law, it was not required

to do so. Thomas points to no case law requiring such an exhaustive examination of a defendant’s

personal history. Instead, it was enough that the district court evinced an understanding of the

argument and placed into the record sufficient statements for this Court to determine that it

adequately considered Thomas’ contention.

       Thomas also argues that the district court ignored his argument that a lengthy prison

sentence will increase his likelihood of reoffending, rather than reduce it. He specifically claimed

that a wealth of scholarship establishes that lengthy terms of imprisonment have a recidivist

impact, particularly on offenders who have not spent much time with felons.

       The district court adequately addressed this argument when it stated that:

       [E]ven given the view shared in some circles that deterrence through substantial
       prison sentences has its limits, the Court believes that in this case . . . a substantial
       prison sentence is, it appears, appropriate because repeated encounters with the
       criminal justice system have, one after the other, not helped to turn his behavior
       around.

Id. at 328. Although the court could have included a lengthier explanation for its disagreement

with the view in “some circles” that longer sentences are ineffective for certain offenders, its failure

to do so was not an abuse of discretion. This argument is “conceptually simple” and the sentencing

hearing transcript demonstrates that “the sentencing judge considered [Thomas’] evidence and

arguments.” Rita, 551 U.S. at 359. Consequently, the court was not required “to write more

extensively.” Id.


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Case No. 19-5525, United States v. Cody Thomas


       Thomas last argues that the district court did not adequately consider and address his

argument that he is the primary provider for his three children. The parties debated at the

sentencing hearing what relevance his personal background should have. Thomas’ counsel argued

that “he has three boys who need his support financially and they need him to be a father,” R. 48,

Sent. Hr’g Tr., PageID # 322, while the government noted that Thomas has repeatedly chosen a

life of addiction over his family and has repeatedly engaged in unlawful conduct, including

domestic violence. The court ultimately noted the following:

       [T]he Court realizes that the Defendant has some things to his credit. He does
       appear to be a hard worker. He has some positive attributes as a father. On the other
       hand, the Court cannot conclude otherwise than that his record as a father and a
       husband is mixed. The Court will say that about the Defendant.

Id. at 327. This statement adequately responded to Thomas’ argument. The court found that despite

Thomas’ “positive attributes,” because “the sentence does need to reflect the seriousness of the

offense, promote respect for the law, to provide just punishment for the offense, afford adequate

deterrence, protect the public . . . and also to provide the Defendant with needed . . . correctional

treatment,” a 48 month sentence was warranted. Id. at 327–28. Therefore, the district court “set

forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita, 551 U.S. at 356.

       Ultimately, the court listened to, considered, and understood each of Thomas’ conceptually

simple arguments. See id. at 359. It weighed them against the § 3553(a) factors and decided that a

48 month sentence was appropriate. Nothing in the record indicates that the court’s process or

sentencing decision involved an abuse of discretion.

                                         CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.



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