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United States v. Rose

Court: Court of Appeals for the Tenth Circuit
Date filed: 1999-08-03
Citations: 185 F.3d 1108
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                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                         AUG 3 1999
                  UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.
                                                       No. 98-7108
DAN TALMADGE ROSE,

             Defendant-Appellant.




                 Appeal from the United States District Court
                       for the E. District of Oklahoma
                            (D.C. No. CR-91-12-S)


Submitted on the briefs:

Bruce Green, United States Attorney, and D. Michael Littlefield, Assistant U. S.
Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Stephen J. Knorr, Federal Public Defender, and Michael A. Abel, Assistant
Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.


Before TACHA, McKAY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.


                             I. INTRODUCTION
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court

therefore honors the parties’ requests and orders the case submitted without oral

argument.

      This appeal arises from a consolidated action in the district court to revoke,

pursuant to 18 U.S.C. § 3583(e)(3) and (g), Dan T. Rose’s concurrent terms of

supervised release. After a hearing on the matter, the district court concluded that

Rose had violated the conditions imposed on each term of supervised release.

Accordingly, the district court revoked both terms of supervised release,

sentenced Rose to a term of imprisonment of twenty-four months in each case,

and ordered that the terms of imprisonment be served consecutively.

      Rose appeals, contending that the district court failed to consider on the

record the statutorily mandated factors set out in 18 U.S.C. § 3553(a) when it

imposed consecutive, rather than concurrent terms of imprisonment. See 18

U.S.C. § 3584(b) (“The court, in determining whether the terms imposed are to be

ordered to run concurrently or consecutively, shall consider, as to each offense for

which a term of imprisonment is being imposed, the factors set forth in section

3553(a).”). Rose further contends that the district court failed to state in open

court the reason for imposing consecutive sentences as required by 18 U.S.C. §


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3553(c). Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291, this court vacates and remands to the district court to state on the record

pursuant to § 3553(c) its reasons for imposing consecutive sentences.



                                II. BACKGROUND

      In 1991, Rose pleaded guilty in the Eastern District of Oklahoma to a single

count of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952

(the “Oklahoma Case”). The district court sentenced Rose to a sixty-month term

of incarceration to be followed by three years of supervised release. The next

year, Rose pleaded guilty in the Western District of North Carolina to a single

count of conspiracy to possess with the intent to distribute marijuana (the “North

Carolina Case”). The district court sentenced Rose to a thirty-three-month term

of incarceration and ordered the sentence to be served concurrently with the

sentence imposed in the Oklahoma Case. In addition, the district court ordered

Rose to serve a five-year term of supervised release.

      Upon his release from prison, Rose’s remaining term of supervised release

arising out of the North Carolina Case was transferred to the United States

Probation Office (“USPO”) for the Eastern District of Oklahoma. While

supervising Rose, the USPO filed a Petition for Summons for Offender Under

Supervision (the “Petition”) in both cases. The Petition alleged that Rose had


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violated the provisions of his terms of his supervised release and requested that

the district court revoke Rose’s supervised release. All hearings on these matters

in both cases were consolidated and addressed simultaneously.

      In his initial appearance, Rose acknowledged receipt of the Petition and

waived a preliminary hearing. Pursuant to this waiver, Rose was bound over to

answer the allegations before the district court. At his hearing on revocation,

Rose entered a stipulation admitting each of the violations alleged in the Petition.

Upon accepting the stipulation, the district court revoked both terms of supervised

release, sentenced Rose to a term of imprisonment of twenty-four months in each

case, and ordered that the terms of imprisonment be served consecutively.



                                  III. ANALYSIS

      Rose asserts that the district court failed to comply with 18 U.S.C. § 3584

in ordering his terms of incarceration to run consecutively. Section 3584 grants

district courts discretion in choosing between consecutive and concurrent terms of

imprisonment. See 18 U.S.C. 3584(a) (“If multiple terms of imprisonment are

imposed on a defendant at the same time . . . , the terms may run concurrently or

consecutively . . . .”). Nevertheless, in exercising that sentencing discretion, a

district court must consider the factors set forth in 18 U.S.C. § 3553(a). See id. §

3584(b). Those factors include: (1) the nature and circumstances of the offense;


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(2) the history and characteristics of the defendant; (3) the need for the sentence

imposed to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, afford adequate deterrence, protect the public, and

provide the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most efficient manner; (4) the kinds of

sentences available pursuant to the Sentencing Guidelines; (5) pertinent policy

statements issued by the Sentencing Commission; (6) the need to avoid unwanted

sentence disparities; and (7) the need to provide restitution. See id. § 3553(a).

      Rose contends the district court failed to comply with § 3584(b) because it

failed to weigh on the record each of the statutorily mandated factors in

determining that Rose’s sentences should run consecutively. In circumstances

indistinguishable from those at issue here, the Fourth Circuit recently rejected an

argument identical to the one advanced by Rose. See United States v. Johnson,

138 F.3d 115, 119-20 (4 th Cir. 1998). The Johnson court began by noting that

although “[s]tatutory changes and the sentencing guidelines have dramatically

altered the sentencing landscape[,] Congress never intended . . . for sentencing to

become a hyper-technical exercise devoid of common sense.” Id. at 119; see also

United States v. Davis, 53 F.3d 638, 642 (4 th Cir. 1995) (holding that a sentencing

court need not engage in a “ritualistic incantation in order to establish its

consideration of a legal issue”). Absent any contrary indication in the record, the


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Fourth Circuit concluded it was appropriate to presume “that a district court

properly considered the pertinent statutory factors.” Johnson, 138 F.3d at 119;

see also United States v. Caves, 73 F.3d 823, 825 (8 th Cir. 1996) (rejecting

contention that district court must recite mandatory sentencing factors before

revoking term of supervised release); United States v. Cervantes-Valenzuela, 931

F.2d 27, 29 (9 th Cir. 1991) (“We assume that the district court knows and applies

the law correctly, and therefore considers the factors in 18 U.S.C. § 3553(a).”).

      We agree with and adopt the approach in Johnson. Accordingly, absent a

contrary indication in the record, this court will assume that a district court

weighed each of the sentencing factors set forth in § 3553(a) in exercising its

discretion pursuant to § 3584, even where the district court does not explicitly so

state at the sentencing hearing or in its order.

      This approach is consistent with general Tenth Circuit precedent. In a case

involving the calculation of a term of imprisonment following a revocation of

supervised release, which calculation also requires a sentencing court to consider

the factors set out in § 3553(a), this court held as follows:

            We have previously held that the sentencing court is not
      required to consider individually each of the factors listed in 18
      U.S.C. § 3553(a) before issuing a sentence. A sentencing court need
      only give the reasons for its action as required by 18 U.S.C.
      § 3553(c). Thus, when imposing a sentence, a district court need
      only consider 18 U.S.C. § 3553(a) en masse and state its reasons for
      imposing a given sentence.


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United States v. Burdex, 100 F.3d 882, 886 (10 th Cir. 1996) (citation omitted).

This court can discern no reason for a different result in the case at hand.

Accordingly, we hold that the district court is not obligated to expressly weigh on

the record each of the factors set out in § 3553(a) before deciding, pursuant to §

3584, whether to run separate terms of imprisonment consecutively or

concurrently.

      This conclusion, however, does not end this court’s analysis. Section

3553(c) provides as follows:

      (c) Statement of reasons for imposing a sentence. -- The court, at
      the time of sentencing, shall state in open court the reasons for its
      imposition of the particular sentence, and, if the sentence --
             (1) is of the kind, and within the range, described in
             subsection (a)(4) and that range exceeds 24 months, the
             reason for imposing a sentence at a particular point
             within the range; or
             (2) is not of the kind, or is outside the range, described
             in subsection (a)(4), the specific reason for the
             imposition of a sentence different from that described.

18 U.S.C. § 3553(c). Rose contends that even if the district court need not weigh

the § 3553(a) factors on the record, it must still state in open court, pursuant to

§ 3553(c), the reasons for imposing consecutive terms of imprisonment.

      While conceding that the district court did not state its reasons for imposing

consecutive terms, the United States asserts that § 3553(c) is not applicable in

cases in which the sentence does not exceed twenty-four months. In so arguing,

the United States misreads § 3553(c).

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      Section 3553(c) imposes a general burden on a sentencing court to “state in

open court the reasons for its imposition of the particular sentence.” 18 U.S.C. §

3553(c). Subsections (1) and (2) to section 3553(c) impose further specific

burdens on a sentencing court where the sentencing-guidelines range exceeds

twenty-four months or the district court chooses to impose a sentence outside the

sentencing-guidelines range. See id. § 3553(c)(1) (district court must state on

record reason for imposing sentence at particular point in sentencing range where

that range exceeds twenty-four months); id § 3553(c)(2) (district court must state

on record reason for departing from sentencing guidelines). Despite the United

States’ assertion to the contrary, this court has concluded that the general

requirement set out in § 3553(c) extends to all cases and is not limited by the

conditions to applicability of subsections (1) & (2). See United States v.

Underwood, 938 F.2d 1086, 1091-92 (10 th Cir. 1991) (“We agree with the courts

that have held that § 3553 subsection (c), without regard to subsections (c)(1) and

(c)(2), requires a district court to make a general statement of its reasoning for the

sentence imposed. Otherwise, we would be left in a zone of speculation on

appellate review.” (quotation omitted)); see also United States v. Lockard, 910

F.2d 542, 546 (9 th Cir. 1990) (cited with approval in Underwood) (“We hold that

18 U.S.C. § 3553(c) requires the district court to state, in open court, its general

reasons for its imposition of the particular sentence, notwithstanding the absence


                                          -8-
of the conditions described in subsections (1) and (2).”). Any other interpretation

of § 3553(c) would read a key word out of the statute. 1 Accordingly, this court

rejects the United States’ contention that § 3553(c) is not applicable to this case

because neither of Rose’s sentences exceeded twenty-four months. 2


       The Ninth Circuit has noted as follows in this regard:
        1

             We next consider whether the prefatory language of section
      3553(c) nonetheless imposes some general requirement upon the
      district court [even where neither subsection (1) nor (2) of section
      3553(c) is applicable]. The language reads: “The court, at the time
      of sentencing, shall state in open court the reasons for its imposition
      of the particular sentence, and, if the sentence . . . .” 18 U.S.C. §
      3553(c) (emphasis added). If the emphasized “and” were not in the
      statute, plainly no statement of reasons would be necessary absent
      either condition set forth in subsections (1) or (2). However, the
      “and” exists and must be given meaning: some statement of reasons
      is required, even if the more specific and detailed reasons of
      subsections (1) and (2) are not. We will not read the “and” out of the
      statute: We avoid any statutory interpretation that renders any section
      superfluous and does not give effect to all of the words used by
      Congress.
United States v. Lockard, 910 F.2d 542, 545 (9 th Cir. 1990) (quotation omitted).

        The United States’ reliance on United States v. Garcia, 919 F.2d 1478
        2

(10 Cir. 1990), is misplaced. In Garcia, this court held that it did not have
   th

jurisdiction to review a claim that the district court had erred in sentencing a
defendant at a particular point within an otherwise proper sentencing guideline
range. 919 F.2d at 1479. In so holding, the Garcia court noted that because the
defendant’s sentencing range was from one to seven months, the district court was
not required to state its reasons for sentencing the defendant at a particular
point within that range. See id. at 1482 (“Section 3553(c) explicitly
contemplates that the district court need not state its reasons for imposing
sentence at a particular point unless the applicable range exceeds twenty-four
months.”); 18 U.S.C. § 3553(c)(1) (providing that if a sentence imposed “is of the
kind, and within the range, described in subsection (a)(4) and that range exceeds
24 months,” the sentencing court must state on the record “the reason for
imposing a sentence at a particular point within the range”). As noted above,

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      Upon review of the transcript of the sentencing hearing, this court agrees

with the parties that the district court failed to state on the record its reason for

imposing consecutive sentences. Although the nature and severity of Rose’s

violations of the terms of his supervised release would certainly support the

imposition of consecutive terms, without any statement at all in the record of the

district court’s reasoning, this court is left in the “zone of [appellate]

speculation.” Underwood, 938 F.2d at 1091-92. As a consequence, this court is

unable to determine whether the district court’s decision to impose consecutive

terms constituted an abuse of discretion. See United States v. Williams, 46 F.3d

57, 58 (10 th Cir. 1995) (holding that district court’s decision to impose a

consecutive or concurrent sentence under § 3584(a) is reviewed for abuse of

discretion). Accordingly, we VACATE the imposition of consecutive sentences

and REMAND to the district court to resentence Rose consistent with the

mandate of § 3553(c) as set forth above. 3 In so doing, we reiterate that the


however, § 3553(c) extends to all cases and is not limited by the conditions to
applicability of subsections (1) & (2). Accordingly, the limitation on the
applicability of § 3553(c)(1) to cases involving sentencing ranges exceeding
twenty-four months discussed in Garcia is not relevant to the general obligation,
contained in § 3553(c), of the district court to state on the record its reasons for
imposing a particular sentence.
      3
        Rose asserts, without any citation to authority, that the district court’s
failure to comply with § 3553(c) renders its sentence invalid and entitles him to
concurrent terms as a matter of law. This ipse dixit assertion is contrary to our
precedent. As noted by the United States, the appropriate relief when a district
court fails to comply with § 3553(c) is to remand the case to the district court for

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district court need not expressly weigh each of the § 3553(a) factors on the

record. Instead, the district court need only “consider 18 U.S.C. § 3553(a) en

masse and state its reasons for imposing a given sentence.” Burdex, 100 F.3d at

886; see also Underwood, 938 F.2d at 1092 (holding that a district court

statement of reasoning pursuant to § 3553(c) “does not have to be

particularized”).




resentencing. See United States v. Underwood, 938 F.2d 1086, 1092 (10 th Cir.
1991).

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