United States v. Dalen King , 914 F.3d 1021 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0014p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> Nos. 18-3416/3417
v. │
│
│
DALEN KING, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:11-cr-00381-1—Solomon Oliver, Jr., District Judge.
Decided and Filed: February 1, 2019
Before: CLAY, McKEAGUE, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Catherine J. Adinaro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Dalen King faced the possibility of serving sixty-one
months in prison for multiple drug-possession convictions and violations of supervised release.
But after considering all the circumstances surrounding King’s offenses, the district judge
ordered him to serve only thirty-six months in prison. The first thirty months were punishment
for King’s drug convictions and the final six months for the violations of supervised release. The
judge called the sentence “a blessing.” King argues that it was procedurally unreasonable.
Nos. 18-3416/3417 United States v. King Page 2
Specifically, King asserts that the district judge failed to sufficiently explain why he ordered that
the six-month prison sentence for the supervised release violations run consecutively to, rather
than concurrently with, the thirty-month prison sentence for the drug convictions. Finding no
error in the adequacy of the district judge’s explanation, we AFFIRM.
I.
In 2011, King pleaded guilty to being a felon in possession of ammunition, in violation of
18 U.S.C. § 922(g)(1). He received a sentence of forty-six months’ imprisonment followed by
three years of supervised release. Supervision began on September 25, 2015.
King struggled to comply with the terms of his supervision. Two years after it began, the
U.S. Probation Department filed a notice with the district court detailing multiple supervised
release violations, including unauthorized use of drugs and failure to comply with substance
abuse treatment. King was also suspected of moving to a new residence without informing his
probation officer, possessing a firearm, and selling cocaine from his new residence. Federal
officers obtained a warrant to search King’s residence, which they executed in September 2017.
In the course of the search, officers discovered various contraband, including airsoft
pistols, baggies of marijuana, scales, and a cell phone. They also found King—hiding in a closet
with his hands down the back of his shorts. King’s behavior made officers suspicious that he
was attempting to hide drugs on his person. King, however, repeatedly denied possessing
anything illegal. Officers arrested King and transported him to the U.S. Marshal’s facility in the
Akron Federal Courthouse. During their strip search of King at the federal facility, officers
discovered a plastic baggie containing cocaine and cocaine base.
A federal grand jury subsequently indicted King for three drug offenses: possessing with
intent to distribute cocaine (Count 1) and possessing with intent to distribute cocaine base (Count
2), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possessing cocaine and cocaine base
while a prison inmate1 (Count 3), in violation of 18 U.S.C. § 1791(a)(2). King pleaded guilty to
all charges.
1This charge was based on the officers’ discovery of cocaine and cocaine base during
their strip-search of King at the federal facility.
Nos. 18-3416/3417 United States v. King Page 3
King’s probation officer thereafter filed an updated supervised release violation report
with the district court, adding new allegations based on King’s drug convictions and his failure to
report a residence change. The report also reiterated the earlier report’s allegations that King
failed to comply with substance abuse treatment and had tested positive for drug use. King later
admitted to committing all alleged violations.
On April 20, 2018, the district court held a combined sentencing and supervised release
violation hearing. At the hearing, the court addressed the recommended term of imprisonment
for the drug convictions and the supervised release violations in turn. The U.S. Sentencing
Guidelines recommended a thirty- to thirty-seven-month prison sentence for the drug convictions
and a twenty-four- to thirty-month prison sentence for the supervised release violations. The
applicable statute, however, placed the maximum term of imprisonment for the supervised
release violations at twenty-four months. See 18 U.S.C. 3583(e)(3). The Government urged the
court to impose a prison “sentence within the Guidelines range” for the drug convictions and a
consecutive prison sentence of twenty-four months for the supervised release violations. King
requested a total combined sentence falling below the Guidelines range. In his sentencing
memorandum, but not at the hearing, King had also argued that the sentences should run
concurrently.
After considering the parties’ arguments, the court sentenced King to an aggregate term
of thirty-six months in prison—a thirty-month term for King’s drug convictions and a
consecutive six-month term for his supervised release violations. The court then asked counsel if
there were any objections. Defense counsel replied, “No, your Honor.”
II.
King’s sole argument on appeal is that his sentence was procedurally unreasonable
because the district court failed to explain its rationale for ordering that the sentences run
consecutively. Normally, we review sentences “under a deferential abuse-of-discretion
standard.” United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)). But “[w]here a party has failed to object to a procedural defect”
at the sentencing hearing, “we review claims of procedural unreasonableness for plain error.” Id.Nos. 18-3416/3417 United States v. King Page 4
(citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc)). As King
concedes, he did not raise any objections at his hearing. Accordingly, we apply the plain-error
standard of review. To satisfy that standard, King must show “(1) error (2) that was obvious or
clear, (3) that affected [King’s] substantial rights and (4) that affected the fairness, integrity, or
public reputation of the judicial proceedings.” Id. (citation omitted). This is a demanding
standard. As we have observed, a “plain error” is an error that is “so plain that the trial judge
was derelict in countenancing it.” Vonner, 516 F.3d at 386 (citation and alterations omitted).
King fails to show that the district judge committed any error at all, let alone a “plain” one.
When imposing multiple sentences of imprisonment at the same time, a district judge has
discretion to order that they run concurrently or consecutively. 18 U.S.C. § 3584(a). The
exercise of that discretion, however, is predicated on the judge’s “consideration of the factors
listed in 18 U.S.C. § 3553(a)”2 and “any applicable Guidelines or policy statements issued by the
Sentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011) (citing
18 U.S.C. § 3584(b)). The policy statement applicable here, U.S.S.G. § 7B1.3(f), provides:
Any term of imprisonment imposed upon the revocation of . . . supervised release
shall be ordered to be served consecutively to any sentence of imprisonment that
the defendant is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the revocation of . . .
supervised release.
This policy statement “is not binding on the district court”—indeed, construing it as binding
“would be reversible error.” Johnson, 640 F.3d at 208 (citation omitted). Nonetheless, the
district court “must consider § 7B1.3(f) when it is applicable . . . .” Id. (emphasis added)
(citations omitted). Normally, evidence that the court considered § 7B1.3(f) (or any other policy
statement) comes in the form of an “explicit reference” to the provision at the sentencing
hearing. United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011) (citation omitted). “But a
2The § 3553(a) factors include: the nature and circumstances of the offense and the
history and characteristics of the defendant; the need to reflect the seriousness of the offense,
deter criminal conduct, protect the public, and provide the defendant appropriate treatment;
sentencing ranges and other considerations set forth by pertinent Guidelines or policy statements;
avoiding unwarranted sentencing disparities; and providing restitution to victims. 18 U.S.C.
§ 3553(a).
Nos. 18-3416/3417 United States v. King Page 5
sentencing court need not” make such an explicit reference “if there is some other evidence in
the record that it considered the section” and the court makes “generally clear the rationale under
which it has imposed the consecutive sentence . . . .” Id. at 335–36 (citations omitted).
King asserts that the district judge erred by failing to explicitly mention the applicable
policy statement3 and by inadequately explaining the reasons for imposing a consecutive
sentence. Both arguments fail. First, while the district judge did not explicitly reference
§ 7B1.3(f) during the sentencing proceedings, the record nonetheless demonstrates that he
considered it. The judge indicated that he read the information presented in the supervised
release violation report, which contained a lengthy explanation of the relevant statutory and
Guidelines provisions, including U.S.S.G. § 7B1.3(f). Additionally, the judge responded to the
Government’s argument that King should receive a consecutive sentence of twenty-four to thirty
months for the supervised release violation with the clarification, “You think I should give him
24 months on top of the Guideline range [for the drug convictions]?” (emphasis added). The
Government affirmed, “Yes, your Honor. That’s what the Government is requesting.” Finally,
after the district judge announced King’s sentence, he explained that the sentence for the
supervised release violation was “recommended to go on top of” the Guidelines-range sentence
for the underlying drug convictions. These statements all demonstrate that the district judge
considered, without explicitly mentioning, the relevant Guidelines provisions and policy
statements, and that he understood that he had discretion to run the sentences either
consecutively or concurrently.
Additionally, the record does not demonstrate any error in the adequacy of the district
judge’s explanation for imposing a consecutive sentence. Before announcing King’s sentence,
the district judge explained that he considered “the purposes of [§ 3553(a)], . . . the Guideline
range, . . . the nature and circumstances of the . . . crime that [King] pled guilty to, [and his]
3King argues that the district court was required to consider U.S.S.G. § 5G1.3(d), but
“that provision does not apply to sentences imposed for violations of supervised release”;
instead, it “applies to sentences for convictions that occur while a defendant is on supervised
release, not a supervised release violation itself.” United States v. Cochrane, 702 F.3d 334, 347
n.1 (6th Cir. 2012) (internal citations omitted). The relevant policy statement in this case is
U.S.S.G. § 7B1.3(f). See id.; Johnson, 640 F.3d at 208 n.8.
Nos. 18-3416/3417 United States v. King Page 6
history and characteristics . . . .” The judge told King that he had a “significant history of drug
possession and drug use,” which demonstrated that he was “not learning much in the drug area,”
and emphasized that King needed “to come to a point where [he] [could] kind of get a handle on
[his] life and . . . find a way to move forward in a positive way.” And although the judge looked
favorably on the fact that King earned his GED while previously incarcerated and explained that
King could not “be blamed” for his difficult upbringing, the judge nonetheless concluded that
King had “to be held responsible for what” he had done. Finally, after announcing King’s terms
of imprisonment, the district judge elaborated further. He told King:
So you’re going to have a total of 36 months total. And that’s a blessing.
You may not know it. But, you—you were facing the possibility of having the
two years of supervised release, which is recommended to go on top of your [30-
month sentence for the drug convictions] . . . . So you’ve tried to fashion it so it’s
not as onerous as it could be.
...
So the overall sentence is going to be 36 months custody . . . . I’m
confident that this sentence meets the requirements of 3553(a) . . . .
...
And so I feel comfortable that this sentence is enough. It’s sufficient.
This explanation makes adequately clear that the judge believed an aggregate thirty-six-month
sentence satisfied the goals of § 3553(a). And it demonstrates that the judge’s discussion of the
length of King’s aggregate sentence was, permissibly, “intertwined” with the determination that
the terms of imprisonment should run consecutively. Johnson, 640 F.3d at 208; see also United
States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009) (“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.”). King fails to show that the lack of further explanation specific to the consecutive
nature of his sentences was error at all, let alone a “plain” one.
Still, despite the district judge’s lengthy commentary, King suggests that the district
judge’s explanation was plainly erroneous because the judge did not explicitly respond to a one-
sentence argument King raised in his sentencing memorandum. In his memorandum, King
pointed out that the Sentencing Guidelines assigned him two additional criminal history points
Nos. 18-3416/3417 United States v. King Page 7
for violating the law while on supervised release, which increased the sentencing range for his
drug convictions. He asserted that, due to the additional criminal history points on his drug
convictions, a concurrent term of imprisonment for the supervised release violation would satisfy
the § 3553(a) factors. But the district judge’s failure to expressly respond to this brief and
“conceptually simple” argument was not plain error. Rita v. United States, 551 U.S. 338, 358
(2007). “[A] sentencing judge is not required to explicitly address every mitigating argument
that a defendant makes, particularly when those arguments are raised only in passing.” United
States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008) (citations omitted). This argument likewise
fails to show any error in the judge’s explanation.
III.
For these reasons, we AFFIRM the district court’s sentence.