RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0015p.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. 08-4368
v.
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Defendant-Appellant. -
JAMES HALL,
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Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 07-00485-001—Christopher A. Boyko, District Judge.
Decided and Filed: January 18, 2011
Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
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COUNSEL
ON BRIEF: Amy B. Cleary, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Joseph M. Pinjuh, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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SILER, Circuit Judge. James Hall pleaded guilty to five drug charges. He now
appeals the procedural and substantive reasonableness of his sentence. For the following
reasons, we AFFIRM.
1
No. 08-4368 United States v. Hall Page 2
BACKGROUND
In 2007, Hall pleaded guilty to four counts of distribution of cocaine base and
one count of possession with the intent to distribute cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B) and (C). In his plea agreement, Hall reserved the right
to appeal his sentence if the district court applied an offense level greater than 27 to
determine his sentencing range under the Guidelines.
In 2008, Hall was convicted of aggravated murder and possession of a weapon
under a disability in Ohio state court. At Hall’s state trial, the state argued that Hall
murdered Jeff Queen in retaliation for Queen’s cooperation with law enforcement that
led to Hall’s federal drug charges. In May 2008, the Mahoning County Court of
Common Pleas sentenced Hall to a term of imprisonment for life without parole for
aggravated murder. It also sentenced Hall to a three-year term of imprisonment for a
firearm specification under the aggravated-murder conviction and an additional five-year
term of imprisonment for Hall’s conviction for possession of a firearm under a disability.
Hall was ordered to serve these sentences consecutively to one another and to his life
sentence for aggravated murder.
The district court here sentenced Hall in August 2008. When determining Hall’s
advisory sentencing range under the Guidelines, the district court initially applied a base
offense level of 30.1 In light of the facts surrounding Hall’s state murder conviction, the
district court applied a cross-reference in USSG § 2D1.1 (Nov. 2007) to enhance Hall’s
offense level. USSG § 2D1.1(d)(1) requires that, “[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C. § 1111,” then the offense
level in USSG § 2A1.1 should be applied. Under § 2A1.1(a), the offense level for first
degree murder is 43. With this enhancement and a three-point deduction for Hall’s
acceptance of responsibility, Hall’s offense level was 40.
1
Both the probation office and the district court applied the 2007 edition of the United States
Sentencing Guidelines Manual to determine Hall’s advisory sentencing range.
No. 08-4368 United States v. Hall Page 3
The court then calculated Hall’s criminal history score. After initially assigning
Hall nine criminal history points, it added three points for the offense listed in paragraph
58 of Hall’s presentence report. Paragraph 58 listed Hall’s aforementioned state
convictions for aggravated murder and possession of a firearm under a disability.
Without specifying which of these convictions justified the additional three points, the
district court brought Hall’s total number of criminal history points to 12, thereby setting
Hall’s criminal history category at V. With an adjusted offense level of 40 and a
criminal history category of V, the court determined Hall’s advisory sentencing range
under the Guidelines to be between 360 months’ imprisonment and life.
The district court then sentenced Hall to 480 months’ imprisonment for three
counts and 240 months’ imprisonment for the remaining two. It set those punishments
to run concurrently with one another but consecutively to Hall’s state sentences. Hall
objected to the use of his state murder conviction to enhance his base offense level under
the Guidelines. He did not, however, object to the district court’s setting his federal
sentence to run consecutively to his state sentences. He now appeals his federal
sentence, arguing that it is procedurally unreasonable because it does not run
concurrently with his state sentences, and that it is substantively unreasonable because
the offense level in § 2A1.1(a) was not supported by empirical data when established by
the Sentencing Commission.
DISCUSSION
A. Standard of Review
We review a district court’s sentencing determination for an abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007). A district court abuses its discretion when
it imposes a sentence that is either procedurally or substantively unreasonable. Id.
A sentence is procedurally unreasonable where a district court fails to calculate
or improperly calculates the Guidelines range, treats the Guidelines as mandatory, fails
to consider the 18 U.S.C. § 3553(a) sentencing factors, selects a sentence based upon
erroneous facts, or fails to adequately explain its chosen sentence and its deviation, if
No. 08-4368 United States v. Hall Page 4
any, from the Guidelines range. United States v. Alexander, 543 F.3d 819, 822 (6th Cir.
2008) (citing Gall, 552 U.S. at 51). A sentence is substantively unreasonable if 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. Baker, 559 F.3d 443, 448 (6th Cir. 2009)
(quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)).
B. Consecutive Sentences
Hall argues that his federal sentence is procedurally unreasonable because the
district court erroneously applied USSG § 5G1.3 when setting his federal sentence to run
consecutively to his state sentences. Because Hall failed to object to this decision by the
district court, we review Hall’s appeal on this point only for plain error.
Where a district court has considered the factors listed in § 3553(a) and the
applicable Guidelines and policy statements in effect at the time of sentencing, “the
district court’s decision whether to impose a concurrent or consecutive sentence pursuant
to § 5G1.3 is discretionary.” United States v. Johnson, 553 F.3d 990, 997-98 (6th Cir.
2009) (quoting United States v. Watford, 468 F.3d 891, 916 (6th Cir. 2006)). But, this
discretion is not “unfettered.” Johnson, 553 F.3d at 998. The record on appeal should
show that the district court “turned its attention to § 5G1.3(c) 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)). A
sentencing court, then, should “make[] generally clear the rationale under which it has
imposed the consecutive sentence and [should] seek[] to ensure an appropriate
incremental penalty for the instant offense.” Id. (quoting United States v. Owens,
159 F.3d 221, 230 (6th Cir. 1998)).
Hall argues that the district court failed to sufficiently reference § 5G1.3 when
explaining its reasons for setting Hall’s federal sentence to run consecutively to his state
sentences. Evidence that the district court considered § 5G1.3 normally involves some
explicit reference to that provision—something that the district court did not do here.
See United States v. Martin, 371 F. App’x 602, 604-05 (6th Cir. 2010) (citing United
No. 08-4368 United States v. Hall Page 5
States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994)). But a sentencing court need not
do so if there is some other evidence in the record that it considered the section. See
United States v. Berry, 565 F.3d 332, 342-43 (6th Cir. 2009).
When explaining why it set Hall’s federal sentence to run consecutively to his
state sentences, the district court stated that “there is a reference to the guidelines about
consecutive sentences. I believe we had discussed that in chambers.” This indicates that
the district court considered § 5G1.3 when making its decision. Moreover, the
commentary to § 5G1.3 provides a district court several considerations to make when
setting a defendant’s sentence to run consecutively to another undischarged sentence
under § 5G1.3(c). The court should consider the type and length of the prior
undischarged sentence, the time likely to be served on the undischarged sentence before
release, and whether the undischarged sentence originated in state rather than federal
court. USSG § 5G1.3, comment. (n.3(a)). The district court here appears to have made
these considerations, stating:
This is a very unique situation because you [Hall] have already been
convicted of aggravated murder . . . [y]ou can’t get any further deterrence
. . . [but] the appellate process has not run through [on the state
convictions] . . . and I can’t rely upon a state conviction to take care of
a federal sentence.
Though the district court did not mention § 5G1.3 specifically, in light of its entire
explanation, it is evident that the district court considered § 5G1.3(c) and adequately
explained its reasons for applying it when sentencing Hall.
Hall argues, however, that a proper interpretation of § 5G1.3 would have required
the district court to set his federal sentence to run concurrently with his state sentences
under § 5G1.3(b). Section 5G1.3(b) states that if “a term of imprisonment resulted from
another offense that is relevant conduct to the instant offense of conviction” under USSG
§§ 1B1.3(a)(1), (a)(2) or (a)(3) and “was the basis for an increase in the offense level for
the instant offense,” then the instant offense shall be imposed “to run concurrently to the
remainder of the undischarged term of imprisonment.” The commentary to § 5G1.3
clarifies that subsection (b) applies “in cases in which all of the prior offense [] is
No. 08-4368 United States v. Hall Page 6
relevant conduct to the instant offense . . . . Cases in which only part of the prior offense
is relevant conduct to the instant offense are covered under subsection (c).” USSG
§ 5G1.3, comment. (n.2(A)) (emphasis added). Section 5G1.3(c) provides, on the other
hand, that “[i]n any other case involving an undischarged term of imprisonment, the
sentence for the instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of imprisonment.”
Both Hall and the government agree that, by applying the cross-reference in
§ 2D1.1(d)(1), the district court treated the facts of Hall’s state murder conviction as
relevant conduct. Section 1B1.3(a)(1) defines the relevant conduct determining a
defendant’s base offense level under the Guidelines, in part, as “acts and omissions” that
occurred while “attempting to avoid detection or responsibility for that offense.” The
murder of an informant in retaliation for his cooperation with law enforcement fits
squarely within this definition. Hall argues, then, that because the district court used this
relevant conduct to enhance his base offense level under § 2D1.1(d)(1), it should have
applied § 5G1.3(b) instead of § 5G1.3(c).
Application of § 5G1.3(b) or (c) depends, however, upon whether all of the
previous offense is relevant conduct to the instant offense. The answer to this question
turns on whether the term “offense” can be read to refer to more than one conviction.
For example, if Hall’s two state convictions are treated as separate “offenses,” then
§ 5G1.3(b) would control because “all” of Hall’s state murder conviction was considered
when enhancing his federal sentence. On the other hand, if Hall’s two state convictions
are treated as one “offense,” then § 5G1.3(c) would apply because only “part” of Hall’s
prior “offense” was used to enhance his base offense level under the Guidelines.
The Second Circuit treats an incident giving rise to multiple convictions as a
single “offense” for the purpose of applying § 5G1.3.2 In United States v. Slutzkin, the
2
The other circuits addressing this question have done so with similar results. See United States
v. Bauer, 626 F.3d 406, 409 (8th Cir. 2010) (holding that § 5G1.3(c) applied because the defendant’s case
involved multiple undischarged terms of imprisonment, only one of which was used to enhance his instant
sentence); United States v. Rogers, 521 F.3d 5, 12 (1st Cir. 2008) (treating multiple convictions as a single
offense for purposes of § 5G1.3(b)); and United States v. Kimble, 107 F.3d 712, 714-15 (9th Cir. 1997)
(holding that § 5G1.3(c) applied where defendant’s undischarged sentence resulted from multiple
No. 08-4368 United States v. Hall Page 7
defendant was convicted in state court on two counts of attempted assault and one count
of carrying a pistol without a permit arising from an altercation with law enforcement.
382 F. App’x 65, 66 (2d Cir. 2010). From this incident, the defendant was also federally
convicted of intent to distribute cocaine base. Id. at 67. When sentencing the defendant
in federal court, the district court enhanced the defendant’s base offense level due to the
defendant’s possession of a dangerous weapon—the pistol—pursuant to § 2D1.1(b)(2).
Id. The district court then applied § 5G1.3(c) to set the defendant’s federal sentence to
run consecutively to his state sentence. Id.
The Second Circuit affirmed this application of § 5G1.3(c), holding that, even
if the defendant’s conviction for possession of a pistol was “relevant conduct” to his
federal offense under § 1B1.3, the defendant “was also sentenced in state court for two
counts of attempted assault.” Id. at 69. These assault convictions were neither relevant
conduct to the instant federal offense nor were they a basis for an increase in the
defendant’s offense level. As a result, at most, “only part of the prior offense [was]
relevant conduct,” and the court held that the defendant was properly sentenced under
§ 5G1.3(c). Id. (emphasis added). We agree with the Second Circuit’s analysis on this
issue.
Under this definition of what constitutes an “offense” under § 5G1.3, the district
court here properly applied § 5G1.3(c) in setting Hall’s federal sentence to run
consecutively to his undischarged state sentences. Hall’s conduct in Queen’s murder
resulted in two state convictions: aggravated murder and the unlawful possession of a
firearm. The district court used only one of these convictions—murder—to enhance
Hall’s base offense level. Section 2D1.1(d)(1) permits only conduct constituting murder
under 18 U.S.C. § 1111 to be used to enhance a defendant’s sentence, necessarily
excluding Hall’s state firearm conviction. Furthermore, the district court appeared to
exclude Hall’s state firearm conviction from use as relevant conduct by using the
conviction to enhance Hall’s criminal history score. As a result, because it used only
“part” of Hall’s state offense as relevant conduct to enhance the base offense level under
convictions, only one of which was used to enhance his instant sentence).
No. 08-4368 United States v. Hall Page 8
the Guidelines, the district court was free to use its discretion in setting Hall’s federal
sentence to run consecutively to his undischarged state sentences. Because the district
court sufficiently explained its rationale for doing so and considered the §3553(a)
sentencing factors, it did not commit plain error in its application of § 5G1.3(c) when
sentencing Hall.
C. The District Court’s Enhancement of Hall’s Base Offense Level
Hall also argues that his sentence is substantively unreasonable because it was
enhanced using a Guideline offense level that was not based upon empirical data. United
States Sentencing Commission, “Fifteen Years of Guidelines Sentencing,” 47 (2004).
Hall cites United States v. Grant, No. 8:07CR242, 2008 WL 2485610, at *4 (D. Neb.
2008), for the proposition that, as a result, the offense level for murder in § 2A1.1 is a
less reliable appraisal of a fair sentence.
A sentencing court is free to reject a Guidelines range based on policy
considerations. United States v. Janosko, 355 F. App’x 892, 895 (6th Cir. 2009)
(recognizing this principle in the child-pornography context). The Seventh Circuit has
thus noted that “rejecting a guideline [because it] lack[s] a basis in data, experience, or
expertise would [] be proper.” United States v. Aguilar-Huerta, 576 F.3d 365, 367 (7th
Cir. 2009). But a district court is not “required to consider . . . an argument that a
guideline is unworthy of application in any case because it was promulgated without
adequate deliberation.” Id. at 367-68 (emphasis in original). Under the presumption of
reasonableness that we give to a district court’s within-Guidelines sentence, “we will not
second-guess [a district court’s] decision[] . . . simply because the particular Guideline
is not empirically-based.” Janosko, 355 F. App’x at 895 (quoting United States v.
Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009)).
The district court here explicitly considered the § 3553(a) factors when
sentencing Hall and explained that Hall’s conduct in committing murder—his lack of
emotion, connection to drug trafficking and willingness to kill for hire—justified such
a severe punishment. Even if the offense level in § 2A1.1(a) does not fit every murder,
Hall has not shown that it fails to fit this murder. As a result, the district court did not
No. 08-4368 United States v. Hall Page 9
abuse its discretion in relying upon the base offense level in § 2A1.1(a) to determine
Hall’s appropriate sentence.
AFFIRMED.