NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0119n.06
Case No. 18-3580
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 13, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
TREMAINE JACKSON, ) OHIO
)
Defendant-Appellant. )
BEFORE: KEITH, STRANCH, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. United States Sentencing Guideline
§ 5G1.3(c)1 states that a sentence “shall” run concurrently to any “anticipated” state sentence for
relevant conduct. The defendant in this case was charged with a state crime for relevant conduct
at the time of his federal sentencing. Thus, his situation falls squarely within § 5G1.3(c). Without
explaining why, the district court did not follow § 5G1.3(c)’s guidance, and instead ran the
defendant’s sentence consecutively to any anticipated state sentence for relevant conduct. This
Court cannot review the district court’s rationale for deviating from § 5G1.3(c) because the district
court did not discuss it on the record. Therefore, the defendant’s sentence is procedurally
unreasonable, and we vacate and remand for resentencing.
1
All further citations are to the Sentencing Guidelines unless otherwise noted.
Case No. 18-3580, United States v. Jackson
I. Background
On February 1, 2018, Defendant-Appellant Tremaine Jackson pled guilty to one count of
possession of a firearm and ammunition while under indictment, in violation of 18 U.S.C. § 922(n).
The United States Probation Department prepared a presentence report that calculated Jackson’s
total offense level at 17 with a criminal history category of VI. Given these two factors, the
recommended sentencing range was 51 to 63 months’ imprisonment. Because the statutory
maximum for the offense is five years, the high end of the range was reduced to 60 months’
imprisonment. The presentence report did not identify any grounds for a departure from the
sentence range. Jackson did not object to the accuracy of the presentence report.2
At the time of federal sentencing, Jackson was also in trouble with the state. He was
serving an undischarged state prison sentence for drug and evidence-tampering charges, and he
had four other state criminal cases pending against him: two for felonious assault, one for gun-
related charges and drug trafficking, and another for having a weapon while under disability and
receiving stolen property. This lattermost charge arose out of the same conduct that led to
Jackson’s charge in the underlying federal case. At the sentencing hearing, the prosecution advised
the district court that the district attorney would dismiss the relevant conduct case if it was based
on the same conduct as the federal count.
The district court sentenced Jackson to a mid-guidelines range of 52 months’
imprisonment. Although the district court “[felt] that a high[-]end sentence or probably even an
above[-]guideline sentence is justified in this case, . . . [the district court] agree[d] . . . with the
government’s recommendation that perhaps a mid[-]guideline range sentence will be sufficient.”
2
Jackson’s counsel did object to one portion of the report but withdrew that objection after
conducting further investigation into the underlying facts of conviction.
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Case No. 18-3580, United States v. Jackson
Such a sentence was “necessary to promote respect for the law and to protect the public from future
crimes by [Jackson],” and would act as a “deterrent from future criminal conduct and to permit
[Jackson] the opportunity to obtain needed” support.
Beyond the length of the sentence, the district court also noted that it “must determine
whether to impose any sentence in this case concurrent, consecutive, or partially concurrent, . . .
to [Jackson’s] undischarged state court sentences.” During the hearing, Jackson’s counsel
requested that the federal sentence run concurrently to any state sentence because it was unclear
how the state-court judge would sentence Jackson. Denying this request, the district court chose
to run the sentence “consecutive[ly] to the undischarged state court sentences and to any state court
sentences that may be imposed relative to any pending cases.” This decision, the district court
contended, was “necessary and appropriate because of . . . Jackson’s multiple firearm related
offenses and his unwilling [sic] to forego possession of weapons and the fact that the court finds
that he is a risk to the community and believes [that running the sentences consecutively is
necessary] to protect the public[.]”
After setting out the conditions of Jackson’s sentence, the district court asked the parties if
there were any objections. At that time, Jackson’s only objection was to how much “jail credit
time” he would be receiving. The parties discussed Jackson’s complicated custody situation, given
his undischarged state sentence and pending state charges, and then the district court deferred to
the Bureau of Prisons to calculate Jackson’s jail credit time for time served, saying it was in their
“purview” to do so. The district court then asked whether there were any additional objections to
the sentence, to which Jackson’s counsel responded, “No, Your Honor.” Jackson filed a timely
appeal.
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Case No. 18-3580, United States v. Jackson
II. Analysis
A defendant may challenge both the procedural and substantive reasonableness of his
sentence. United States v. Petrus, 588 F.3d 347, 351 (6th Cir. 2009). Jackson argues that his
sentence was procedurally unreasonable.3 For a sentence to be procedurally reasonable, the district
court must do the following things: properly calculate the Guidelines range, treat the Guidelines
as non-mandatory, consider the § 3553(a) factors, avoid imposing a sentence based on clearly
erroneous facts, and “adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Jackson argues that the district court did
not satisfy this last element—adequately explaining the chosen sentence—because the district
court did not consider § 5G1.3(c), which calls for concurrent sentences for relevant conduct. We
agree with Jackson that the district court did not sufficiently address § 5G1.3(c). Therefore, we
find the sentence to be procedurally unreasonable.
As an initial matter, we must determine which standard of review to apply to Jackson’s
argument. When a defendant lodges a specific objection to the district court, we review the
reasonableness of the sentence for an abuse of discretion, but when the defendant does not present
an adequate objection to the district court, we review the reasonableness of the sentence for plain
error. United States v. Harmon, 607 F.3d 233, 236 (6th Cir. 2010). To avoid a plain error standard,
the defendant “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) (internal quotation marks omitted). “A specific objection provides the district
3
Jackson also argues that his sentence was substantively unreasonable. However, because we find
that the sentence was procedurally unreasonable, we do not address Jackson’s arguments on
substantive reasonableness.
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Case No. 18-3580, United States v. Jackson
court with an opportunity to address the error in the first instance and allows this court to engage
in more meaningful review.” Id. When presented the opportunity at the sentencing hearing,
Jackson’s counsel objected as follows regarding the possible concurrent or consecutive nature of
the sentence:
I’m going to ask for concurrent time. Because I don’t know necessarily that
Judge Brian Corrigan isn’t going to give him consecutive time in Cuyahoga County,
and what could end up for my client is he could very easily end up spending the
next decade in the penitentiary, and I would ask the court to understand that he’s a
young man with an above-average intelligence and he will have an opportunity to
become a viable member of the community if he can get himself straightened out
while he’s going to take a time out from society for the next handful of years.
Jackson clearly set forth his concern to the district court regarding the impact of running his federal
sentence consecutively to any sentence to be imposed from his pending state court charges. This
objection—which cited the uncertainty of the pending state charges and the real possibility of
excessive punishment—was specific enough to give the district court the opportunity to address
any error and for this Court to engage in more meaningful review. Id. Therefore, we review the
district court’s decision to impose the sentence consecutively to the undischarged and pending
state sentences for an abuse of discretion. See United States v. Moore, 512 F. App’x 590, 592-593
(6th Cir. 2013) (analyzing district court’s decision to impose a consecutive or concurrent sentence
for abuse of discretion where, like here, defendant raised his procedural argument before the court
imposed its sentence and asked for objections).
Next, we turn to the merits of Jackson’s appeal, which focus on whether the district court
adequately considered § 5G1.3(c). Pursuant to § 5G1.3(c), when “a state term of imprisonment is
anticipated to result 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
anticipated term of imprisonment.” The Government concedes that one of Jackson’s pending state
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Case No. 18-3580, United States v. Jackson
charges was for relevant conduct, Appellee Br. at 17, and the district court was aware of that
charge. Therefore, § 5G1.3(c) applies, and the district court needed to expressly consider it.
United States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994) (vacating sentence and remanding
because “the judge did not expressly turn his attention to § 5G1.3(c) and Application Note 3 of the
commentary.”). To satisfy its obligation, “[t]he 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.’” United States v. Hall, 632 F.3d 331,
335 (6th Cir. 2011) (citation omitted).
The record here does not show that the district court “turned its attention to § 5G1.3(c)
and the relevant commentary[.]” Id. The district court did not refer to § 5G1.3(c) by name, did
not discuss its language, and did not consider any of the elements laid out in the commentary
except for the § 3553(a) factors. On this record, we cannot review the rationale the district court
adopted in deviating from § 5G1.3(c). Therefore, the sentence is procedurally unreasonable.
The Government argues that this section of the Guidelines is inapposite because the district
attorney had represented (to the prosecutor, not the court) that any state charge for relevant conduct
would be dismissed, meaning that the state sentence was not in fact “anticipated.” We do not
agree. While the Guidelines do not define what “anticipated” means within § 5G1.3(c), and we
have not previously answered that question, our Sister Circuits have held that an “anticipated”
sentence “encompass[es] sentences associated with state charges for relevant conduct that are
pending at the time of a defendant’s federal sentencing.” United States v. Olmeda, 894 F.3d 89,
92–93 (2d Cir. 2018); see also Setser, 566 U.S. at 233 (considering a state sentence to be
“anticipated” when the defendant had a pending state charge at the time of federal sentencing);
United States v. Looney, 606 F. App’x 744, 748 (5th Cir. 2015) (per curiam) (holding that “the
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district court has the discretion to impose a sentence concurrent with a future state sentence when
state charges are pending against the defendant”). We agree that a state sentence is considered
“anticipated” for purposes of § 5G1.3(c) when state charges are pending.
At the time of Jackson’s federal sentencing, he had a pending state charge for relevant
conduct; therefore, a state sentence for relevant conduct was anticipated, and § 5G1.3(c) applies.
Although the district attorney may have represented to the prosecution that any relevant conduct
charges would be dismissed, this representation does not change the fact that a state charge for
relevant conduct was actually pending at that time. Under these circumstances, we consider the
state sentence to be anticipated for purposes of § 5G1.3(c). The district court was required to
“turn[] its attention” to § 5G1.3(c) and to explain its rationale for deviating from it. Hall, 632 F.3d
at 335 (citation omitted). Because the district court did not demonstrate on the record that it did
either of these things, we find Jackson’s sentence to be procedurally unreasonable.
III. Conclusion
For the aforementioned reasons, we vacate and remand for resentencing.
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