United States v. Harmon

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0156p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5006
v.
,
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Defendant-Appellant. -
JEFFREY THOMAS HARMON,
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Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 08-00092-001—Thomas W. Phillips, District Judge.
Submitted: April 30, 2010
Decided and Filed: June 2, 2010
*
Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, Senior District Judge.

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COUNSEL
ON BRIEF: Paula R. Voss, FEDERAL DEFENDER SERVICES OF EASTERN, TN.,
INC., Knoxville, Tennessee, for Appellant. Cynthia F. Davidson, ASSISTANT
UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Thomas
Harmon appeals the district court’s decision ordering that his 46-month sentence for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) be served

*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District
of Ohio, sitting by designation.

1
No. 09-5006 United States v. Harmon Page 2

consecutively to an undischarged state sentence on an unrelated conviction for voluntary
manslaughter. For the reasons that follow, we affirm the district court’s decision.

I.

The Presentence Investigation Report (“PSR”), to which Harmon had no
objection, summarized the offense conduct relevant to Harmon’s state and federal
convictions.

On April 7, 2006, Harmon pled guilty to voluntary manslaughter in the Criminal
Court of Clairborne County, Tennessee, and was sentenced to nine years imprisonment.
He was judicially released on June 2, 2007. On March 10, 2008, Harmon’s parole
officer received information that Harmon was outside his residence shooting a weapon.
Harmon was arrested and admitted that he had been shooting a rifle. On the following
day, the parole officer and law enforcement officers searched Harmon’s residence and
found three guns, more than 1,000 rounds of ammunition, and over an ounce of
marijuana. Harmon was subsequently indicted on and pled guilty to one count of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As a result of
the discovery of the firearms at issue in the federal case, Harmon’s state parole was
revoked on April 21, 2008.

The PSR recounted Harmon’s personal circumstances. Harmon graduated from
high school and had been a certified welder in the past. He has been on disability since
1991 but reported a steady work history, including driving a truck and factory work,
before his disability. He suffered from a number of physical ailments, including the
amputation of his left leg due to diabetes, hypertension, chronic pain syndrome, cartilage
damage in his right knee, and ulcers on his arms and legs. He was also treated for
depression and had attempted to commit suicide in 2006 while in jail. Harmon smoked
marijuana daily and used up to $200 of crack cocaine a month until his arrest. He
indicated that he wished to enter a drug and alcohol treatment program while
incarcerated.
No. 09-5006 United States v. Harmon Page 3

Starting from a base offense level of 20, the PSR calculated an adjusted offense
level of 19 after adjustments for the number of firearms involved and Harmon’s
acceptance of responsibility. The PSR also calculated that Harmon was in criminal
history category IV. The applicable Guidelines range was 46 to 57 months. The parties
did not object to the PSR.

Harmon appeared with appointed counsel for sentencing on December 16, 2008.
The district court stated that “the sentence of this court shall be made pursuant to the
factors set forth in [18 U.S.C. § 3553(a)], treating the sentencing commission guidelines
as advisory only.” Harmon’s counsel then requested that his sentence run concurrently
with the state sentence. She first noted that Harmon was not in great health and suffered
from diabetes and depression. She then stated that Harmon’s state sentence ran until
2015 and his “first parole eligibility would be coming up probably in the spring of next
year [with] no guarantee or even expectation I don’t think that he is going to make parole
the first time around.” She then pointed out that Harmon was not in a work training
program while in state custody and was scheduled to enter a nine-month drug and
alcohol treatment program with a component on anger management. She argued that
state incarceration provided Harmon with medical care and drug and alcohol treatment
and that “he is receiving most of what he needs in the state system.” She asked the
district court to order that Harmon’s sentence run either concurrently or partially
concurrently with his state sentence and contended that if Harmon made parole, “he
would be paroled directly to his federal sentence at that time.” Defense counsel
concluded by remarking that Harmon’s drug treatment could be provided during his
supervised release. The government requested that Harmon be sentenced within the
Guidelines range and did not take a position on the issue of concurrent or consecutive
sentencing.

The district court first addressed Harmon’s argument for a concurrent sentence.
The district court ordered that Harmon’s sentence be served consecutively to the state
sentence, stating:
No. 09-5006 United States v. Harmon Page 4

Well, I am not at all sure why the state placed Mr. Harmon on judicial
release. It appears to me that it’s inappropriate in this case to run the
sentences concurrent. Ms. Voss, you can always seek to get the state of
Tennessee to run part of its sentence concurrent with the federal
sentence. In this case I don’t believe, I just don’t have the confidence in
what the state is going to do that would allow me to allow these
sentences to run concurrently with the state of Tennessee sentence.

It then pronounced a 46-month sentence, at the bottom of the applicable Guidelines
range, having “considered the nature and circumstances of the offense, the history and
characteristics of the defendant and the advisory guideline range, as well as the other
factors listed in [18 U.S.C. § 3553(a)].”

Before explaining its reasoning, the district court asked counsel for any
“objection to the sentence as previously read and stated by [the] court,” and defense
counsel responded, “Only as to the concurrency, Your Honor.” Neither the court nor
counsel addressed any further objection and the district court proceeded to explain that
it was concerned by Harmon’s possession of multiple firearms and ammunition,
especially in light of his voluntary manslaughter conviction. The court was troubled by
Harmon’s continued use of firearms, significant history of substance abuse, and mental
health issues. As a factor in Harmon’s favor, the court pointed to Harmon’s high school
degree and certification as a welder and found that Harmon could enhance his skills
while in custody. These factors led the court to find that a 46-month sentence was
“sufficient but not greater than necessary, to reflect the seriousness of the offense, and,
importantly, to protect the public from further crimes of this defendant.” At the end of
the hearing, the court asked counsel if anything further needed to be taken up with the
court, and both responded negatively.

Harmon timely appealed, arguing that the district court’s failure to consider the
factors set forth in U.S.S.G. § 5G1.3 rendered his sentence procedurally unsound and
that the district court failed to fashion an incremental punishment that was sufficient but
not greater than necessary to meet the mandate of 18 U.S.C. § 3553(a).
No. 09-5006 United States v. Harmon Page 5

II.

We review a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38,
51 (2007). Because defense counsel did not object to the district court’s purported
procedural error in failing to consider U.S.S.G. § 5G1.3 with enough specificity, a plain
error standard of review applies. However, a reasonableness standard of review applies
to Harmon’s substantive argument because counsel clearly argued to the district court
that he deserved a concurrent sentence based upon his health, parole status, and
eligibility for drug and mental health treatment.

“A party ‘must object with that reasonable degree of specificity which would
have adequately apprised the trial court of the true basis for his objection.’” United
States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004) (quoting United States v. LeBlanc,
612 F.2d 1012, 1014 (6th Cir. 1980) (citations omitted)). “A specific objection provides
the district court with an opportunity to address the error in the first instance and allows
this court to engage in more meaningful review.” Id. We require district courts to “ask
the parties whether they have any objections to the sentence . . . that have not previously
been raised.” Id. at 872.

The so-called Bostic question is “especially pertinent with respect to objections
that concern the adequacy of the court’s explanation precisely because such objections
cannot be made until after the court states its reasoning in the course of sentencing the
defendant.” United States v. Simmons, 587 F.3d 348, 354 (6th Cir. 2009). In Simmons,
defense counsel argued at sentencing that the defendant deserved a downward variance
because of the Guidelines’ disparate treatment of crack and powder cocaine crimes. Id.
at 355. In response to the Bostic question, counsel objected “just for the record for the
procedural, substantive aspects.” Id. (quoting counsel). On appeal, the defendant argued
that the district court failed to address his argument for a variance. We held that
counsel’s failure to object specifically that the sentencing judge did not address her
policy argument required the application of plain-error review. Id. at 358. Although
counsel responded to the Bostic question in the affirmative, she did so “at such a high
degree of generality that the district court ha[d] no opportunity to correct its purported
No. 09-5006 United States v. Harmon Page 6

error and the court of appeals ha[d] been deprived of a more detailed record to review.”
Id. Simmons emphasized that allowing counsel to omit any explanation of her objections
would render the Bostic question “a meaningless formality whereby certain magic words
are uttered and any new claim may be raised on appeal without consequence.” Id. at
357; see also United States v. Martin, No. 08-6426, 2010 U.S. App. LEXIS 7058, at
*3–4 (6th Cir. April 6, 2010) (applying a plain error standard of review where the
defendant lodged no objections to the district court’s sentencing procedures); United
States v. Sorrell, No. 08-1740, 2010 U.S. App. LEXIS 3520, at *4 (6th Cir. Feb. 22,
2010) (applying a plain error standard of review where the defendant failed to challenge
the adequacy of the sentencing explanation before the district court); United States v.
Dumas, No. 07-1689, 2010 U.S. App. LEXIS 713, at *10–11 (6th Cir. Jan. 12, 2010)
(finding the defendant’s objection so vague as to warrant plain error review).

In this case, the district court gave counsel the opportunity to lodge objections
twice—once after it ruled that Harmon’s sentence should be served consecutively and
announced the sentence, and again after explaining its choice of a 46-month sentence.
Taking advantage of her first opportunity to object, defense counsel said, “Only as to the
concurrency, Your Honor.” Counsel did not mention U.S.S.G. § 5G1.3, much less the
district court’s purported failure to apply that Guideline or to consider the factors listed
in 18 U.S.C. § 3553(a) with specific reference to the issue of concurrent or consecutive
sentencing. Counsel gave the district court no opportunity to supplement the record with
a more detailed explanation of its reasons for imposing a consecutive sentence. Indeed,
the apparent meaning of counsel’s reference to concurrency was that counsel was
reiterating her substantive objection, not making a procedural objection. Counsel also
failed to object at all at the end of the hearing when addressed by the court. Because
counsel’s response to the Bostic question was too vague to give the district court an
opportunity to correct its purported procedural errors, we conclude that a plain-error
standard of review applies to Harmon’s procedural reasonableness arguments. Simmons,
587 F.3d at 358. Under this standard, a defendant must demonstrate that the district
court’s error was obvious or clear, affected his substantial rights, and affected the
No. 09-5006 United States v. Harmon Page 7

fairness, integrity, or public reputation of the judicial proceedings. See United States v.
Houston, 529 F.3d 743, 750 (6th Cir. 2008).

However, Simmons explicitly held that the normal reasonableness standard
applies to a party’s substantive arguments where counsel clearly made these arguments
to the sentencing court. Simmons, 587 F.3d at 355. A procedurally reasonable sentence
is reviewed for substantive reasonableness under the abuse-of-discretion standard. Gall,
552 U.S. at 51. Here, counsel focused the entirety of her argument on factors warranting
a concurrent sentence and was not required to repeat her previously made objections.
Simmons, 587 F.3d at 355.

III.

A sentence is procedurally inadequate if the district court fails to calculate
properly the Guidelines range, treats the Guidelines as mandatory, fails to consider the
section 3553(a) factors, selects the sentence based upon clearly erroneous facts, or fails
to adequately explain the chosen sentence. See Gall, 552 U.S. at 51; Houston, 529 F.3d
at 753. A district court must state its reasons for imposing a particular sentence. See
United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009) (per curiam). Even so the
district court need not “give the reasons for rejecting any and all arguments by the
parties for alternative sentences.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir.
2008) (en banc).

Pursuant to 18 U.S.C. § 3584, “if a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment, the terms
may run concurrently or consecutively . . . .” 18 U.S.C. § 3584(a). District courts “shall
consider, as to each offense for which a term of imprisonment is being imposed, the
factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). District courts must consider
the advisory recommendations of the Guidelines and any pertinent policy statements
issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(4) and (5). The Guidelines
state that the sentencing judge should run the 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) (2007). The
No. 09-5006 United States v. Harmon Page 8

application notes to this subsection provide that the following factors should be
considered “to achieve a reasonable incremental punishment for the instant offense and
avoid unwarranted disparity”:

(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C.
§ 3553(a));
(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 time likely
to be served before release;
(iv) the fact that the prior undischarged 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 circumstance relevant to the determination of an
appropriate sentence for the instant offense.

U.S.S.G. § 5G1.3 cmt. n.3(A) (2007).

Moreover, where, as in the present case, the undischarged term of imprisonment
resulted from the revocation of the defendant’s federal or state probation, parole, or
supervised release at the time of the instant offense, “the Commission recommends that
the sentence for the instant offense be imposed consecutively to the sentence imposed
for the revocation.” U.S.S.G. § 5G1.3 cmt. n.3(C) (2007).

Generally, “[a] district court’s decision to impose a consecutive or concurrent
sentence under § 5G1.3 of the Sentencing Guidelines is reviewed for abuse of
discretion.” United States v. Campbell, 309 F.3d 928, 930 (6th Cir. 2002). A district
court must make “generally clear the rationale under which it has imposed the
consecutive sentence and seek[] to ensure an appropriate incremental penalty for the
instant offense.” United States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009) (internal
quotation marks omitted). Although “the record on appeal should show that the district
court turned its attention to” U.S.S.G. § 5G1.3, id. at 998 (citation omitted), it need not
“explicitly reference the § 5G1.3 considerations” if the record shows that it considered
this Guideline, United States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009). This court has
upheld the imposition of a consecutive sentence where the “totality of the record ma[de]
clear that the district court properly turned its attention to § 5G1.3(c) and the relevant
No. 09-5006 United States v. Harmon Page 9

commentary before imposing a consecutive sentence.” United States v. Covert, 117 F.3d
940, 946 (6th Cir. 1997). It has also upheld a consecutive sentence where the district
court made a “brief reference to the statutory and Guidelines factors” although the
explanation was “somewhat cursory.” United States v. Watford, 468 F.3d 891, 915–17
(6th Cir. 2006).

In this case, the district court (and counsel) did not mention U.S.S.G. § 5G1.3(c)
by name, but the totality of the record shows that the court considered each of the factors
contained in application note 3(A) and thus committed no error, much less one that was
obvious and clear. The district court was aware of the length and parolability of
Harmon’s undischarged state sentence. U.S.S.G. § 5G1.3(c) cmt. n.3(A)(ii) and (iv)
(2007). It expressed concern that it could not determine how long Harmon would
actually serve his state sentence. U.S.S.G. § 5G1.3(c) cmt. n.3(A)(iii) (2007). These
considerations led it to deny Harmon’s request for a concurrent federal sentence.

Harmon argues that the district court failed to apply 18 U.S.C. § 3553(a) to the
issue of concurrent or consecutive sentencing as required by application note 3(A)(i),
but, again, the record belies this contention. The district court stated clearly that its
sentence “shall be made pursuant to the factors set forth in [18 U.S.C. § 3553(a)],” and
found that “a sentence of 46 months is sufficient, but not greater than necessary, to
comply with the purposes of § 3553(a).” The district court’s determination of the length
of Harmon’s sentence and its decision to impose the sentence consecutively to the
undischarged state sentence were intertwined. The court selected a 46-month sentence
on the basis of Harmon’s criminal history and unlawful use of a firearm despite being
convicted of voluntary manslaughter in state court, the need to provide adequate
deterrence, the need to protect the public, and the likelihood that a term of imprisonment
would provide Harmon with drug abuse and medical treatment. The record discloses
that the district court’s explanation for Harmon’s 46-month sentence depended, in part,
upon its prior denial of his request for a concurrent sentence because it could not
determine how long he would serve in state prison. The district court was not required
No. 09-5006 United States v. Harmon Page 10

to say more and it committed no error, much less one so obvious or clear to warrant
reversal for plain error.

IV.

“[T]he district court’s task is to impose a sentence sufficient, but not greater than
necessary, to comply with the purposes of the statutory sentencing scheme.” United
States v. Presley, 547 F.3d 625, 630–31 (6th Cir. 2008) (internal quotation omitted). “A
sentence may be considered substantively unreasonable when the district court selects
a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent
factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A within-
Guidelines sentence is entitled to a rebuttable presumption of reasonableness. United
States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

Harmon argues that because the district court did not recognize that the federal
felon-in-possession charge and the underlying state conviction for involuntary
manslaughter were “intrinsically entwined,” it failed to fashion an incremental,
overlapping sentence that served the purposes of 18 U.S.C. § 3553(a). However,
Harmon has failed to rebut the presumption of reasonableness given to his sentence at
the bottom of the applicable Guidelines range. The district court considered each of the
factors set forth in section 3553(a) in fashioning its sentence. Also, Harmon was unable
to show the district court how long he was actually likely to serve on his undischarged
state sentence and the court properly exercised its discretion in imposing a 46-month
consecutive sentence that was sufficient, but not greater than necessary, to address the
seriousness of Harmon’s federal crime, his criminal history, and balance of the section
3553(a) factors. Finally, the federal felon-in-possession charge punished offense
conduct unrelated to the voluntary manslaughter conviction insofar as the incidents were
separated in time and involved different victims. The district court did not act arbitrarily
nor did it give undue weight to any particular factor in determining that a 46-month
consecutive sentence was adequate to address Harmon’s continued use of firearms and
prior criminal history.
No. 09-5006 United States v. Harmon Page 11

V.

For the foregoing reasons, we affirm the district court’s decision to order that
Harmon serve his federal sentence consecutively to his state sentence.