USA v. Lionel Rutherford

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. R. Guy Cole , Jr., Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Robert H. Cleland, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

Case: 13-3825

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0287n.06
No. 13-3825
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LIONEL D. RUTHERFORD,
Defendant-Appellant.

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FILED
Apr 16, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: COLE and SUTTON, Circuit Judges; CLELAND, District Judge.
PER CURIAM.

Lionel Rutherford challenges the district court’s imposition of a

consecutive sentence as procedurally unreasonable. We affirm.
In a written plea agreement, Rutherford pled guilty to three counts of bank fraud in
violation of 18 U.S.C. § 1344. He committed these offenses while on release pending his
sentencing and self-surrender to the Bureau of Prisons following a guilty plea in a separate
federal bank-fraud case. The district court sentenced Rutherford to 40 months in prison, and the
court ordered that this sentence run consecutively to the 43-month sentence imposed in the other
case. On appeal, Rutherford contends that the district court failed to provide a clear rationale for
imposing a consecutive sentence, making his sentence procedurally unreasonable.



The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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In reviewing a sentence for procedural reasonableness, we must ensure that the district
court “adequately articulated its reasoning for imposing the particular sentence chosen.” United
States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States,
551 U.S. 338, 356 (2007). Because Rutherford failed to object to the adequacy of the district
court’s explanation for his sentence, we will second-guess the court only if it plainly erred.
United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc).
We find no error, plain or otherwise. A district court need not give a “specific reason”
for a consecutive sentence, United States v. Johnson, 640 F.3d 195, 208–09 (6th Cir. 2011), so
long as it “makes generally clear the rationale under which it has imposed the consecutive
sentence,” United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998) (emphasis added). The
district court’s explanation meets this mark. The court noted that it “ha[d] full discretion” to
impose a concurrent or consecutive sentence, R. 159 at 7, it reviewed Rutherford’s lengthy
criminal history and the nature of his crimes, and it only then concluded:
So, it appears to me as if every time you have been on probation, every time you
have been on supervised release or on bond, you just continue to commit offense
after offense after offense, and they all seem to be of that theft variety. So clearly,
you are not fearful of consequences of appearing for court.
Therefore, it is the judgment of this court that you be committed to the custody of
the Bureau of Prisons to be imprisoned for a term of 40 months on each count, to
be served concurrently. However, consecutive to the time you are presently
serving.
Id. at 19 (emphasis added). From context, it is clear that “[t]he district court’s determination of
the length of [Rutherford’s] sentence and [her] decision to impose the sentence consecutively to
the undischarged [federal] sentence were intertwined.” Johnson, 640 F.3d at 208. Rutherford, in
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other words, was a serial recidivist, and the court considered a lengthy, consecutive sentence the
best way “to satisfy the purposes of sentencing.” R. 159 at 21.
United States v. Cochrane does not change our analysis. In that case, we reaffirmed our
prior decisions in Johnson, Owens and the like, finding that a district court may explain its
consecutive-sentence rationale in any number of ways—but “[w]hat [it] may not do is say
nothing at all.” 702 F.3d 334, 346 (6th Cir. 2012). But Cochrane is not this case. For one thing,
Cochrane involved abuse-of-discretion review, not the more difficult (for Rutherford) plain-error
standard. For another, the district court in that case failed to consider any of the sentencing
factors in 18 U.S.C. § 3553(a) when imposing its consecutive sentence: not the defendant’s
background, not his criminal history, not the nature of his offense. Id. at 346–47. Here, by
contrast, the court discussed exactly those factors—and more. It described Rutherford’s long list
of crimes and the nature of those crimes, see 18 U.S.C. § 3553(a)(1), it discussed the need to
deter Rutherford from future misconduct, see id. § 3553(a)(2), it acknowledged its ability to run
Rutherford’s sentences concurrently or consecutively, see id. § 3553(a)(3), and it referenced the
Sentencing Guidelines policy statement that supported a consecutive sentence in Rutherford’s
case, see id. 3553(a)(5). This is far from saying “nothing.”
Rutherford adds that the district court should have emphasized several other factors
raised by counsel at his sentencing hearing, including his “family life and obligations” and
“potential disparities between the district court’s consecutive sentence and other defendants.”
App. Br. at 18. But sentencing courts are allowed to emphasize certain factors and downplay
others. See United States v. Bridgewater, 479 F.3d 439, 442 (6th Cir. 2007). And “a district
court does not commit reversible error simply by attaching great weight to a single factor.”

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United States v. Zobel, 696 F.3d 558, 571 (6th Cir. 2012) (internal quotation marks and
alterations omitted). “Where—as here—a district court explicitly or implicitly considers and
weighs all pertinent factors, a defendant clearly bears a much greater burden in arguing that the
court has given an unreasonable amount of weight to any particular one.” Id. (internal quotation
marks omitted). Rutherford has not met this burden.
Rutherford’s challenge fails for another reason. Even if the district court could have said
more to explain its thinking, Rutherford has not shown that the court’s explanation caused him
prejudice. According to the Sentencing Guidelines, “[i]f the instant offense was committed . . .
after sentencing for, but before commencing service of, [a] term of imprisonment, the sentence
for the instant offense shall be imposed to run consecutively to the undischarged term of
imprisonment.” U.S.S.G. § 5G1.3(a) (emphasis added). And here, Rutherford committed his
three bank-fraud offenses while on release after sentencing and pending self-surrender in a
separate federal case. Rutherford therefore received the sentence advised by the guidelines, and
he has not presented any evidence that the court’s error—if indeed there was one—affected his
substantial rights. See United States v. Olano, 507 U.S. 725, 734 (1993) (“It is the defendant
rather than the Government who bears the burden of persuasion with respect to prejudice.”);
United States v. Fears, 514 F. App’x 579, 583 (6th Cir. 2013).
For these reasons, we affirm.

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