NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0195n.06
12-3763
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Feb 21, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MONTORIO WATKINS, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: GUY, DAUGHTREY, and WHITE, Circuit Judges.
PER CURIAM. Defendant Montorio Watkins was originally convicted of being a
felon in possession of a firearm and sentenced to 36 months in prison, to be followed by
three years of supervised release. He was on supervised release when he was charged
with violation of the conditions of his release, involving criminal activity that resulted in two
felony convictions in state court. Following a hearing, the district court revoked Watkins’s
supervised release, imposed a 24-month term of imprisonment with no supervised release
to follow, and ordered that the new sentence be served consecutive to Watkins’s
undischarged state sentence. On appeal, Watkins seeks a remand for resentencing,
contending that the district court “imposed a procedurally unreasonable sentence by
rejecting [his] request to run the supervised release violation sentence concurrent to the
undischarged State of Ohio sentence he was serving, thus treating the policy provisions
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of USSG § 7B1.3(f) as mandatory.” Even if the district court did not consider a consecutive
sentence mandatory, Watkins argues, “the court failed to explain the reasoning as to wh[y]
a wholly consecutive sentence was appropriate in this case.”
After a study of the relatively brief record in this appeal, we cannot divine from the
transcript of the revocation hearing whether or not the district court considered consecutive
sentencing mandatory under § 7B1.3(f). That provision is, of course, “a policy statement
[that] 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, 208-09 (6th Cir. 2011). That
issue aside, we nevertheless conclude that resentencing is required under our intervening
opinion in United States v. Cochrane, 702 F.3d 334 (6th Cir. 2012), because the record is
also silent with regard to the rationale for the district court’s imposition of consecutive
sentencing.
We review sentences imposed following revocation of supervised release under an
abuse-of-discretion standard for reasonableness, which has both a procedural and a
substantive component. United States v. Kontrol, 554 F.3d 1089, 1091 (6th Cir. 2009).
To determine whether a sentence is procedurally reasonable, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United
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States, 552 U.S. 38, 51 (2007); see also United States v. Bolds, 511 F.3d 568, 581 (6th
Cir. 2007) (describing the three steps in a procedural reasonableness analysis). “The
statute governing supervised release . . . requires the district court to consider a subset of
the § 3553(a) factors,” based on “‘sufficient evidence in the record to affirmatively
demonstrate the court’s consideration of them.’” Johnson, 640 F.3d at 203 (quoting United
States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006)). A sentence is substantively
reasonable if “the district court selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Brown, 501 F.3d
722, 724 (6th Cir. 2007) (citation omitted).
“[A] district court commits plain error when it mistakenly believes that the policy
statements contained in Chapter 7 of the Sentencing Guidelines limit its discretion.” United
States v. Gibbs, 506 F.3d 479, 487 (6th Cir. 2007) (citations omitted). However, as noted
above, the record in this case does not clearly establish that the district court mistakenly
believed that consecutive sentencing was mandatory under § 7B1.3(f). The judge did give
a virtually verbatim recitation of that provision, announcing – without further qualification
– that “any term of imprisonment imposed upon the revocation shall be ordered to be
served consecutive to any sentence of imprisonment that the defendant is serving whether
or not the sentence of imprisonment being served resulted from the conduct that is the
basis of the revocation of supervised release.” Despite the lack of qualification, however,
at other points in the hearing the district judge recognized that Chapter 7 of the Sentencing
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Guidelines, including § 7B1.3(f), represented merely policy statements by the Sentencing
Commission and, presumably, not mandatory sentencing requirements.
But, even if the district court’s understanding of § 7B1.3(f)’s import is not entirely
clear from the record, what is clear is that the court imposed a procedurally and
substantively reasonable sentence of 24 months, after reviewing the record and the
relevant § 3553(a) factors. The court noted that Watkins’s underlying state convictions
were for two instances of aggravated drug-trafficking, one of which involved an assault on
a police officer. The district judge next addressed Watkins, saying that “the Court finds that
a guideline sentence is an appropriate sentence in this case because of the threat that you
pose to the community and because you were just not in compliance with your supervised
release conditions” but instead “were engaging in criminal conduct.” The district court then
imposed a term of 24 months, ruling that it was “sufficient yet not greater than necessary
to comply with the sentencing purposes set forth in the sentencing statute, and, as well,
with the policy statements in Chapter 7 of the guidelines.”
After imposing the 24-month sentence, the district judge appeared ready to adjourn
court (“With that, anything further?”), when Watkins’s attorney renewed an earlier request
for concurrent sentencing. At that point, the judge expressed appreciation for the reminder
and said, only, “This [sentence] will run consecutive to the undischarged state court term
of imprisonment.” There was no reason given for the court’s decision to impose
consecutive sentencing. Indeed, what followed was a comment by the district judge on the
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“wonderful support system” the defendant’s family and employer could provide – potentially
a reason to allow concurrent sentencing rather than deny it – and a standard notice to
Watkins concerning his right to appeal.
Watkins did appeal, and while his appeal was pending, we issued the Cochrane
opinion clarifying the procedural requirements for a district court’s decision to impose
consecutive sentencing following revocation of supervised release. In Cochrane, as here,
the district court imposed terms of imprisonment that were “both procedurally and
substantively reasonable.” Cochrane, 702 F.3d at 345. And in Cochrane, as here, “the
district court provided no explanation whatsoever for its decision that Defendant’s two
sentences be served consecutively.” Id. at 346. After an analysis of the relevant statute,
guidelines, and case precedents, the Cochrane court held that the error required a remand
for resentencing. Id. at 347.
That analysis begins with the provisions in 18 U.S.C. § 3584, governing multiple
sentences of imprisonment:
(a) If multiple terms of imprisonment are imposed on a defendant at the
same time, or 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, except that the terms may not run
consecutively for an attempt and for another offense that was the sole
objective of the attempt.
(b) Factors to be considered in imposing concurrent or consecutive
terms.--The court, in determining whether the terms imposed are to be
ordered to run concurrently or consecutively, shall consider, as to each
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offense for which a term of imprisonment is being imposed, the factors set
forth in section 3553(a).
Thus, despite the fact that the advisory provision in § 7B1.3(f)1 of the Sentencing
Guidelines appears to make consecutive sentencing in the revocation setting mandatory,
we have held repeatedly that the statutory provision controls the determination, making it
discretionary and based on the same § 3553(a) sentencing factors that guide the length
of sentence. See, e.g., Johnson, 640 F.3d at 208; United States v. Sparks, 19 F.3d 1099,
1101 (6th Cir. 1994); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir. 1992).
But nothing in our prior opinions suggests that the discretion afforded the district
court in deciding between concurrent and consecutive sentencing is unfettered. Thus,
§ 3584(b) directs consideration of the § 3553(a) factors, and implicit in this provision is a
corollary requirement that the court’s reasons for its exercise of discretion appear on the
record. Otherwise, as we noted in Cochrane, on appeal “we are unable to review its
application of the § 3553(a) factors or its consideration of the advisory policy statement in
USSG § 7B1.3(f).” Cochrane, 702 F.3d at 346.
Satisfying the rule in Cochrane is not onerous:
1
“Any term of im prisonm ent im posed upon the revocation of probation or supervised release shall
be ordered to be served consecutively to any sentence of im prisonm ent that the defendant is serving, whether
or not the sentence of im prisonm ent being served resulted from the conduct that is the basis of the revocation
of probation or supervised release.”
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Although the district court was not required to state a “specific reason for a
consecutive sentence,” Johnson, 640 F.3d at 208–09 (internal quotation
marks omitted), it was nevertheless obliged to make “generally clear the
rationale under which it has imposed the consecutive sentence,” United
States v. Owens, 159 F.3d 221, 230 (6th Cir.1998). The district court need
not state its rationale explicitly, but may incorporate by reference a
discussion of the relevant considerations in another document such as the
Presentence Report. See United States v. Berry, 565 F.3d 332, 342–43 (6th
Cir. 2009). The district court may also make clear that its reasons for
choosing a substantive sentence and for running two sentences
consecutively are the same. See Johnson, 640 F.3d at 208 (finding that the
district court's rationales were “intertwined”). What the district court may not
do is say nothing at all. When deciding to impose consecutive sentences, we
hold that a district court must indicate on the record its rationale, either
expressly or by reference to a discussion of relevant considerations
contained elsewhere.
Id.
As occurred in this case, when the district court “sentenced [Cochrane] to serve
consecutive sentences, it simply stated that the sentence would be served consecutively,
even though [Cochrane] had requested a concurrent sentence at the hearing.” Id. As
here, the district court in Cochrane “did not even arguably consider any of the § 3553(a)
factors, as it was required to do by § 3584(b), such as [Cochrane’s] background, criminal
history, or the nature of the offense,” nor did it “indicate that its reasons for imposing
consecutive sentences were the same as those for which it determined the length of his
sentence” or “reference a discussion of the relevant considerations in a sentencing
document like the Presentence Report.” Id. at 346-67. The problem there, as here, was
a complete absence of a rationale for the district court’s decision to impose a consecutive
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sentence and, thus, “no way [for us] to review the reasonableness of that sentence.” Id.
at 347.
As we were forced to do in Cochrane, we must therefore VACATE the sentence
imposed on Watkins for violation of his conditions of supervised release and REMAND the
case to the district court for resentencing.
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