United States v. Rocky Brummett , 402 F. App'x 126 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0736n.06
No. 09-5448 FILED
Nov 23, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
ROCKY BRUMMETT, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. ) OPINION
)
BEFORE: KENNEDY, COLE and ROGERS, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Rocky Brummett appeals one aspect of his
240-month sentence under 21 U.S.C. §§ 841, 846 and 851 for conspiracy to manufacture
methamphetamine: the district court’s decision to deny Brummett’s U.S. Sentencing Guidelines
Manual (“Guidelines” or “U.S.S.G.”) § 5G1.3(c) motion to impose his federal sentence partially
concurrently with his undischarged state sentence. Brummett argues specifically that the district
court did not address the factors in the commentary to § 5G1.3(c) in concluding that his federal
sentence should run consecutively to his state sentence. For the reasons below, we AFFIRM
Brummett’s sentence.
I.
From June 17, 2005 until January 11, 2007, Brummett was involved in a conspiracy to
manufacture at least fifty grams of methamphetamine. On September 14, 2006, Brummett
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committed the state offense of promoting contraband in the first degree when he brought marijuana
into the Laurel County Detention Center while serving time there for an unrelated offense. On
January 11, 2007, Brummett committed the state offense of receiving stolen property of the value
of $300 or more when he received a stolen all-terrain vehicle (“ATV”) in exchange for
methamphetamine. On February 14, 2007, a jury convicted Brummett of the promoting-contraband
offense, and he received a sentencing enhancement for being a persistent felony offender in the
second degree (based on a 2002 conviction for possession of contraband). Brummett was sentenced
in state court to ten years in prison for this offense and enhancement, with a minimum term
expiration date of April 17, 2014. Meanwhile, Brummett was sentenced to five years in prison for
the receiving-stolen-property offense, to run concurrently with his promoting-contraband offense.
Here, Brummett pleaded guilty to conspiring to manufacture methamphetamine in the U.S.
District Court for the Eastern District of Kentucky. Prior to Brummett’s plea, the government filed
a notice that it would seek to increase Brummett’s minimum period of incarceration to no less than
twenty years because he possessed “a prior conviction for a felony drug offense.” 21 U.S.C.
§ 841(b)(1)(A)(vii). The prior felony drug conviction was in 2002 for first-degree possession of a
controlled substance.
On March 27, 2009, Brummett moved under U.S.S.G. § 5G1.3(c) to request that his federal
sentence run partially concurrently with his state sentence, for which he was incarcerated until at
least April 17, 2014. At Brummett’s federal sentencing on April 7, 2009, the district court heard
argument on the § 5G1.3(c) motion and decided to impose a 240-month mandatory-minimum
sentence consecutively to Brummett’s state sentence. Brummett timely appealed.
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II.
Both parties agree that § 5G1.3(c) applies. Section 5G1.3(c) of the Guidelines provides: “In
any other case involving an undischarged term of imprisonment, 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.” Id.
(2008). The commentary to the section explains further:
In order to achieve a reasonable incremental punishment for the instant offense and
avoid unwarranted disparity, the court should consider the following:
(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C.
§ 3553(a));
(ii) the type (e.g., determinate, indeterminate/parolable) and length of
the prior undischarged sentence;
(iii) the time served on the undischarged sentence and the time likely
to be served before release;
(iv) the fact that the prior undischarged sentence may have been
imposed in state court rather than federal court, or at a different time
before the same or different federal court; and
(v) any other circumstance relevant to the determination of an
appropriate sentence for the instant offense.
U.S.S.G. § 5G1.3(c) cmt. n.3(A) (2008).
We review a district court’s determination that sentences should run consecutively or
concurrently under § 5G1.3(c) for abuse of discretion. United States v. Berry, 565 F.3d 332, 342
(6th Cir. 2009). When a district court imposes consecutive sentences, it does not abuse its discretion
so long as it “‘makes generally clear the rationale under which it has imposed the consecutive
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sentence and seeks to ensure an appropriate incremental penalty for the instant offense.’” Id.
(quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998)). However, the district court
does not enjoy “unfettered discretion[, and] the record on appeal should show that the district court
turned its attention to § 5G1.3(c) and the relevant commentary in [making] its determination.”
United States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997).
Brummett argues the district court did not address the factors listed in the commentary to
§ 5G1.3(c). He characterizes the district court’s consideration as solely focused “on . . . whether
Brummett’s receiving stolen property over $300.00 sentence was sufficiently related to his
conviction for manufacturing methamphetamine[,] which was the subject of his federal sentencing.”
(Brummett Br. 16.) Brummett acknowledges that the district court generally considered the 18
U.S.C. § 3553(a) factors, as subsection (i) of the commentary to § 5G1.3(c) requires, but claims it
did not do so “in addressing whether Brummett’s [federal] sentence should run concurrently with
his undischarged state sentence.” (Id. at 17.) The government responds that the district court
adequately addressed these factors in reaching its § 5G1.3(c) decision and in imposing Brummett’s
sentence.
In Berry, we found a district court’s § 5G1.3(c) discussion adequate where the district court
identified that Guidelines provision, “recognized the Section 3553(a) factors and discussed Berry’s
age, the pattern of crime over his lifetime, his prior convictions and concluded that it ‘did not find
a rationale for departing from those guidelines or for a variance.’” 565 F.3d at 342-43 (quoting the
record). Analyzing the district court’s language, we found the statement, “[t]hough brief,” to be
“sufficient to demonstrate the imposition of the consecutive sentence was reasonable” when viewed
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“in conjunction with the [district] court’s invocation of Section 3553(a),” as well as his criminal
history. Id. at 343. We explained: “We have never held that a district court is required to repeat a
Section 3553(a) analysis in its consideration of the consecutive or concurrent nature of a sentence
when the same reasons for rejecting a downward variance also support the decision for a consecutive
sentence.” Id. We then held: “Requiring district courts to conduct a separate Section 3553(a)
analysis for the concurrent or consecutive nature of the sentence would be repetitious and
unwarranted, and we hold that district courts have no such distinct obligation.” Id.
Similarly, in United States v. Watford, the district court stated that it “considered the
guideline guidance in 5G1.3(c) and the factors set forth in the commentary, as well as 3584 of Title
18 and 3553(c)-3553(a),” but grounded its decision to impose the federal sentence consecutively
largely on the fact that “[t]he conduct in this case has absolutely nothing to do with anything that
happened in [connection to the state conviction] . . . , [and thus] the conduct in this case stands apart
and is separable factually, temporally and in any other fashion.” 468 F.3d 891, 916 (6th Cir. 2006)
(quoting the record). Reviewing that determination, we held that the district court’s explanation,
“while somewhat cursory,” was not an abuse of discretion, because “it is clear that the District Court
considered the recommendations of the Guidelines and the pertinent policy statement.” Id. at 917;
see also United States v. Harmon, 607 F.3d 233, 239-40 (6th Cir. 2010) (finding no plain error where
the district court did not mention § 5G1.3(c) but was “aware of the length and parolability of [the
defendant]’s undischarged state sentence,” discussed concern regarding knowing precisely how long
the defendant would be incarcerated on his state conviction, and stated that § 3553(a) factors drove
its sentence pronouncement, including, “in part, . . . its prior denial of [the defendant’s] request for
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a concurrent sentence”); United States v. Campbell, 309 F.3d 928, 931 (6th Cir. 2002) (finding no
abuse of discretion where “[t]he record . . . shows that the district court imposed a consecutive
sentence because it was reasonable in light of the factors listed § 3553(a),” and where the district
court concluded that “‘a sentence at the low end of the range would not satisfy most of the
sentencing objectives set out in § 3553(a)’” (quoting the record)); Covert, 117 F.3d at 946 (“In this
instance we do not believe the district court abused its discretion even though it did not, on the
record, perform the specific calculations suggested by the guidelines. The totality of the record
makes clear that the district court properly turned its attention to § 5G1.3(c) and the relevant
commentary before imposing a consecutive sentence.”).
Here, the record reveals that the district court received detailed argument on the § 5G1.3(c)
issue from both parties, before turning to the issue itself and holding that Brummett’s federal
sentence should run consecutively to his undischarged state sentence. Defense counsel argued that
a concurrent sentence was appropriate because “Brummett’s receipt of the stolen ATV was related
to the underlying charge of conspiracy to manufacture methamphetamine.” (Brummett’s Supp.
Sentencing Mem. on § 5G1.3(c), Dist. Ct. Docket No. 179, at 2.) At sentencing, defense counsel
continued to point to the relationship between the receiving-stolen-property offense and the
methamphetamine conspiracy as grounds for imposing a partially concurrent federal sentence to
Brummett’s state sentence. The government responded that, while the receiving-stolen-property
offense broadly related to the methamphetamine conspiracy, the former conviction punished
something entirely separate. The government also emphasized that “[t]he 2001 conviction, which
. . . form[ed] the basis for his [21 U.S.C. §] 851 enhancement, was well before the time period of this
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conspiracy, [and] was not encompassed by this conspiracy.” (Sentencing Hr’g Tr., Dist. Ct. Docket
No. 206, at 24.)
Subsequently, the district court discussed the 18 U.S.C. § 3553(a) factors, including the need
to protect the public and provide deterrence, Brummett’s drug addiction issues, and his need for
vocational training. The court then considered “whether this sentence should be concurrent or
partially concurrent under 5G1.3,” (id. at 29-30):
And I certainly understand the arguments that have been raised as to the various state
terms that have been imposed, and I do understand the argument that the charge
reflected in paragraph 96 [the possession-of-contraband conviction], I believe it was,
would be the charge that would be used as an enhancement under 851, but that is too
tenuous for the Court to use that as a reason to impose a partially concurrent
sentence. I do understand that the Court can consider all information in the case in
determining whether a concurrent or partially concurrent sentence would be
appropriate, but under the circumstances of this particular case and for the reasons
that I explained during my questions and my discussion with counsel, I don’t believe
it would be appropriate in this particular case. And, quite frankly, I don’t believe that
the other charge for which Mr. Brummett received a five-year sentence would be
sufficiently connected. While he was dealing with the co-defendant [for the stolen
ATV], . . . he was convicted for receiving stolen property, which is a separate and
independent crime [from conspiracy to manufacture methamphetamine]. . . . And the
other charge that forms the basis for the 851 enhancement is even more tenuous.
And so the Court doesn’t believe that it would be appropriate [to run the sentences
concurrently or partially concurrently], but I certainly do understand and appreciate
the argument in that regard that has been made.
(Id. at 30-31.)
Examination of the district court’s discussion, especially in light of its colloquies with the
parties, reveals that it adequately “turned its attention to § 5G1.3(c) and the relevant commentary in
[making] its determination.” Covert, 117 F.3d at 945. In Berry, we held that a district court need
not go through the § 3553(a) factors separately in the context of § 5G1.3(c), 565 F.3d at 343, and the
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district court here adequately discussed the § 3553(a) factors before turning to the § 5G1.3(c) issue.
Moreover, here the district court explicitly referred to § 5G1.3(c)—albeit not the commentary—and
discussed its discretion thereunder to run Brummett’s federal sentence concurrently, partially
concurrently, or consecutively. Compare United States v. Coleman, 15 F.3d 610, 613 (6th Cir. 1994)
(vacating a consecutive federal sentence when the district judge “did not expressly turn his attention
to § 5G1.3(c) and Application note 3 of the commentary” and the reviewing court could not
determine “whether the district court’s failure to expressly address the guideline and commentary
resulted in an incorrect application of the Sentencing Guidelines”), with Sentencing Hr’g Tr., Dist.
Ct. Docket No. 206, at 29-30 (specifically addressing “whether [the federal] sentence should be
concurrent or partially concurrent under 5G1.3” to Brummett’s undischarged state sentence). And
though the district court did not specifically discuss the factors in the commentary, “the totality of
the record shows that the [district] court considered each of the factors contained in application note
3(A) and thus committed no error.” Harmon, 607 F.3d at 239. The district court and Brummett’s
counsel had an extensive discussion about the nature and length of the sentences for both of
Brummett’s state convictions, (see Sentencing Hr’g Tr., Dist. Ct. Docket No. 206, at 13-15),
demonstrating that the district court considered the “type (e.g., determinate, indeterminate/parolable)
and length of [Brummett’s] prior undischarged sentence,” U.S.S.G. § 5G1.3 cmt. n.3(A)(ii); see also
Watford, 468 F.3d at 917. Furthermore, the district court’s focus on the relatedness of the facts
underlying the state and federal sentences is appropriate, see Watford, 468 F.3d at 917, and
understandable given that defense counsel concentrated almost exclusively on this issue in his §
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5G1.3(c) argument. The record thus demonstrates that the district court adequately examined the
factors in § 5G1.3(c) and the commentary in reaching its decision.
III.
For the foregoing reasons, we AFFIRM Brummett’s consecutive sentence of 240 months.
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