NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0147n.06
No. 11-3898
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 12, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SHAWN FEARS, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: CLAY, COOK, and ROTH,* Circuit Judges.
CLAY, Circuit Judge. Defendant Shawn Fears was indicted along with twenty-four others
in a fifty-nine count indictment for crimes arising out of a conspiracy to distribute crack cocaine.
After pleading guilty to conspiracy to possess with the intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), & 846, the district court sentenced Defendant to 120 months’
imprisonment on the conspiracy count and 32 months’ imprisonment for violating the terms of his
supervised release to run consecutively. Defendant appeals his sentence claiming that it was
procedurally unreasonable. For the reasons that follow, we AFFIRM Defendant’s sentence.
*
The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals
for the Third Circuit, sitting by designation.
No. 11-3898
BACKGROUND
In 1992, Defendant Shawn Fears pleaded guilty to a federal cocaine distribution offense. For
that crime, Fears was sentenced to 240 months’ imprisonment followed by ten years of supervised
release. He was released from prison in 2008 and began his ten-year term of supervised release.
On March 2, 2011, a federal grand jury for the Northern District of Ohio indicted Defendant,
charging him with one count of conspiracy to possess with the intent to distribute five kilograms or
more of cocaine and/or fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), & 846; one count of conspiracy to possess with the intent to distribute and conspiracy
to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
& 846; one count of attempted possession with the intent to distribute five hundred grams or more
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 846; and thirteen counts of use
of a communication facility to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b).
Defendant pleaded guilty to conspiracy to possess with the intent to distribute cocaine. The district
court sentenced Defendant to 120 months’ imprisonment for the conspiracy count and 32 months’
imprisonment for violating the terms of his supervised release with the two sentences to run
consecutively to one another.
STANDARD OF REVIEW
We generally review sentences for “reasonableness under an abuse of discretion standard,”
evaluating both the procedural and substantive reasonableness of the sentence. United States v.
Brown, 579 F.3d 672, 677 (6th Cir. 2009). In doing so, we review the district court’s legal
conclusions de novo and its findings of fact for clear error. Id. However, where, as here, a defendant
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No. 11-3898
fails to object to his sentence, review is limited to plain error. United States v. Herrera-Zuniga, 571
F.3d 568, 589 (6th Cir. 2009); see also Fed. R. Crim. P. 52(b). Plain error requires that the
defendant show (1) error, (2) that is clear or obvious, and (3) that affects his “substantial rights”; (4)
if those elements are satisfied, this Court may exercise its discretion to remedy the error if it
“seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett v.
United States, 556 U.S. 129, 135 (2009).
DISCUSSION
Defendant argues that the district court was procedurally unreasonable in sentencing him for
two reasons. First, he claims that the district court erred in sentencing him to consecutive terms of
imprisonment because the district court treated the policy statement in United States Sentencing
Guidelines Manual section 7B1.3(f) as mandatory. Second, he claims that the district court failed
to adequately justify the consecutive sentences.
1. U.S.S.G. § 7B1.3(f)
Section 7B1.3(f) contains the policy statement that “[a]ny term of imprisonment imposed
upon the revocation of probation or supervised release shall be ordered to be served consecutively
to any sentence of imprisonment that the defendant is serving.” U.S.S.G. § 7B1.3(f). Though this
statement reads as mandatory, as with the rest of the Guidelines, it “is not binding on the district
court, and construing it to be mandatory would be reversible error.” United States v. Johnson, 640
F.3d 195, 208 (6th Cir. 2011); see also Herrera-Zuniga, 571 F.3d at 581 (“After United States v.
Booker, 543 U.S. 220 (2005), the sentencing Guidelines are ‘advisory’ only.”). In Defendant’s case,
however, the district court did not construe § 7B1.3(f) as mandatory.
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No. 11-3898
Defendant attempts to cherry-pick a few statements by the district court to support his claim.
Defendant first points to the district court’s statement that Defendant’s guilty plea would “expose[
him] to additional prison time” for violation of supervised release. Far from showing that the district
court believed that any supervised-release sentence had to be run consecutive, this statement was
intended to inform Defendant of the fact that by pleading guilty to the conspiracy charge, he would
also be violating the terms of his prior case’s supervised release.
Defendant next points to this exchange between the prosecutor and the district court.
PROSECUTOR: [Defendant] is in violation of his supervised release, and
although I don’t recall getting the official - - if an official
notification violation came out. I think he’s exposed to about
a year and a half to two years, I think, as a result of that
violation. I certainly defer to the expert here, and I believe
that that has to be consecutive, if I recall correctly.
THE COURT: Correct. It looks like his range right now is 27 to 33 [months’
imprisonment].
Defendant contends that this shows that the district court agreed with the prosecutor that the
sentences had to be consecutive. Contrary to Defendant’s contention, however, the district court was
not agreeing with that aspect of the statement. The district was instead correcting the prosecutor that
the supervised-release violation exposed Defendant not to “about a year and a half to two years” but
rather to “27 to 33” months.
Our conclusion that the district court did not treat U.S.S.G. § 7B1.3(f) as mandatory is further
bolstered when the entirety of the sentencing hearing is considered. At various times, the district
court discusses the advisory nature of the Guidelines and its discretion in determining the appropriate
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No. 11-3898
sentence. Therefore, we do not find that the district court treated Guidelines section 7B1.3(f) as
mandatory in sentencing Defendant.
2. Justification for Consecutive Sentences
Defendant next argues that his sentence was procedurally unreasonable because the district
court failed to adequately justify the consecutive sentences. In Rita v. United States, 551 U.S. 338
(2007), the Supreme Court mandated that a sentencing judge “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.” Id. at 356. We have recently elaborated on what a district
court must do in the context of consecutive sentences.
In order to ensure the ability for “meaningful appellate review,” we held in United States v.
Cochrane, 702 F.3d 334 (6th Cir. 2012), that “a district court must indicate on the record its rationale
[for imposing consecutive sentences], either expressly or by reference to a discussion of relevant
considerations contained elsewhere.” Id. at 346. Specifically, we stated, “What the district court
may not do is say nothing at all” with respect to the consecutive nature of the sentences, id., which
is what the district court did here. Although the district court listed the § 3553(a) factors and
discussed each aspect of the presentence report, there is nothing tying these discussions to the
consecutive nature of the sentence imposed, rather than to the rationale for the length of the
conspiracy sentence. Therefore, we conclude that the district court committed Cochrane error in
failing to “make ‘generally clear the rationale under which it has imposed the consecutive sentence.’”
Cochrane, 702 F.3d at 346 (quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)).
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No. 11-3898
Having concluded that the district court erred, we next turn to the three additional prongs of
plain error review that Defendant must prove in order to warrant reversal. First is the question of
whether the error was clear or obvious. Although Cochrane came down after the district court
imposed its sentence on Defendant, we have held that for the purposes of plain error review the error
must be “plain under current law,” which is “the law that exists at the time of review.” United States
v. Crosgrove, 637 F.3d 646, 656–57 (6th Cir. 2011). Therefore, because the district court’s
explanation was clearly insufficient under Cochrane, Defendant has met the second prong of plain
error review. He has, however, failed to make any argument with respect to the prejudice he suffered
as a result of this error, which he is required to do under the third prong of plain error. See United
States v. Olano, 507 U.S. 725, 734 (1993) (“It is the defendant rather than the Government who bears
the burden of persuasion with respect to prejudice.”). Where, as here, Defendant received the
sentence that the Guidelines advised that he should receive (i.e., a consecutive one), see U.S.S.G.
§ 7B1.3(f), we are not persuaded that he was prejudiced by this error and will not exercise our
discretion under plain error review to remand this case for re-sentencing. See Puckett, 556 U.S. at
135.
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s sentence.
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