Case Information
*1 Before: MARTIN and ROGERS, Circuit Judges; and HOOD, District Judge. [*] ROGERS, Circuit Judge
. Charles Lamont Jackson appeals his sentence for violation of the terms of his supervised release. Jackson admitted to multiple violations of the terms of his federal supervised release, including being convicted of a new felony charge in state court. Jackson raises three issues on appeal. First, he asserts that the district court erred in believing that the policy statement in § 7B1.3(f) of the sentencing Guidelines required it to impose a sentence for the violation of his supervised release that is consecutive to the ten-year sentence Jackson is now serving in Ohio. Second, he argues that the district court erred by failing to consider the factors enumerated in 18 U.S.C. § 3553(a). Finally, he claims that his counsel provided him with ineffective assistance in the sentencing process, rendering his sentence invalid. Because the record reflects that the district court did not recognize its discretion to impose a concurrent sentence, we reverse and remand for resentencing.
In January of 1999, subsequent to a plea of guilty to the charge of possession of marijuana with the intent to distribute, the federal district court sentenced Jackson to six months of imprisonment, followed by supervised release for two years. In April of the following year, his probation officer petitioned the district court for a warrant for Jackson, alleging several violations of the terms of Jackson’s supervised release and recommending that his supervised release be revoked. In a later violation report, Jackson’s probation officer noted that by committing a state felony while on supervised released, Jackson had committed a Grade B violation of his federal supervised release. Based on that violation and Jackson’s criminal history, the probation officer calculated Jackson’s Guideline range to be 8-14 months; the officer recommended that the court sentence Jackson to 14 months’ imprisonment to be served consecutive to his current state sentence of ten years.
At an evidentiary hearing with the magistrate judge, and in later objections, Jackson admitted that he violated various terms of his supervised release. During the hearing, Jackson’s attorney stated that any sentence given for violation of supervised release must be imposed consecutively to the state sentence he is currently serving, saying, “it’s my understanding under 7B1.3(f), any term of imprisonment for this revocation has to run consecutive to any other sentence. Of course I’d like to argue that it would run concurrent, but if that’s the guideline and that’s the rules, that’s the rules.” JA 52.
Neither the court nor either party corrected defense counsel’s error in suggesting that the policy statement requiring a consecutive sentence was mandatory. However, in his “Objection to the Report and Recommendation,” Jackson stated that he “feels that anything [i.e., the sentence] he receives should run concurrent with his Ohio sentence . . . .” JA 26. The magistrate judge’s Supplemental Report and Recommendation responded to Jackson’s request for a concurrent sentence in part by stating that “because of U.S.S.G. § 7B1.3(f), [Jackson’s] term of imprisonment must be served consecutively to the state sentence.” JA 29 (emphasis added). The district court adopted the findings of fact and law in the Report and Recommendation and Supplemental Report and Recommendation and sentenced Jackson to a consecutive 14 month sentence. JA 37.
Because it was Jackson’s counsel who told the district court that it did not have discretion
to enter a concurrent sentence, and because he did not raise any objection below, any error that may
have resulted from the court’s believing that it lacked discretion to impose a concurrent sentence is
subject to plain error review.
United States v. Koeberlein
,
(“Where, as here, a criminal defendant has failed to object below, he or she must demonstrate that
the error was plain as defined by Fed.R.Crim.P. 52(b) before we may exercise our discretion to
correct the error.”). “To vacate a sentence for plain error, [the court] must find (1) an error that (2)
is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
United States v. Cousins
,
The record clearly suggests that the district court erroneously believed that the policy
statement limited its discretion to impose a concurrent sentence. In the Supplemental Report and
Recommendation, the magistrate judge stated that, “because of U.S.S.G. § 7B1.3(f), that term of
imprisonment
must
be served consecutively to the state sentence.” JA 29 (emphasis added).
Furthermore, this error was “plain” because it is clear that application of the policy statement is
discretionary.
United States v. Sparks,
Because the plain error in this instance involved the court’s failure to recognize its discretion
under the Guidelines, prejudice is presumed for the purposes of appellate review. In
United States
v. Barnett
,
Because the district court’s error in treating the policy statements as mandatory requires remand for the imposition of a new sentence, we need not reach Jackson’s argument that the district court erred in its application of the § 3553(a) factors in imposing this sentence. Similarly, inasmuch as Jackson’s ineffective assistance of counsel argument relies only on his counsel’s performance in relation to the sentencing process, that issue is moot.
For the foregoing reasons we REVERSE Jackson’s post-revocation sentence and REMAND for resentencing.
Notes
[*] The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting by designation. 1
[1] The Government argues that Jackson “waived” this issue, however, it appears that the
Government is using waiver as a synonym of forfeiture inasmuch as the Government never suggests
that Jackson is forgoing a known right.
See United States v. Denkins
,