NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-2395
UNITED STATES OF AMERICA
v.
ANDRE EVANS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-15-cr-00423-001)
District Judge: Honorable Harvey Bartle, III
________________
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2017
Before: AMBRO, VANASKIE, and RESTREPO, Circuit Judges
(Opinion filed: May 2, 2017)
OPINION *
AMBRO, Circuit Judge
Andre Kairi Evans was driving a rented vehicle in Philadelphia with a suspended
driver’s license. After police officers determined that the license plate did not match the
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
make or model of the vehicle, they attempted to stop him. In response, Evans sped away
as the officers chased him. Although Evans ultimately crashed the car, the chase did not
end there: he then fled afoot. During this next phase of the chase, the officers observed
Evans dispose of what appeared to be a handgun. He eventually was apprehended, and
police retrieved the firearm that had been in his possession.
Evans pled guilty to being a convicted felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). Under the Sentencing Guidelines, his recommended range was
140 to 175 months’ imprisonment, but it was adjusted to 120 months because of the
statutorily authorized maximum sentence. After considering the 18 U.S.C. § 3553(a)
factors, the District Court sentenced him to 96 months.
On appeal, Evans raises for the first time that the District Court failed to consider
the § 3553(a) factors as required by 18 U.S.C. § 3584(b) in determining whether the
imposed sentence was to run consecutively or concurrently with an expected state court
sentence for a separate parole violation. And, he argues, if the federal sentence were to
run consecutively to the forthcoming state court sentence, it would be unreasonable and
must be vacated. We disagree.
Because Evans’s specific procedural challenge to his sentence is raised for the first
time on appeal, we review the District Court’s decision for plain error. United States v.
Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014). In doing so, we determine if he has
demonstrated that there was: “(1) an error; (2) that is plain; and (3) that affected
substantial rights.” United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005) (citation
omitted). In such a case, relief may be granted “only if the error seriously affects the
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fairness, integrity, or public reputation of the judicial proceedings.” Id. (quotations and
alterations omitted). Inasmuch as Evans also claims substantive unreasonableness of the
sentence imposed, we review the District Court’s decision for abuse of discretion. See
Gall v. United States, 552 U.S. 38, 51 (2007).
As to Evans’s challenge that the District Court committed procedural error in
failing to decide expressly whether his federal sentence was to run concurrently or
consecutively with a separate state court sentence that, although anticipated, had not yet
been imposed—no error exists. The crux of his argument is that the Court violated 18
U.S.C. § 3584(b), which provides that
[t]he 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).
The consideration of whether concurrent or consecutive sentences is warranted, however,
is subject to § 3584(a), which provides that
[i]f 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 . . . .
Despite Evans’s contention on appeal, the Supreme Court has made this statutory
framework inapplicable to situations where a federal court sentences a defendant who is
awaiting a state court sentence yet to be imposed. Setser v. United States, 566 U.S. 231,
234-35 (2012). Indeed, where “the state sentence is not imposed at the same time as the
federal sentence, and the defendant was not already subject to that state sentence[,]”
§ 3584(a) cannot apply because the defendant is not “already subject to an undischarged
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term of imprisonment” required to trigger the statute. Id. That is the case here, and the
reasoning makes sense: there is no other existing sentence to which the federal sentence
could possibly run concurrently or consecutively. Per the statute and the Supreme
Court’s interpretation of it—particularly in situations as is the one here—the District
Court did not plainly err. 1
Nor was the sentence here substantively unreasonable. Evans insists that if his
federal sentence is to run consecutively with his anticipated state court sentence, which
he predicts will be 16 months, his total sentence will be 112 months rather than the 96-
month sentence imposed by the District Court. Even if that result occurred, there is
nothing unreasonable about it. As an initial matter, the federal sentence imposed by the
District Court is still 96 months regardless what the state court decides to impose for an
entirely separate violation. But even so, the combined sentence is still well below the
initial recommended Guidelines range (140 to 175 months) and the statutory maximum
(120 months). As such, and given that the District Court properly considered all of the
requisite §3553(a) factors, Evans’s sentence is not substantively unreasonable. See Rita
v. United States, 551 U.S. 338, 364-65 (2007).
Accordingly, we affirm.
1
Evans also argues that the District Court committed procedural error by ignoring
§ 5G1.3(d) of the Sentencing Guidelines, which provides that “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.” As discussed, there is no “prior undischarged term
of imprisonment” to which this provision of the Sentencing Guidelines would apply.
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