USA v. Kipp James
OPINION filed : AFFIRMED James's sentence, decision not for publication pursuant to local rule 206. Danny J. Boggs, Authoring Circuit Judge; Raymond M. Kethledge, Circuit Judge and Curtis L. Collier, Chief District Judge, ED/TN.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0414n.06
Jun 27, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
KIPP T. JAMES,
LEONARD GREEN, Clerk
On Appeal from the United States
District Court for the Southern
District of Ohio
BOGGS and KETHLEDGE, Circuit Judges; and COLLIER, Chief District Judge.*
BOGGS, Circuit Judge. Kipp James appeals the district court’s decision to impose
his 92-month sentence for being a felon in possession of a firearm consecutive to an undischarged
state prison term. He contends that the district court relied on an impermissible factor supported by
no evidence—the condition of the state prison system—in deciding to impose a consecutive
sentence. Because the district court did not commit plain error by relying on clearly erroneous facts,
and because the court’s sentencing decision was based on relevant factors, as set out in United States
Sentencing Guidelines (“U.S.S.G.”) §5G1.3(c) and its commentary, we affirm James’s sentence.
The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern
District of Tennessee, sitting by designation.
United States v. James
On August 3, 2008, James was found in possession of a Keltec pistol, a round of
ammunition, and a large rock of heroin. James had multiple prior felony convictions for assault,
drug possession, and drug trafficking. On January 7, 2009, he was indicted on one count of firearm
possession by a convicted felon, in violation of 18 U.S.C. § 922(g), and one count of heroin
possession, in violation of 21 U.S.C. § 844.
By the time of the federal indictment, James was in state custody. He had been indicted for
trafficking in cocaine and heroin by an Ohio grand jury on July 3, 2008—one month before the
conduct leading to the charges at issue here. In February 2009, he was convicted of drug trafficking
by a state court. His state sentence expires on July 13, 2014.
James pled guilty to the firearm charge on April 27, 2009. The district court imposed a
sentence of 92 months of imprisonment, to be served consecutive to James’s state sentence, along
with three years of supervised release and a $1,000 fine. Before imposing the sentence, the court
noted its discretion, pursuant to 18 U.S.C. § 3584 and U.S.S.G. §5G1.3(c), to impose either a
consecutive or a concurrent sentence. The court recognized that § 3584 directed it to consider the
factors listed in 18 U.S.C. § 3553(a) in making its decision. The court also quoted Application Note
3(A) to §5G1.3(c), which directs a sentencing court to consider:
(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
(iii) the time served on the undischarged sentence and the time likely to be served
(iv) the fact that the prior undischarged sentence may have been imposed in state
court rather than federal court . . .; and
United States v. James
(v) any other circumstance relevant to the determination of an appropriate sentence
for the instant offense.
§5G1.3(c), comment. (n.3(A)).
Because James committed the federal offense while on pretrial release on state charges, the
district court reasoned that a consecutive sentence was necessary:
Prior state sentences have had insufficient effect on Mr. James. Moreover, he
committed this offense barely a month after being indicted for drug trafficking by the
State of Ohio. Clearly the fact that Mr. James was under indictment was insufficient
to deter him from engaging in criminal behavior by possessing a gun and drugs.
Therefore, imposition of consecutive terms of sentence is required as a deterrence
measure and to protect the public from future crimes of the defendant.
The court added that a concurrent term would “leave this offense unpunished” and give James “a free
pass,” and that “[t]he speed with which you commit offenses should not inure to [your] benefit.”
The court also cited James’s drug addiction and the fact that he could receive substance abuse
treatment while in federal custody. It acknowledged James’s disadvantaged background, but found
that, given his “lengthy and serious criminal record,” this did not “outweigh the need for the sentence
to promote punishment, protection and deterrence.” Finally, the court stated:
I also consider the uncertainty of the state system. Right now they’re cutting
treatment and vocational training. There’s nothing to give me a sense of comfort that
there won’t be a major release of offenders in the near future from the state system
which would result in a total miscarriage of justice if Mr. James were given credit for
a sentence he ultimately didn’t serve in the state system.
On appeal, James challenges his sentence as unreasonable. He argues that the district court
relied on an impermissible factor without factual support in determining his sentence: speculation
that Ohio might release him before his state sentence expires.
United States v. James
Appellate review of a district court’s sentencing decision is limited to determining whether
it is “reasonable.” Gall v. United States, 552 U.S. 38, 46 (2007). The review is two-tiered: the
appellate court first determines whether the sentence was procedurally reasonable; it then asks
whether the sentence was substantively reasonable. Id. at 51. As this court recognized in United
States v. Berry, however, “[a] challenge to a court’s decision to impose a consecutive or a concurrent
sentence is not easily classified as ‘substantive’ or ‘procedural.’” 565 F.3d 332, 342 (6th Cir. 2009).
Under Gall, procedural errors include “failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” 552 U.S. at
51. A sentence may be substantively unreasonable if it is based on impermissible factors, or if the
judge fails to consider the § 3553(a) factors or gives undue weight to any factor. United States v.
Martinez, 588 F.3d 301, 328 (6th Cir. 2009). James alleges both that the district court relied on
“erroneous facts”—a procedural violation—and that it considered an “improper factor”—which can
be construed as a claim of substantive unreasonableness.
To the extent that he alleges procedural error, we review James’s claim for plain error
because he failed to present it to the district court when invited to do so. See United States v. Bostic,
371 F.3d 865, 872–73 (6th Cir. 2004). After pronouncing sentence but prior to adjourning the
proceedings, the court must inquire of the parties whether they have any objections. Ibid. Here, the
district court pronounced the sentence and asked for “Comments, suggestion, objections?” This is
not the “full Bostic question as typically phrased.” United States v. Jackson, 2011 WL 1597665, at
*3 n.1 (6th Cir. April 28, 2011). Given the context, however, we believe it amply met the
requirements of Bostic by providing the defense a fair opportunity to raise objections. James’s
United States v. James
counsel asked the court, “Did you state that the situation at [the Ohio correctional facility] militates
toward a longer sentence?” The court replied, “It indicates to me not necessarily longer, but certainly
not concurrent.” The court added that James needed “substantial time to deal with a longstanding
drug addiction problem.” Although this would have been an obvious time to do so, James’s counsel
did not challenge the court’s allegedly improper reliance on “the uncertainty of the state system,”
arguing only that 92 months was “longer than necessary” for James to receive drug treatment. James
preserved an objection to the substance of his sentence, but this objection did not permit the district
court to correct its purported procedural error. See United States v. Harmon, 607 F.3d 233, 237–38
(6th Cir. 2010). This is precisely the situation the Bostic rule is designed to avoid. We therefore
review his procedural-unreasonableness claim for plain error.
Under plain error review, James must “show (1) error (2) that ‘was obvious or clear,’ (3) that
‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public
reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)
(en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). The district court
did not commit plain error in referring to the “uncertainty of the state system.” The court did not rely
on clearly erroneous facts in speculating that an early release of state prisoners was possible.
Moreover, even were this statement erroneous, James’s substantial rights and the fairness of the
proceedings were not undermined by the reference, because the district court also based his sentence
on the § 3553(a) factors and thoroughly explained its reasoning in doing so.
To the extent that James asserts substantive unreasonableness, the district court’s decision
that his federal sentence should run consecutive to the state sentence is reviewed for abuse of
United States v. James
discretion. See Berry, 565 F.3d at 342. The court “does not abuse its discretion when it makes
generally clear the rationale under which it has imposed the consecutive sentence and seeks to ensure
an appropriate incremental penalty for the instant offense.” Ibid. (internal quotation marks omitted).
This court looks to “the record on appeal [for evidence] that the district court turned its attention to
§5G1.3(c) and the relevant commentary in [making] its determination of whether to impose a
concurrent or consecutive sentence.” United States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009).
As detailed above, the record here demonstrates that the district court looked to §5G1.3(c)
and its commentary for guidance and made its rationale for imposing a consecutive sentence clear.
The court emphasized the need for punishment and deterrence. It considered the length of the state
court sentence and determined that a consecutive sentence was necessary to adequately punish the
federal offense. The district court did not base its decision to impose a consecutive sentence solely
on the possibility of James’s early release from state prison. Moreover, that possibility was not a
clearly improper consideration. Application Note 3(A) states that the court should consider “the time
likely to be served before release,” “the fact that the prior undischarged sentence may have been
imposed in state court rather than federal court,” and “any other circumstance relevant to the
determination of an appropriate sentence.” §5G1.3(c), comment. (n.3(A)(iii–v)). Because the
district court considered relevant factors which justified its decision to impose a consecutive
sentence, it did not abuse its discretion in imposing the sentence.
Because the district court’s decision to impose James’s sentence consecutive to his
undischarged state sentence was not unreasonable, we AFFIRM his sentence.
United States v. James
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