United States v. Marcus Broadnax

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4670

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARCUS ALLEN BROADNAX,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:12-cr-00019-JAB-1)

Submitted: February 15, 2013 Decided: February 28, 2013

Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Marcus Allen Broadnax pled guilty pursuant to a

written plea agreement to one count of possession with intent to

distribute 129.4 grams of cocaine base, in violation of 21

U.S.C. § 841(a)(1) (2006), and received a sentence of 110

months’ imprisonment, at the bottom of the applicable Guidelines

range. On appeal, Broadnax argues that the district court

unreasonably ran the federal sentence consecutive to his

undischarged state sentence 1 rather than concurrent with it. We

affirm.

We review a sentence for reasonableness under a

deferential abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 51 (2007). A reasonableness review

includes both procedural and substantive components. Id. A

sentence is procedurally reasonable where the district court

committed no significant procedural errors, such as improperly

calculating the Guidelines range, failing to consider the 18

U.S.C. § 3553(a) (2006) factors, or insufficiently explaining

the selected sentence. United States v. Boulware, 604 F.3d 832,

837-38 (4th Cir. 2010). The substantive reasonableness of a

1
At the time Broadnax was sentenced on this federal
offense, he had served only sixteen months on an 88 to 115 month
North Carolina state sentence on convictions for multiple felony
offenses.

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sentence is assessed in light of the totality of the

circumstances. Gall, 552 U.S. at 51. A sentence that falls

within a properly calculated Guidelines range is presumptively

reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.

2007).

Section 5G1.3 of the United States Sentencing

Guidelines guides the district court’s imposition of a sentence

on a defendant who is subject to an undischarged term of

imprisonment. U.S. Sentencing Guidelines Manual, (“USSG”)

§ 5G1.3 (2011). Because Broadnax’s undischarged sentence

pertains to offenses that are not related to the instant federal

offense, subsection (c) of § 5G1.3 applies. 2 United States v.

Becker, 636 F.3d 402, 407-08 (8th Cir. 2011). Under subsection

(c), “the sentence for the instant offense may be imposed to run

concurrently, partially concurrently, or consecutively to the

prior undischarged term of imprisonment to achieve a reasonable

punishment for the instant offense.” USSG § 5G1.3(c), p.s.

Broadnax asserts that the district court abused its

discretion in imposing a consecutive sentence because it did not

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Broadnax asserts that because the federal crime “occurred
during the time he was committing the state offenses” the crimes
constitute a “continuing course of conduct.” This argument is
unavailing. As the Government correctly notes, these crimes
were not used as relevant conduct for the instant offense, they
occurred over a one year period, and had “no common victims, no
common controlled substances, and no geographic similarity.”

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properly consider the § 5G1.3(c) factors—the concerns enumerated

in 18 U.S.C. § 3553(a); the type and length of the prior

undischarged sentence; the time served and likely to be served

on the undischarged sentence; and the fact that the undischarged

sentence may have been imposed in state court rather than

federal court. See USSG § 5G1.3 cmt. n.3(A). We disagree.

Section 5G1.3(c) first directs courts to consider the

§ 3553(a) sentencing factors. See USSG § 5G1.3 cmt. n.3(A).

Here, the district court explicitly noted that the sentence

served the objectives of promoting respect for the law,

punishment, and deterrence. The court also stated that it had

taken into account the specific circumstances of the offense and

the fact that the conduct in the instant case took place within

one year of a state conviction. The court further concluded

that a sentence at the bottom of the Guidelines adequately

served the “objectives of punishment and deterrence in this

case.”

With respect to the remaining § 5G1.3(c) factors, the

record reveals that the court reviewed the presentence report

(“PSR”), which catalogued the type and length of the prior

sentences as well as the underlying offense conduct. See USSG

§ 5G1.3 cmt. n.3(A). Furthermore, the district court considered

the arguments of counsel before determining that a consecutive

sentence was appropriate.

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 Thus, in the “context surrounding [the] district

court’s explanation” of the sentence it imposed on Broadnax, the

court properly assessed the relevant factors under § 5G1.3(c)

and sufficiently explained the sentence it imposed. United

States v. Montes-Pineda, 445 F.3d 375, 380 (4th Cir. 2006).

Accord United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011)

(“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.”).

As this court has emphasized, “[a] district court’s

decision to impose a sentence that runs concurrently with,

partially concurrently with, or consecutively to a prior

undischarged term of imprisonment is constrained only by its

consideration of the factors mentioned in the commentary to

§ 5G1.3(c).” United States v. Mosley, 200 F.3d 218, 223 (4th

Cir. 1999). Because the district court considered those

factors—including the guideposts referenced in § 3553(a)—we

conclude that the district court did not abuse its discretion by

imposing a consecutive sentence in this case.

Accordingly, we affirm the district court’s judgment.

We dispense with oral argument because the facts and legal

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contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED

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