F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 3 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-7108
DAN TALMADGE ROSE,
Defendant-Appellant.
Appeal from the United States District Court
for the E. District of Oklahoma
(D.C. No. CR-91-12-S)
Submitted on the briefs:
Bruce Green, United States Attorney, and D. Michael Littlefield, Assistant U. S.
Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.
Stephen J. Knorr, Federal Public Defender, and Michael A. Abel, Assistant
Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.
Before TACHA, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court
therefore honors the parties’ requests and orders the case submitted without oral
argument.
This appeal arises from a consolidated action in the district court to revoke,
pursuant to 18 U.S.C. § 3583(e)(3) and (g), Dan T. Rose’s concurrent terms of
supervised release. After a hearing on the matter, the district court concluded that
Rose had violated the conditions imposed on each term of supervised release.
Accordingly, the district court revoked both terms of supervised release,
sentenced Rose to a term of imprisonment of twenty-four months in each case,
and ordered that the terms of imprisonment be served consecutively.
Rose appeals, contending that the district court failed to consider on the
record the statutorily mandated factors set out in 18 U.S.C. § 3553(a) when it
imposed consecutive, rather than concurrent terms of imprisonment. See 18
U.S.C. § 3584(b) (“The court, in determining whether the terms imposed are to be
ordered to run concurrently or consecutively, shall consider, as to each offense for
which a term of imprisonment is being imposed, the factors set forth in section
3553(a).”). Rose further contends that the district court failed to state in open
court the reason for imposing consecutive sentences as required by 18 U.S.C. §
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3553(c). Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, this court vacates and remands to the district court to state on the record
pursuant to § 3553(c) its reasons for imposing consecutive sentences.
II. BACKGROUND
In 1991, Rose pleaded guilty in the Eastern District of Oklahoma to a single
count of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952
(the “Oklahoma Case”). The district court sentenced Rose to a sixty-month term
of incarceration to be followed by three years of supervised release. The next
year, Rose pleaded guilty in the Western District of North Carolina to a single
count of conspiracy to possess with the intent to distribute marijuana (the “North
Carolina Case”). The district court sentenced Rose to a thirty-three-month term
of incarceration and ordered the sentence to be served concurrently with the
sentence imposed in the Oklahoma Case. In addition, the district court ordered
Rose to serve a five-year term of supervised release.
Upon his release from prison, Rose’s remaining term of supervised release
arising out of the North Carolina Case was transferred to the United States
Probation Office (“USPO”) for the Eastern District of Oklahoma. While
supervising Rose, the USPO filed a Petition for Summons for Offender Under
Supervision (the “Petition”) in both cases. The Petition alleged that Rose had
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violated the provisions of his terms of his supervised release and requested that
the district court revoke Rose’s supervised release. All hearings on these matters
in both cases were consolidated and addressed simultaneously.
In his initial appearance, Rose acknowledged receipt of the Petition and
waived a preliminary hearing. Pursuant to this waiver, Rose was bound over to
answer the allegations before the district court. At his hearing on revocation,
Rose entered a stipulation admitting each of the violations alleged in the Petition.
Upon accepting the stipulation, the district court revoked both terms of supervised
release, sentenced Rose to a term of imprisonment of twenty-four months in each
case, and ordered that the terms of imprisonment be served consecutively.
III. ANALYSIS
Rose asserts that the district court failed to comply with 18 U.S.C. § 3584
in ordering his terms of incarceration to run consecutively. Section 3584 grants
district courts discretion in choosing between consecutive and concurrent terms of
imprisonment. See 18 U.S.C. 3584(a) (“If multiple terms of imprisonment are
imposed on a defendant at the same time . . . , the terms may run concurrently or
consecutively . . . .”). Nevertheless, in exercising that sentencing discretion, a
district court must consider the factors set forth in 18 U.S.C. § 3553(a). See id. §
3584(b). Those factors include: (1) the nature and circumstances of the offense;
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(2) the history and characteristics of the defendant; (3) the need for the sentence
imposed to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, afford adequate deterrence, protect the public, and
provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most efficient manner; (4) the kinds of
sentences available pursuant to the Sentencing Guidelines; (5) pertinent policy
statements issued by the Sentencing Commission; (6) the need to avoid unwanted
sentence disparities; and (7) the need to provide restitution. See id. § 3553(a).
Rose contends the district court failed to comply with § 3584(b) because it
failed to weigh on the record each of the statutorily mandated factors in
determining that Rose’s sentences should run consecutively. In circumstances
indistinguishable from those at issue here, the Fourth Circuit recently rejected an
argument identical to the one advanced by Rose. See United States v. Johnson,
138 F.3d 115, 119-20 (4 th Cir. 1998). The Johnson court began by noting that
although “[s]tatutory changes and the sentencing guidelines have dramatically
altered the sentencing landscape[,] Congress never intended . . . for sentencing to
become a hyper-technical exercise devoid of common sense.” Id. at 119; see also
United States v. Davis, 53 F.3d 638, 642 (4 th Cir. 1995) (holding that a sentencing
court need not engage in a “ritualistic incantation in order to establish its
consideration of a legal issue”). Absent any contrary indication in the record, the
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Fourth Circuit concluded it was appropriate to presume “that a district court
properly considered the pertinent statutory factors.” Johnson, 138 F.3d at 119;
see also United States v. Caves, 73 F.3d 823, 825 (8 th Cir. 1996) (rejecting
contention that district court must recite mandatory sentencing factors before
revoking term of supervised release); United States v. Cervantes-Valenzuela, 931
F.2d 27, 29 (9 th Cir. 1991) (“We assume that the district court knows and applies
the law correctly, and therefore considers the factors in 18 U.S.C. § 3553(a).”).
We agree with and adopt the approach in Johnson. Accordingly, absent a
contrary indication in the record, this court will assume that a district court
weighed each of the sentencing factors set forth in § 3553(a) in exercising its
discretion pursuant to § 3584, even where the district court does not explicitly so
state at the sentencing hearing or in its order.
This approach is consistent with general Tenth Circuit precedent. In a case
involving the calculation of a term of imprisonment following a revocation of
supervised release, which calculation also requires a sentencing court to consider
the factors set out in § 3553(a), this court held as follows:
We have previously held that the sentencing court is not
required to consider individually each of the factors listed in 18
U.S.C. § 3553(a) before issuing a sentence. A sentencing court need
only give the reasons for its action as required by 18 U.S.C.
§ 3553(c). Thus, when imposing a sentence, a district court need
only consider 18 U.S.C. § 3553(a) en masse and state its reasons for
imposing a given sentence.
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United States v. Burdex, 100 F.3d 882, 886 (10 th Cir. 1996) (citation omitted).
This court can discern no reason for a different result in the case at hand.
Accordingly, we hold that the district court is not obligated to expressly weigh on
the record each of the factors set out in § 3553(a) before deciding, pursuant to §
3584, whether to run separate terms of imprisonment consecutively or
concurrently.
This conclusion, however, does not end this court’s analysis. Section
3553(c) provides as follows:
(c) Statement of reasons for imposing a sentence. -- The court, at
the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence, and, if the sentence --
(1) is of the kind, and within the range, described in
subsection (a)(4) and that range exceeds 24 months, the
reason for imposing a sentence at a particular point
within the range; or
(2) is not of the kind, or is outside the range, described
in subsection (a)(4), the specific reason for the
imposition of a sentence different from that described.
18 U.S.C. § 3553(c). Rose contends that even if the district court need not weigh
the § 3553(a) factors on the record, it must still state in open court, pursuant to
§ 3553(c), the reasons for imposing consecutive terms of imprisonment.
While conceding that the district court did not state its reasons for imposing
consecutive terms, the United States asserts that § 3553(c) is not applicable in
cases in which the sentence does not exceed twenty-four months. In so arguing,
the United States misreads § 3553(c).
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Section 3553(c) imposes a general burden on a sentencing court to “state in
open court the reasons for its imposition of the particular sentence.” 18 U.S.C. §
3553(c). Subsections (1) and (2) to section 3553(c) impose further specific
burdens on a sentencing court where the sentencing-guidelines range exceeds
twenty-four months or the district court chooses to impose a sentence outside the
sentencing-guidelines range. See id. § 3553(c)(1) (district court must state on
record reason for imposing sentence at particular point in sentencing range where
that range exceeds twenty-four months); id § 3553(c)(2) (district court must state
on record reason for departing from sentencing guidelines). Despite the United
States’ assertion to the contrary, this court has concluded that the general
requirement set out in § 3553(c) extends to all cases and is not limited by the
conditions to applicability of subsections (1) & (2). See United States v.
Underwood, 938 F.2d 1086, 1091-92 (10 th Cir. 1991) (“We agree with the courts
that have held that § 3553 subsection (c), without regard to subsections (c)(1) and
(c)(2), requires a district court to make a general statement of its reasoning for the
sentence imposed. Otherwise, we would be left in a zone of speculation on
appellate review.” (quotation omitted)); see also United States v. Lockard, 910
F.2d 542, 546 (9 th Cir. 1990) (cited with approval in Underwood) (“We hold that
18 U.S.C. § 3553(c) requires the district court to state, in open court, its general
reasons for its imposition of the particular sentence, notwithstanding the absence
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of the conditions described in subsections (1) and (2).”). Any other interpretation
of § 3553(c) would read a key word out of the statute. 1 Accordingly, this court
rejects the United States’ contention that § 3553(c) is not applicable to this case
because neither of Rose’s sentences exceeded twenty-four months. 2
The Ninth Circuit has noted as follows in this regard:
1
We next consider whether the prefatory language of section
3553(c) nonetheless imposes some general requirement upon the
district court [even where neither subsection (1) nor (2) of section
3553(c) is applicable]. The language reads: “The court, at the time
of sentencing, shall state in open court the reasons for its imposition
of the particular sentence, and, if the sentence . . . .” 18 U.S.C. §
3553(c) (emphasis added). If the emphasized “and” were not in the
statute, plainly no statement of reasons would be necessary absent
either condition set forth in subsections (1) or (2). However, the
“and” exists and must be given meaning: some statement of reasons
is required, even if the more specific and detailed reasons of
subsections (1) and (2) are not. We will not read the “and” out of the
statute: We avoid any statutory interpretation that renders any section
superfluous and does not give effect to all of the words used by
Congress.
United States v. Lockard, 910 F.2d 542, 545 (9 th Cir. 1990) (quotation omitted).
The United States’ reliance on United States v. Garcia, 919 F.2d 1478
2
(10 Cir. 1990), is misplaced. In Garcia, this court held that it did not have
th
jurisdiction to review a claim that the district court had erred in sentencing a
defendant at a particular point within an otherwise proper sentencing guideline
range. 919 F.2d at 1479. In so holding, the Garcia court noted that because the
defendant’s sentencing range was from one to seven months, the district court was
not required to state its reasons for sentencing the defendant at a particular
point within that range. See id. at 1482 (“Section 3553(c) explicitly
contemplates that the district court need not state its reasons for imposing
sentence at a particular point unless the applicable range exceeds twenty-four
months.”); 18 U.S.C. § 3553(c)(1) (providing that if a sentence imposed “is of the
kind, and within the range, described in subsection (a)(4) and that range exceeds
24 months,” the sentencing court must state on the record “the reason for
imposing a sentence at a particular point within the range”). As noted above,
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Upon review of the transcript of the sentencing hearing, this court agrees
with the parties that the district court failed to state on the record its reason for
imposing consecutive sentences. Although the nature and severity of Rose’s
violations of the terms of his supervised release would certainly support the
imposition of consecutive terms, without any statement at all in the record of the
district court’s reasoning, this court is left in the “zone of [appellate]
speculation.” Underwood, 938 F.2d at 1091-92. As a consequence, this court is
unable to determine whether the district court’s decision to impose consecutive
terms constituted an abuse of discretion. See United States v. Williams, 46 F.3d
57, 58 (10 th Cir. 1995) (holding that district court’s decision to impose a
consecutive or concurrent sentence under § 3584(a) is reviewed for abuse of
discretion). Accordingly, we VACATE the imposition of consecutive sentences
and REMAND to the district court to resentence Rose consistent with the
mandate of § 3553(c) as set forth above. 3 In so doing, we reiterate that the
however, § 3553(c) extends to all cases and is not limited by the conditions to
applicability of subsections (1) & (2). Accordingly, the limitation on the
applicability of § 3553(c)(1) to cases involving sentencing ranges exceeding
twenty-four months discussed in Garcia is not relevant to the general obligation,
contained in § 3553(c), of the district court to state on the record its reasons for
imposing a particular sentence.
3
Rose asserts, without any citation to authority, that the district court’s
failure to comply with § 3553(c) renders its sentence invalid and entitles him to
concurrent terms as a matter of law. This ipse dixit assertion is contrary to our
precedent. As noted by the United States, the appropriate relief when a district
court fails to comply with § 3553(c) is to remand the case to the district court for
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district court need not expressly weigh each of the § 3553(a) factors on the
record. Instead, the district court need only “consider 18 U.S.C. § 3553(a) en
masse and state its reasons for imposing a given sentence.” Burdex, 100 F.3d at
886; see also Underwood, 938 F.2d at 1092 (holding that a district court
statement of reasoning pursuant to § 3553(c) “does not have to be
particularized”).
resentencing. See United States v. Underwood, 938 F.2d 1086, 1092 (10 th Cir.
1991).
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