United States v. Stevenson, No. 10-6510 (6th Cir. Oct. 13, 2011) (unpublished). Panel of Judges Moore, Griffin, and White.
Defendant appealed 24-month consecutive sentence for supervised-release violation. Argued sentence was procedurally unreasonable b/c ct failed to appreciate that it had the discretion to impose a concurrent sentence.
COA remanded for resentencing.
GL range for violations was 21 to 27 months. Sentencing ct imposed a 24-month sentence to be served consecutively to any state term defendant was serving.
COA found that the dist ct had attempted to address all of the defendant's arguments, so the sentence was not procedurally unreasonable b/c of a failure to consider the arguments.
Defendant argued that the dist ct wrongly concluded that the Bureau of Prisons would not honor a recommendation that the SR sentence and the undischarged state sentence be concurrent. Defendant argued that the dist ct did not mention or consider 5G1.3(c) (addressing concurrent and consecutive sentences and factors to consider).
COA considered 5G1.3(c) and 7B1.3(f) (which provides for consecutive sentences in the SRV context). Citing its recent decision in United States v. Johnson, 640 F.3d 195 (6th Cir. 2011), the appellate court reiterated that 7B1.3(f) does not strip a district court of the discretion to impose a concurrent sentence for a supervised-release violation. In this case, the Sixth Circuit found that "Unlike in Johnson, it is not clear from the district court's remarks whether it understood it had discretion to impose a concurrent sentence." So COA remanded.
