OPINION
Defendant Steven Clark appeals his conviction and sentence on two counts of knowingly, intentionally and without authority distributing cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). He argues that the district court erred when it (1) refused to authorize the expenditure of funds for a clinical psychologist to assist in the guilt and sentencing phases of his trial; (2) refused to compel the government .to produce a copy of notes prepared by an FBI Agent who had interrogated Defendant after his arrest; (3) refused to grant a mistrial for the government’s alleged failure to comply with Federal Rule of Criminal Procedure 16 by failing to produce the agent’s notes in a timely manner; (4) refused to grant a downward departure in his sentence for his purported diminished capacity; and (5) ordered Defendant’s sentence to run consecutively to the term of his imprisonment on his state law offenses. For the reasons that follow, we AFFIRM Defendant’s convictions, but REMAND to the district court for consideration of whether Defendant’s term of imprisonment on his federal conviction
I.
Facts
On June 16, 2000, after a confidential informant (“Cl”) had been searched for contraband and equipped with a recording device, an undercover agent accompanied the Cl to the residence of Tim Knox in Shelbyville, Tennessee. Defendant Steven Clark sold crack cocaine to the Cl in exchange for $200 in pre-recorded funds. The Cl relinquished the recording device and 0.5 grams of crack cocaine to the agents. Similarly, on October 13, 2000, after a Cl had been searched for contraband and equipped with a recording device, an undercover agent accompanied the Cl to McGee’s Trailer Park, also in Shel-byville. The Cl entered a trailer and found Defendant in the living room. Defendant sold crack cocaine to the Cl in exchange for $100 in pre-recorded funds. The Cl relinquished the recording device and 0.4 grams of crack cocaine to the agents. At the time of these drug transactions, Defendant was on probation for state charges of sale of cocaine under 0.5 grams, theft over $500, bail jumping, simple possession of marijuana, and driving on a revoked license. His state probation terms were subsequently revoked on various dates in 2001, and he was ordered to serve a series of prison terms expiring in August of 2010.
On March 13, 2002, the federal grand jury for the Eastern District of Tennessee returned a two-count indictment, charging that on or about October 13, 2000 and June 16, 2000, Defendant knowingly, intentionally and without authority distributed cocaine base (crack), a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). On March 18, 2002, Defendant was arrested as a result of the indictment and, after being retrieved from the Rutherford County Jail, was interviewed by FBI Special Agent Richard Poff and Agent Tim Lane of the Tennessee 17th Judicial District Drug Task Force. During that interview, Defendant purportedly admitted to selling crack cocaine in the Shelbyville, Tennessee area and also identified his drug suppliers.
On May 13, 2002, Defendant, through court-appointed counsel, moved for a psychiatric examination to determine his competency to stand trial, his ability to make a voluntary confession and whether there existed any factors that might mitigate his culpability at trial or sentencing. With the concurrence of the government, the magistrate judge referred Defendant to the U.S. Medical Center for Federal Prisoners, requesting opinions regarding whether Defendant suffered from a mental disease or deficit that rendered him mentally incompetent to understand the judicial proceedings or assist in his defense, whether he was insane at the time of the offenses charged, whether there were any factors that shed light on the voluntariness of any statement against interest given by Defendant, and whether there were mental conditions that might mitigate Defendant’s culpability related to trial or sentencing issues.
Defendant was evaluated by Dr. Richard DeMier, a clinical psychologist, over a period of months, culminating in a report generated on August 27, 2002. Dr. DeMier’s report made the following findings: Defendant grew up with both parents, but his father was “very abusive.” His IQ is between 77 and 88, he dropped out of school at age 15, and he has learning disabilities. He has posttraumatic stress disorder (“PTSD”) as a result of being shot 17 times as an 18 year-old; symptoms include intrusive memories, flashbacks, and nightmares. He also has a history of
In addition to the PTSD, Dr. DeMier diagnosed Defendant as having a psychotic disorder. Defendant was prescribed anti-psychotic and anti-anxiety medications, to which his symptoms responded. Dr. De-Mier concluded that “it is most likely that he does not have a genuine psychotic illness at this time,” although he speculated that more psychotic symptoms might appear if Defendant discontinued his antipsy-chotic medication. Thus, Dr. DeMier diagnosed Defendant with only PTSD, which would not preclude Defendant’s ability to understand the nature and potential consequences of the charges against him or hinder his capacity to assist properly in his defense.
A separate report from Dr. DeMier indicated that Defendant denied the allegations in the indictment, to wit, that he had sold crack cocaine to a confidential informant on June 16 and October 13, 2000. Although Defendant acknowledged being a cocaine user, he claimed he was not a seller. He said that the police had used high pressure tactics during his interrogation, that he was told he should “help himself,” and that he was led to believe that if he cooperated, he would receive better treatment. Defendant also told the psychologist that he had requested an attorney at least four times during his interrogation, but that they denied his request.
Dr. DeMier concluded that Defendant had no mental illness or cognitive deficit that would have hindered his ability to give a statement freely and voluntarily to the police. Dr. DeMier further found that Defendant’s PTSD and his possible auditory hallucinations would not have had any impact on his ability to consider his actions and make a reasoned decision to cooperate or refuse to cooperate during the police interview. Dr. DeMier also noted that Defendant’s mental health needs could be met in or out of prison and thus should have little impact on his sentence if convicted.
After the evaluation, Defendant filed a waiver of his mental competency hearing under 42 U.S.C. §§ 4241(c) and 4247(d). The court determined that Defendant was not currently suffering from a mental disease that would render him unable to understand the nature and consequences of the proceedings against him or to properly assist in his defense.
Defendant subsequently filed a motion to suppress the, post-arrest statement he had given to Agent Poff and Agent Lane. Defendant argued that his purported admission to the .agents that he had been buying and selling crack cocaine in the Shelbyville, Tennessee area from March, 2000 through August, 2001 had not been provided knowingly, voluntarily and intelligently because of his untreated mental illness and low intelligence. Defendant’s attorney pointed out that Defendant had been incarcerated in a county jail from December 13, 2000 until the beginning of May, 2001, and, therefore, it was not possible that Defendant had sold all of the crack cocaine he allegedly had confessed to selling. According to Defendant, his admission to something he could not have done demonstrated his mental illness and, by extension, the involuntary nature of his confession.
At the suppression hearing, Agent Poff testified that Defendant had admitted to the agents that he began selling crack cocaine to support his own cocaine habit. Defendant also allegedly told them that he was dating a woman in Shelbyville, Tennessee, and that he would travel to Shelby-ville each weekend to sell crack cocaine. Poff stated, “He began dating her around February or March of 2000. And he continued to come down to Shelbyville to sell
A few weeks before trial, Defendant submitted the report of psychologist Dr. David A. Solovey, who had conducted a preliminary mental evaluation of Defendant at a cost of $300. According to Dr. Solovey’s report, Defendant was competent, he understood the charges against him and the possible penalties he faced, and he could properly assist in his own defense. Although finding that Defendant had PTSD and psychosis during the time he allegedly committed the charged offenses, Dr. Solovey stated that “the degrees of these disturbances were not at a level to satisfy the criteria necessary to eliminate criminal responsibility.” Dr. So-lovey further indicated, however, that there were “several factors that create questions regarding his statements made during his initial questioning” and that several matters “require[d] further evaluation and record review to validate,” including Defendant’s assertion that his interrogation continued despite his request for an attorney; the potential unreliability of many of his statements due to his mental state; and Defendant’s admission to several things he could not have done. Dr. Solovey concluded that these issues could be relevant to Defendant’s defense, but that he would have to spend another 12 hours (including 3 hours of court time), at a cost of $1,800, to provide, a complete assessment of Defendant.
Based on Dr. Solovey’s report, Defendant filed a motion requesting expert services from Dr. Solovey in excess of $1,000, which the court denied. The court noted that both Dr. DeMier (the clinical psychologist from the Bureau of Prisons) and Dr. Solovey had found Defendant competent. The court found that Defendant had not demonstrated that Dr. Solovey’s services were necessary to show that his statement to law enforcement had been involuntary. Indeed, the court previously had held, in connection with his motion to suppress, that his statement had been voluntary. The court further noted that if voluntariness became an issue at trial, the jury would be able to decide the issue without an opinion from Dr. Solovey. The court found that his testimony would not assist the trier of fact in accordance with
Daubert v. Merrell Dow Pharms. Inc.,
Agent Poff testified that he informed Defendant that he had been indicted on federal charges as a result of controlled crack cocaine purchases at two separate locations in Shelbyville, one being the residence of Tim Knox, and the other being McGee’s Trailer Park. Agent Poff added, “Mr. Clark advised us that he did sell crack cocaine from those locations.” When asked on cross-examination why Defendant’s admission regarding the locations of the drug sales did not appear in the FD-302 interview summary Poff had prepared, Poff stated that the information was contained in his rough interview notes upon which he had based the FD-302. He further explained that the location of the drug sales did not appear in the FD-302 because it was only a narrative summary “designed to determine how much crack cocaine he was selling and where he was getting the crack cocaine he was selling.” Also, Poff did not believe Defendant’s admission regarding the locations of the drug transactions was worthy of mention in the FD-302 because the Cl’s tape recordings confirmed that Defendant had sold crack cocaine from the two locations.
At that point, Defendant’s counsel broke off his cross-examination and moved for a mistrial because Agent Poffs rough notes had not been produced before trial, even though Defendant specifically had requested them. The government offered to provide Defendant with the notes, but Defendant’s counsel insisted he should have known about the notes prior to trial because the notes could have affected Defendant’s decision to go to trial in the first place. The court offered to take Defendant’s guilty plea then and there and indicated that Defendant could cross-examine Agent Poff on the notes, but ultimately denied the motion for a mistrial.
When the trial resumed, Defendant’s counsel cross-examined Agent Poff on the omission of the location information from the FD-302. Agent Poff again explained that the FD-302 had failed to mention Defendant’s admission to selling crack cocaine from the locations of the two charged drug sales because the focus of the interview was not the specifics of those drug sales, but rather the quantity of the crack cocaine involved and the identity of Defendant’s suppliers.
A jury found Defendant guilty on both counts of the indictment on December 11, 2002, and Defendant moved for a new trial shortly thereafter. As grounds, Defendant argued that his convictions were against the great weight of the evidence. Defendant also argued that the court had erred when it permitted Agent Poff to testify regarding a statement Defendant gave during his interrogation. According to Agent Poffs testimony, Defendant stated that Defendant admitted to selling crack cocaine from Tim Knox’s trailer; this fact was not included in the narrative summary of the interview Agent Poff had prepared and that was provided to Defendant, but was included in Poffs rough notes upon which the summary was based. According to Defendant, he had requested Poffs rough, notes during discovery and was prejudiced by the government’s refusal to turn them over and the court’s denial of Defendant’s motion to compel their production. Defendant further argued that
The court denied Defendant’s motion, holding that the evidence of Defendant’s guilt was overwhelming, especially in light of the testimony of the confidential informant who had purchased crack cocaine from Defendant — testimony that was corroborated by audio tapes of the transactions. In addition, Defendant confessed to selling crack, although he apparently was not asked if he had sold it on the particular occasions in question.
The court rejected any error with regard to the alleged non-disclosure of Agent Poffs notes containing Defendant’s statement about the locations of the crack sales to which he had admitted. Although the court conceded that, “as a technical matter,” Agent Poffs notes should have been disclosed pursuant to Fed.R.Crim.P. 16(a)(1)(A), and that the court had erred in not compelling the production of those notes, the court found that Defendant had suffered no prejudice. “[M]ost of the essentials” had been disclosed in the Form 302 and during the suppression testimony. In any event, the reference concerning the transaction taking place at Tim Knox’s trailer was not exculpatory. The court held that there was no evidence that had Defendant known that Poff would testify about the precise location of either of the crack sales, the results of his trial would have been any different.
Finally, the court rejected Defendant’s contention that a new trial was warranted for the court’s failure to authorize additional expenditures for Dr. Solovey’s services. The court noted that Dr. Solovey, like Dr. DeMier before him, had concluded that Defendant was competent to stand trial. Although Dr. Solovey did identify several factors that could have impacted the voluntariness of Defendant’s statement to Agent Poff, “Dr. Solovey was never called to provide any of this information to the jury.” Dr. Solovey wanted more money before he would investigate these additional factors. Quoting
United States v. Gilmore,
Defendant also moved for authorization to retain an expert, at a cost in excess of $1,000, to assist him at his sentencing hearing in order to determine the applicability of any mitigating factors. In response, the court referred to Dr. DeMier’s report, which had found that “whatever the defendant’s medical status may be, any argument that it should reduce his culpability is a moral and legal question, rather than a psychological one.” The court also referred to the report of Defendant’s expert, Dr. Solovey, which listed numerous factors that may be relevant to mitigation. The court found that it already had enough information regarding Defendant’s mental status to make an informed decision about his sentence, further noting that mental and emotional conditions are not ordinarily relevant in determining whether a sentence should be outside the guidelines range. The court therefore denied Defendant’s motion.
Defendant also argued that the district court should not impose a prison sentence running consecutively to his state court prison term, which will not expire until 2010. Defendant argued that his criminal history points (20) already took into account his prior state convictions. Were it not for his criminal history, his guidelines range would have been between 21 and 27 months, instead of the 46 to 57 month range stemming from his criminal history and the fact that he had committed the offense while on probation. Defendant argued that a consecutive sentence effectively amounted to a “double penalty” for his federal convictions. The court pointed out that if Defendant were not sentenced consecutively, there would be no incremental increase in his prison term for the federal sentence.
The court denied the motion for downward departure, holding that Defendant did not have diminished capacity and because his prior criminal record evidenced continued disrespect for the law. Citing Guidelines § 5G1.3, application note 6, the court noted that the sentence for Defendant’s offense “should” be imposed to run consecutively to the term imposed for the violation of the probation. The court sentenced Defendant at the top of the Guidelines range — 57 months — to run concurrently on both counts, but consecutively to his state sentence. Defendant timely appealed.
II.
Refusal to Authorize Additional Funds for Psychologist at Trial and Sentencing
Counsel for a defendant who is financially unable to obtain expert services “necessary for adequate representation may request them in an ex parte application.” 18 U.S.C.A. § 3006A(e)(1). Such a defendant must show that the services are “necessary to mount a plausible defense” and “without such authorization, the defendant’s case would be prejudiced.”
United States v. Gilmore,
Dr. Solovey’s preliminary examination of Defendant (at a court-authorized cost of $300) found that Defendant was competent, that he understood the charges against him and the possible penalties he faced, and that he could properly assist in
Dr. Solovey’s preliminary report also hinted that additional evaluation of Defendant may have yielded relevant information regarding the voluntariness of Defendant’s statement to FBI Agent Poff on the day of his arrest. The report referred to “several factors -that create questions regarding his statements made during his initial questioning” and that several matters “require[d] further evaluation and record review to validate,” including Defendant’s assertion that his interrogation continued despite his request for an attorney; the potential unreliability of many of his statements due to his mental state; and Defendant’s admission to several things he could not have done. But the “questions” and unvalidated matters to which Dr. Solovey hinted were little more than speculation. Because the district court already had the benefit of Dr. DeMier’s conclusion that Defendant had no mental illness or cognitive deficit that would have hindered his ability to give a statement freely and voluntarily to the police, the court reasonably concluded that Dr. Solovey’s services were not necessary to establish a
plausible
defense to Defendant’s post-arrest statements, but instead would have amounted to a psychological “fishing expedition.”
United States v. Alden,
Even assuming that the district court erred, its error was harmless because of the overwhelming evidence of Defendant’s guilt.
See United States v. Neuroth,
For similar reasons, we hold that the district court did not abuse its discretion when it refused to authorize expenditures for Dr. Solovey’s assistance at sen
III.
Denial of Defendant’s Motion to Compel Officer’s “Rough” Notes of Post-Arrest Interview
Defendant argues that the trial court abused its discretion when it refused to compel the pre-trial disclosure of the notes taken by Agent Poff during Defendant’s post-arrest interview. For the reasons that follow, we disagree.
The Federal Rules of Criminal Procedure require the government, upon the defendant’s request, to produce “the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent.” Fed. R.Crim.P. 16(a)(l)(B)(ii). Agent Poffs so-called “rough notes” of Defendant’s interrogation qualify as such a written record. They contain, in writing, the substance of Defendant’s post-arrest oral statement made to Agent Poff after Poff had told Defendant that he had been indicted on two counts of crack cocaine distribution. Moreover, Defendant requested the production of these notes. The government did not produce them upon Defendant’s request, and the district court specifically denied Defendant’s motion to compel their production. Accordingly, Defendant arguably suffered a Rule 16 violation that the district court failed to remedy.
We review alleged violations of Rule 16 of the Federal Rules of Criminal Procedure for abuse of discretion.
United States v. Tarwater,
The government argues that no Rule 16 violation occurred because Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure requires the government to disclose only the “substance” of the defendant’s oral statements that the government intends to use at trial and that it disclosed the substance by producing Agent Poffs interview summary. The government, however, ignores Rule 16(a)(1)(B)(ii), which additionally requires the disclosure of “the portion of any written record containing the substance” of such an oral statement. This rule imposes a more specific disclosure obligation than Rule 16(a)(1)(A), and Agent Poffs notes, by definition, constitute a portion of a written record containing the substance of Defendant’s interview. Accordingly, the government violated Rule 16 by failing to turn over Agent Poffs rough notes upon Defendant’s request.
But, as the district court concluded, Defendant suffered no prejudice simply
Defendant nevertheless argues that the inculpatory nature of the statement shows prejudice because he purportedly was not able to make an informed decision to enter a guilty plea (and possibly accept a sentence reduction for acceptance of responsibility rather than proceed to trial).
See United States v. Hernandez-Muniz,
IV.
Denial of Defendant’s Motion for Mistrial
Rehashing his Rule 16 argument, Defendant argues that the district court should have declared a mistrial because it admitted Agent Poffs testimony concerning his rough notes, which were not produced prior to the commencement of trial, in violation of Fed.R.Crim.P. 16.
4
We re
Agent Poffs summary narrative of Defendant’s interrogation (the Form FD-302) did not reflect Defendant’s alleged statement that he had participated in crack sales at the two specific locations charged in the indictment. Defendant argues that he was not on notice that Agent Poff might give trial testimony to this effect for two reasons: (1) the government refused to produce his rough notes (and the court’s refusal to compel their pre-trial disclosure) and (2) Agent Poff did not refer to this statement at Defendant’s pre-trial suppression hearing.
“Rule 16 does not
require
federal courts to exclude evidence not turned over to the discovering party in violation of a discovery order.”
United States v. Bartle,
Defendant argues that a mistrial must be granted when there is evidence that the government willfully withheld the information that is the subject of the Rule 16 violation. There is dicta in some of our cases that arguably supports this viewpoint.
See United States v. Muhammad,
V.
Failure to Grant a Downward Departure Per Guidelines § 5K2.13
Defendant requested, but the district court denied, a downward departure pursuant to Guidelines § 5K2.13, for his purported diminished capacity. 5 Defendant argues that the district court abused its discretion by disregarding the facts that (1) Defendant was not being treated with antipsychotic medication at the time of his offenses; (2) Defendant suffers from PTSD and was being treated for paranoid schizophrenia; and (3) Defendant has a low IQ. The district court’s refusal to grant a downward departure, however, is not reviewable.
A criminal defendant may appeal a sentence in four circumstances, only two of which are relevant here: (1) if the sentence was imposed in violation of law or (2) the sentence was imposed as a result of an incorrect application of the sentencing guidelines. 18 U.S.C. § 3742(a). Because Defendant does not assert either of these two grounds, the only way his appeal is
Generally, a court’s failure to exercise its discretion and grant a downward departure is not reviewable. See, e.g., United States v. Landers,39 F.3d 643 , 649 (6th Cir.1994). An appellate court may only review a denial of a motion for a downward departure if the district court judge “incorrectly believed that [he] lacked any authority to consider defendant’s mitigating circumstances as well as the discretion to deviate from the guidelines.” Id. (citation omitted).
United States v. Coleman,
“The Court reviews
de novo
the issue of whether the district court was aware of its authority to depart downward.”
United States v. Smith,
VI.
Consecutive versus Concurrent Sentences under Guidelines § 5G1.3
Defendant was convicted on both counts of knowingly, intentionally and without authority distributing cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). At the time of his federal conviction, Defendant was serving an undischarged term of imprisonment stemming from the revocation of his probation for several violations of state law. Guidelines § 5G1.3 provides that a federal sentence “may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” Defendant argues that the district court abused its discretion when it ordered that Defendant’s 57 month sentence for his violations of federal law would run consecutively to the term of his state imprisonment, set to expire in 2010. See
United States v. Covert,
Application Note 3 of Guidelines § 5G1.3 states that under subsection (c) of that Guideline, the court “may impose a sentence concurrently, partially concurrently,
The court relied exclusively on Application Note 6 to Guideline § 5G1.3, which provides, in part:
If the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense, and has had such probation, parole, or supervised release revoked, the sentence for the instant offense should be imposed to run consecutively to the term imposed for the violation of probation, parole, or supervised release in order to provide an incremental penalty for the violation- of probation, parole, or supervised release.
Guideline § 5G1.3, application note 6. Arguably, a straightforward application of Note 6 suggests that Defendant’s sentence “should” have run consecutively because he was on state probation at the time of the federal offenses, and his state probation subsequently was revoked. The court’s exclusive reliance on Application Note 6 was erroneous, however, because the court failed to weigh any other factors — i.e. the factors set forth at 18 U.S.C. § 3553(a) — relevant to whether the federal sentence for an offense should run concurrently or consecutively to an undischarged sentence.
The federal statute that governs concurrent versus consecutive sentences clearly states that the district court must consider the § 3553(a) factors in this context. The statute provides that “if a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). The statute then instructs that “[t]he court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively,
shall
consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).”
Id.
§ 3584(b) (emphasis added);
see also Covert,
VII.
Conclusion
For all the foregoing reasons, the Court AFFIRMS Defendant’s convictions, but REMANDS to the district court for consideration of whether Defendant’s term of imprisonment on his federal conviction should run concurrently or consecutively to his state law convictions in light of the factors set forth at 18 U.S.C. § 3553(a) and Guidelines § 5G1.3, application note 3.
Notes
. On cross-examination, Agent Poff testified that he had learned that there was a period of time from December, 2000 through May, 2001, during which Defendant had been incarcerated and, therefore, could not have been engaging in drug dealing activity.
. The court had issued a discovery and scheduling order on March 21, 2002. Paragraph B.l of the order stated that "[u]pon request of the defendant, the government shall permit the defendant to inspect and copy ... [t]he substance of any oral statement made by the defendant before or after his arrest in response to interrogation by a then known to be government agent which the government intends to offer in evidence at trial.”
. Although only age 25 at the time of his indictment, Defendant already had a lengthy list of prior convictions and arrests for a variety of state law offenses, including sale of cocaine, theft, bail jumping, possession of marijuana, and driving on a revoked license.
. Defendant has not argued that the government's nondisclosure of Agent Poff's notes amounted to a violation of
Brady v. Maryland,
. Guidelines § 5K2.13 provides:
A sentence below the applicable guideline range may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense. Similarly, if a departure is warranted under this policy statement, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code.
The Application Note provides:
For purposes of this policy statement—
"Significantly reduced mental capacity” means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
. These factors include the nature of the offense and history, of the defendant; the adequacy of the sentence as a deterrent and as a punishment that is just, protects the public, and rehabilitates the defendant; the sentencing range for the offense; and policy statements of the Sentencing Commission. 18 U.S.C. § 3553(a). These factors also include the type and length of the prior undischarged sentence; the time served on the undischarged sentence and 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, or at a different time before the same or different federal court; and any other circumstance relevant to the determination of an appropriate sentence for the instant offense. Guidelines § 5G1.3, application note 3.
. Mandatory consideration of the § 3553(a) factors is consistent with the Background commentary that appears at the end of the Application Notes to Guideline § 5G1.3. It states:
Background: In a case in which a defendant is subject to an undischarged sentence of imprisonment, the court generally has the authority to impose an imprisonment sentence on the current offense to run concurrently or consecutively to the prior undischarged term. 18 U.S.C. § 3584(a). Exercise of that authority, however, is predicated on the court's consideration of the factors listed in 18 U.S.C. § 3553(a), including any applicable guidelines or policy statements issued by the Sentencing Commission.
Guidelines § 5G1.3, application note, background (emphasis added). See Covert,117 F.3d at 945 n. 7 (“The background to § 5G 1.3(c) makes specific reference to 18 U.S.C. § 3584, which requires that the district court consider the factors outlined in 18 U.S.C. § 3553(a), when considering whether to impose a concurrent or consecutive sentence on a defendant who is already subject to an undischarged term of imprisonment.'').