United States v. Lymon , 905 F.3d 1149 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 2, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2077
DAVON LYMON,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:15-CR-04302-MCA-1)
_________________________________
Marc Robert, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant-Appellant.
C. Paige Messec, Assistant United States Attorney (James D. Tierney, Acting United
States Attorney and James R.W. Braun, Assistant United States Attorney, on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before MATHESON, McKAY, and EBEL, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Defendant Davon Lymon challenges the procedure by which the district court
decided to order the three federal sentences imposed in this case to be consecutive.
In particular, although U.S.S.G. § 5G1.2 indicated Lymon’s sentences should run
concurrently, the district court instead imposed them consecutively, citing 18 U.S.C.
§ 3584. The court did not procedurally err because the sentencing guidelines are
only advisory, the district court considered the guidelines’ recommendation before
exercising its discretion under § 3584 to order consecutive sentences, and the court
adequately explained why it did so. Having jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we, therefore, AFFIRM.
I. BACKGROUND
Lymon pled guilty to three offenses charged in the same indictment: selling
heroin to an undercover officer on two separate occasions (Counts 1 and 3), and
being a previously convicted felon in possession of a gun (Count 2). Using the
sentencing guidelines’ grouping rules, see U.S.S.G. Ch.3, Pt. D, the district court
established a single combined offense level for all three convictions. That offense
level led to an advisory sentencing range of 77 to 96 months in prison. Lymon does
not object to that starting guideline range, but he does object to the court’s ultimate
decision to vary upward from the range to a total sentence of 216 months as a result
of running the sentences on each of the three counts of conviction largely
consecutively instead of concurrently as called for in the guidelines.
The district court imposed a sentence at the top of that range, ninety-six-
months, for each of Lymon’s three convictions, see U.S.S.G. § 5G1.2(b), and ordered
the sentences for Counts 1 and 2 and part of the sentence for Count 3 to run
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consecutively, for a total prison sentence of 216 months. In doing so, the district
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court cited and relied on the statutory provision of 18 U.S.C. § 3584(b).
II. STANDARD OF REVIEW
Lymon is challenging the procedural reasonableness of his sentence on
grounds that he concedes he did not raise in the district court. Our review, then, is
for plain error. See United States v. Wireman, 849 F.3d 956, 961-62 (10th Cir.
2017). “We will find plain error only when there is (1) error, (2) that is plain, which
(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 962 (internal quotation marks
omitted). It is Lymon’s burden to make this showing. See United States v. Francis,
891 F.3d 888, 899 (10th Cir. 2018).
III. DISCUSSION
Lymon’s appellate arguments fall into three general categories. Our
consideration of these arguments begins and ends with the first plain-error inquiry
because we conclude Lymon failed to establish any procedural error.
A. The district court had discretion under 18 U.S.C. § 3584 to impose
consecutive sentences notwithstanding U.S.S.G. § 5G1.2’s recommendation that
the sentences run concurrently
We reject Lymon’s first argument, that U.S.S.G. § 5G1.2 “required” the
district court to run his sentences concurrently (Aplt. Br. 14, 16). “Although the
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The district court further ordered that the 216-month total sentence imposed in this
case run consecutively to a 240-month sentence imposed in another federal
prosecution of Lymon in the District of New Mexico, No. 1:15-cr-004082. Lymon
does not challenge that decision in this appeal.
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court must consider the guidelines when fashioning an appropriate sentence, the
guidelines do not control whether sentences run concurrently or consecutively.”
United States v. Jarvis, 606 F.3d 552, 554 (8th Cir. 2010) (citation omitted).
Notwithstanding the guidelines’ recommendation that Lymon’s sentences run
concurrently, then, the district court still had discretion under 18 U.S.C. § 3584 to
impose consecutive sentences instead.
“Judges have long been understood to have discretion to select whether the
sentences they impose will run concurrently or consecutively with respect to other
sentences that they impose . . . .” Setser v. United States, 566 U.S. 231, 236 (2012).
18 U.S.C. § 3584(a) specifically provides that “[i]f multiple terms of imprisonment
are imposed on a defendant at the same time . . . , the terms may run concurrently or
consecutively . . . .” (Emphasis added.) Section 3584(b) goes on to state 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 [18 U.S.C.] section 3553(a).”
On the other hand, it is uncontested that in this case the sentencing
guidelines—specifically U.S.S.G. § 5G1.2—provide that Lymon’s sentences should
run concurrently. It does so using mandatory language: “the sentences on all counts
shall run concurrently . . . .” U.S.S.G. § 5G1.2(c), (d) (emphasis added). Before
Booker v. United States, 543 U.S. 220 (2005), we held that U.S.S.G. § 5G1.2’s
direction as to when multiple sentences run concurrently or consecutively was
mandatory, like the guidelines as a whole. See United States v. Price, 265 F.3d 1097,
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1109 (10th Cir. 2001). But the Supreme Court, in Booker, made the sentencing
guidelines advisory rather than mandatory. See Pepper v. United States, 562 U.S.
476, 490 (2011). That includes U.S.S.G. § 5G1.2. See United States v. Hollis, 552
F.3d 1191, 1195 (10th Cir. 2009) (stating that § 5G1.2(d), setting forth when
sentences should run consecutively, is no longer mandatory after Booker).
Furthermore, the Supreme Court’s “post-Booker opinions make clear that,
although a sentencing court must give respectful consideration to the Guidelines,
Booker permits the court to tailor the sentence in light of other statutory concerns as
well.” Pepper, 562 U.S. at 490 (internal quotation marks omitted). 18 U.S.C.
§ 3584, along with the § 3553(a) factors it implicates, present such relevant statutory
concerns. See United States v. Rutherford, 599 F.3d 817, 821 (8th Cir. 2010).
The district court, therefore, had discretion here to “deviate under 18 U.S.C.
§ 3584” from the guidelines’ recommendation that Lymon’s sentences run
concurrently and to impose, instead, consecutive sentences after considering the
§ 3553(a) factors. United States v. Looper, 399 F. App’x 368, 374 (10th Cir. 2010)
(unpublished); see also United States v. Redmond, 388 F. App’x 849, 854 (10th Cir.
2010) (unpublished) (citing Jarvis, 606 F.3d at 553-54 (8th Cir.)).2 3
2
Although unpublished, we find the reasoning in these cases persuasive.
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United States v. Kieffer, 681 F.3d 1143 (10th Cir. 2012), on which Lymon relies, is
inapposite on this point. Kieffer considered a different guideline provision, U.S.S.G.
§ 5G1.3, which addresses whether a sentence should run consecutively or
concurrently to another, undischarged sentence the defendant must serve or an
anticipated state sentence he might have to serve. 681 F.3d at 1166-68. Kieffer held
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Other circuits have reached similar conclusions. See United States v. Conlan,
786 F.3d 380, 394 & n.46 (5th Cir. 2015); Jarvis, 606 F.3d at 554 (8th Cir.) (citing
our Hollis decision, as well as United States v. Eversole, 487 F.3d 1024, 1033 (6th
Cir. 2007), and United States v. Kurti, 427 F.3d 159, 164 (2d Cir. 2005)); see also
United States v. Richart, 662 F.3d 1037, 1050 (8th Cir. 2011) (stating that “the now-
advisory Guidelines cannot mandate . . . concurrent sentencing” and “§ 5G1.2 does
not describe the only time a court may impose consecutive sentences” (internal
quotation marks omitted)).
We conclude, then, that the district court had discretion in this case under 18
U.S.C. § 3584 to run Lymon’s sentences consecutively, notwithstanding U.S.S.G.
§ 5G1.2’s recommendation of concurrent sentences.
B. The district court was aware that the guidelines recommended concurrent
sentences and the court considered that recommendation
As just mentioned, § 3584(b) provides that the sentencing court, in deciding
whether multiple sentences should run concurrently or consecutively, “shall consider
. . . the factors set forth in [18 U.S.C.] section 3553(a).” One of those factors is the
guidelines’ advisory sentence. See 18 U.S.C. § 3553(a)(4). Moreover, the advisory
guidelines remain “the starting point and the initial benchmark” for determining a
reasonable sentence. Pepper, 562 U.S. at 490 (quoting Gall v. United States, 552
that, while “[g]enerally[] a district court has broad discretion under § 5G1.3(c) in
crafting a concurrent or consecutive sentence,” other sections of that guideline
provision, § 5G1.3(a) and (b), “restrict” the court’s discretion. Kieffer, 681 F.3d at
1167. Kieffer did not address at all the court’s discretion under 18 U.S.C. § 3584(a).
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U.S. 38, 49-51 (2007)); see also Rutherford, 599 F.3d at 821 (holding “sentencing
court should consider the Guidelines calculation as a first step to finding a reasonable
sentence,” before considering under 18 U.S.C. § 3584 whether sentences should run
concurrently or consecutively). It would be procedural error not to consider the
advisory guidelines’ sentencing recommendation. See, e.g., Gall, 552 U.S. at 51.
With that in mind, Lymon next asserts that the district court erred here in
failing to consider that the sentencing guidelines recommended in this case that
Lymon’s sentences run concurrently. Lymon contends that the district court never
identified the 77-96-month range as the “total punishment” the guidelines provided
here, nor did the district court realize that the guidelines recommended concurrent
sentences to impose the “total punishment.” In support of these contentions, Lymon
points out that neither the presentence report (“PSR”) nor the district court ever
mentioned “total punishment” or U.S.S.G. § 5G1.2, and the PSR did not address
whether Lymon’s sentences should run concurrently or consecutively. Lymon further
contends that the district court never acknowledged that, in this case, consecutive
sentences represented an upward variance from the guidelines’ recommended
concurrent sentences. See Conlan, 786 F.3d at 394 & n.46 (5th Cir.) (stating that
“[c]onsecutive sentences can be used to achieve an above-guidelines sentence,” in
case where court imposed consecutive sentences under its 18 U.S.C. § 3584(a),
despite the guideline recommendation of concurrent sentences); see also Jarvis, 606
F.3d at 554.
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After reviewing the record, however, we are confident that the district court
realized that the sentencing guidelines recommended Lymon’s sentences run
concurrently and that the court considered that recommendation even as the court
imposed consecutive sentences. Most clearly, Lymon told the court at sentencing
that the guideline range was 77 to 96 months in prison and he argued for a “guideline
sentence” of six to eight years, clearly contemplating concurrent sentences. (III R.
46, 75.) The Government also acknowledged the eight-year guideline sentence.
In addition, the parties addressed U.S.S.G. § 5G1.2 generally in their written
sentencing memoranda and during the two sentencing proceedings that the district
court conducted in this case. In particular, the parties discussed both the possibility
of imposing the sentences in this case consecutively to the sentences imposed in a
separate federal prosecution and the possibility that the sentences imposed in this
federal case would run consecutively to any sentence imposed in a pending state
prosecution. Within these discussions, the parties addressed, not only U.S.S.G.
§ 5G1.2, but also the sentencing court’s discretion to impose consecutive sentences
under 18 U.S.C. § 3584, as well as the court’s inherent authority to do so. While
those discussions involved different consecutive/concurrent sentencing decisions,
§ 5G1.2, as well as the possibility of consecutive sentences in a variety of forms, was
front and center throughout both sentencing proceedings conducted in this case.
In fact, the district court conducted the sentencing in the separate federal
prosecution on the same day as the first of the two sentencing hearings in this case.
In that separate federal case, the district court imposed two consecutive 120-month
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sentences. According to Lymon, the court “employed” U.S.S.G. § 5G1.2 “in
determining th[at] sentence.” (I R. 68.) So the district court was certainly aware of
§ 5G1.2 when the court sentenced Lymon in this case to consecutive sentences.
The parties also informed the district court that imposing consecutive
sentences amounted to a variance above the recommended guideline range. During
the first of two sentencing hearings in this case, Lymon requested a guideline
sentence, asked that, if the court was considering varying upward, he be given notice
and an opportunity to respond in writing. The Government responded that it intended
to request a substantial upward variance to fifty years in prison, based in part on
running the sentences consecutively under 18 U.S.C. §§ 3584 and 3553(a). The
sentencing court then adjourned the sentencing proceeding in order to give Lymon
the opportunity he requested to address the possibility of an upward variance in
writing.4 During the second sentencing hearing, the Government acknowledged a
guideline sentence of eight years before again asking for an upward variance. From
these discussions, the court realized that running Lymon’s sentences consecutively
would amount to a variance from the recommended guideline sentence.
4
While the sentencing court must give a defendant advance notice that the court is
considering a departure from the advisory guideline sentence, see Fed. R. Crim. P.
32(h), the court is not obligated to give advance notice that it is considering a
variance based on the 18 U.S.C. § 3553(a) factors, see Irizarry v. United States, 553
U.S. 708, 709-10, 712-13, 715-16 (2008). Here, in any event, after the Government
requested a “substantial” upward variance, Lymon was on notice and had a sufficient
opportunity to address the possibility of a variance.
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The district court also realized, from the parties’ arguments, that it had
discretion under 18 U.S.C. § 3584, to vary upward from the guidelines’
recommended concurrent sentences, after considering the 18 U.S.C. § 3553(a)
factors. In imposing consecutive sentences, the district court cited 18 U.S.C.
§ 3584(b) and imposed consecutive sentences only after a thorough discussion of the
18 U.S.C. § 3553(a) factors, as § 3584(b) requires. The district court specifically
stated that the § 3553(a) factors “warrant a consecutive and partially consecutive
sentence to be imposed in this case.” (III R. 82.)
After reading the entire sentencing record, we conclude the district court
recognized that the guidelines called for concurrent sentences and considered that
recommendation before deciding to vary upward to impose consecutive sentences.
Our conclusion is bolstered by the fact that, “absent some indication in the record
suggesting otherwise, that trial judges are presumed to know the law and apply it in
making their decisions.” United States v. Chavez-Meza, 854 F.3d 655, 659 (10th Cir.
2017), aff’d, 138 S. Ct. 1959 (2018).
Even if the district court plainly erred in not explicitly stating that the
guidelines recommended concurrent sentences and that the court explicitly
considered that recommendation before varying upward to impose consecutive
sentences—and we do not hold there was such error here—Lymon has failed to meet
his burden at the third plain-error inquiry to show that his substantial rights were
prejudiced by any such error, see Francis, 891 F.3d at 899; see also United States v.
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Chavez-Morales, 894 F.3d 1206, 1216-18 (10th Cir. 2018), as explained in the
section that follows.
C. The district court adequately explained why it imposed consecutive sentences
Lastly, Lymon contends that, in varying upward, the district court did not
adequately explain why it chose to impose his three sentences consecutively. To the
contrary, the district court invoked the § 3553(a) factors to explain in great detail
why it deemed consecutive sentences to be appropriate here.
Summarizing, the court noted that Lymon had a serious and ongoing criminal
history involving violence and repeated unlawful possession of firearms, including
previous convictions for voluntary manslaughter and aggravated robbery; his
criminal activity continued even after he served over eleven years in prison; after his
release, Lymon’s criminal activity included beating a victim unconscious, displaying
a firearm, and possessing a loaded magazine for a firearm; and just before sentencing
in this case, the court sentenced Lymon to twenty years in prison for unlawfully
possessing another firearm. The court further expressly considered that Lymon
continued to use and distribute dangerous and addictive controlled substances, and he
suffered from untreated mental illnesses, “making him a danger not only to himself
but to others.” (III R. 84.) Based on all the information before it, the court
concluded that “Lymon is a repeat and dangerous offender who poses a serious
danger to the community and has no respect for the law.” (Id.) The court, thus,
thoroughly explained why it chose to impose Lymon’s three sentences at issue here
consecutively.
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IV. CONCLUSION
Because the district court did not err in the manner in which it decided to run
Lymon’s sentences consecutively, we AFFIRM.
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