NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0105n.06 No. 12-1377 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. MICHAEL ALLEN MOORE, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED S T ATES DISTRICT COURT F OR THE WEST ERN DISTRICT OF MIC HIGAN

Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judg e. M i chael Allen Moore pled g uilty without a plea ag ree ment to being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g )(1)

. At the time he possessed the firea rm, he was on parole for a state conviction. The district court sentenc ed Moore to a withi n-Guidelines sentence of fifty -seve n mo n t h s , ex p ressing its intent that Moore’ s fede ral sentence run partially consec utive to any sentenc e that the state of Michig an may impose for his parole violation. Moore timely filed this appeal , alleg ing that his sentenc e is proce durally unrea sonable beca use the district court failed to acknow ledg e its discretion to impose

a fe d er al sentenc e concur rent to any y et-to-be -imposed state sentenc e on his parole revoc ation. Moore also claims that his sentenc e is substantively unrea sonable because the district court failed
to acc ount for the potential duration of any parole revoc ation sentenc e the state court may impose.

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United States v. Moore Be cause Moore has not demonstrated that his sen te n c e is p r o c e durally or substantively unrea sonable,

we a ffirm the judg ment of the district cour t. I. On J une 28, 2011, Gra

nd Rapids police officers saw Moore leaving a house suspected of harbor ing prostitutes. Moo re i n itially cooper ated with the office rs and ag ree d to a sear ch of his person. Howeve r, as the office rs beg an to conduct the sear ch, Moore fled. Moore eventua lly tripped and fe ll, allowing the of

fice rs t o restra in him. A s ear ch of Moore’ s person led to the discover y of ammunition. Scanning the ar ea ne arby , office rs found a pistol. During his pr esente nce interview, Moore claimed to have purcha sed the wea pon on the street. Prior to possessing this firea rm and ammunition, Moore had been convicted in Michig an of felony assault. As a result of this incident, the state of Mic higa

n char g ed Moore with a par ole violation and petitioned to revoke his parole. On September 28, 2011, befor e the state of Michig an had taken any action on his parole

v i o l at i o n, Moore was indicted in fede ral court for being a felon in possession of a firea rm, i n violation of 18 U.S.C. § 922(g )(1)

. Moore pled g uilty to the indictment without a plea agree ment. At his sentenc ing hear ing, the district court calculate d Moore’ s Guidelines rang e as fi ft y -seve n to

s ev enty -one months. Moore argued that the district court had discretion to impose the fede ral
sentenc e concur

rent to the y et-to-be -imposed state sentenc e. The g overnme nt responde d t hat the district court lacke d this authority beca use no state sentenc e had y et been imposed. The district court conclude d that it did possess the discretion to run Moore’ s fede ral sentenc e concur rent or

consec utive to his potential, y et-to-be -imposed state sentenc e, ult i m at el y s entenc ing Moore to a within-Guidelines sentenc e of fifty -seve n months. In its judgme nt, the district court provided that: -2-No. 12-1377

United States v. Moore The Court expressly intends that the BO P cre dit ag ainst the (57) months all the time defe ndant has been in e ither state or fede ral c ustody on this matter from the date of arr est on J une 28, 2011, up to and including the day on which the State of Michig an actua lly decide s whether to revoke defe ndant’s state pa role and return defe ndant to State custody

. After the date of the state decision , t h e C o u rt intends that the BO P cre dit to the defe ndant’s fede ral sentenc e only the time defe ndant spends in fe dera l custody ; howeve r, t he C ourt intends that any such fe dera l custodial time following the state’s decision of parole be cre dited in favor of defe ndant on the fede ral sentenc e even if the State for its own purposes also chooses to cre dit the time ag ainst any state imposed sentence

. II. Ge n er ally , a district court’s decision to impose a consec utive or concur rent sentenc e i s revie wed for an abuse of discretion. Sets er v. United States , 132 S. Ct. 1463, 1472–73 (2012). Ho we v er , when “def

ense counsel does not object with a rea sonable deg ree of specific ity t o a purported pr o cedural error, a plain err or st andar d of review applies.” United St ates v. Gibbs , 626 F.3d 344, 349 ( 6th Cir. 2010). Here , at the conc lusion of the sentenc ing hear ing, the district c ourt asked if the parties ha d any leg al objections to the s entenc e im posed. Both parties responde d that they did not. The g overnme nt a rgues that this fa ilure to obje ct to the proce dural component of the district court’s d i s cre tion to impose a concur rent sentenc e require s this court to apply plain err or revie w, citing to Gi b b s . However, Moore’ s counsel argued his proce dural point befor e the court imposed its sentenc e, noting that “the Court

. . . has the rig ht to m ak e t h i s s en t en ce run

concur rently ,” and that “the Court ha s available to it the rig ht to make the sentenc e that it believes is appropr iate under the circ umstances and have that run concur rent as long as there ’s a rea sonable basis to do so.” There fore , we view both obj ec t i ons as having been raised with particula rity at sentenc ing and revie w them both for abuse of discretion. See United States v. Bostic , 371 F.3d 865,

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United States v. Moore 871 n. 3 (6th Cir. 2004) (quoting Fe dera l Rule of Criminal Procedur e 51(b)’ s require ment that “[a] party may prese rve a claim of err or by informing the court—whe n the court ruling or order is made

or sought —of the action t h e p ar t y wi s h es the court to take, or the party ’s objection to the court’s action and the g rounds for that objection.” (empha sis in Bostic )); United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) ( en banc ) (holding that answe ri n g “n o ” to the court’s Bostic reque st for

rema ining objec tions does not alter a de fenda nt’s rig ht to appeal issues “ previously raised” ). III. Moore argues that the district court abused its discretion by failing “to find definitively ” that it had the discretion to fashion either a concur rent or a consec utive sentenc e, noting that the district
court a rticulated that it had “to honor the statutory

restric tions that Congre ss imposes.” Howeve r, Moore takes the district court’s c omments out of context, i g noring its subsequent admonition that “within [t he statutory restric tions] there ’s a g reat ocea n almost of discretion that the Court has to be

m i n d ful of.” Throug hout Moore’ s sentenc ing hear ing, the district court fre quently rec og nized its discretion, despite the g overnme nt’s argument t h at it lacke d such discretion. For example, the district court noted that “ultimatel y under Section 3553 and the world of sentenc ing that we’ re in today , the fundame ntal point for the Court is one of discretion, whether the g uidel i n es ca l l for something or not.” There fore , we hold that Moore’ s sentenc e is proce durally rea sonable, g iven that the district court proper ly rec og nized its discretion to fashion a consec utive or concur rent sentenc e. IV. Moore next argues that the district court err ed in order ing that his within-Guidelines sentenc e

run partially consec utive to any y et-to-be -imposed state sentenc e on his parole violation. Howeve r, -4-No. 12-1377

United States v. Moore he conce des in his brief that section 5G1.3 of the Sentencing Guidelines provides advisory

r e c o mme ndations on whether sentenc es should run consec utively or concur rently and tha

t th e d is tric t court may exercise its discretion in deter mining which ty

pe of sent en ce i s ap propriate in a g iven

case . 1 Sentence s imposed within the advisory Guidelines rang e—as this one was—a re entitled to

a re b u t t able presumption of rea sonablene ss on appea l, and this court will not overturn a sentenc e “just beca use it believes that another sentenc e would be appropr iate.” United States v. Y oung , 553 F.3d 1035, 1055 (6th Cir. 2009); see also United States v. Lyles , Nos. 11-5774, 11-5818, 2012 WL 5 9 0 7 4 8 3, at *11 (6th Cir. Nov. 26, 2012) (noting the court’s inability to locate a case i n wh i ch a defe ndant succe ssfully rebutted the rea sonablene ss o f a within-Guidelines sentenc e). Moore has provided no rea son to persua de us that his sentenc e is substantively unrea sonable. His arg ument on the issue is simply that the district court had discretion to impose a concur rent sentenc e and that, in choosing a consec utive sentenc e, th e c o u r t f a il ed to consider the potential duration of Moore’ s y et-tobe-imposed pa

role re vocation sente nce.

United States SentencingGuidelines sec tion 5G1.3(c) pr ovides: 1 Imposition of a Sentenc e on a Defendant Subject to an Undi s ch arged Term of Imprisonment (c) (Policy Statement) I n any other case i n v o lving an undischarg ed term of imprisonment, the sentenc e for the instan t o ffense may be imposed to run concur rently , partially concur

rently , or consec utively to the prior undischarg ed term of imprisonment to achieve a re asonable punishment for the instant offe nse.

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United States v. Moore At the time of Moore’ s sentenc ing, Setser v. United States , 132 S

. Ct. 1463 (2012), was pending in the Supreme Court. I n Setser , the Supreme Court c onfirmed that fede ral district c ourts have the authority and discretion to order that a fede ral sentenc e run consec utively to an anticipated but y et-to-be -imposed state sentenc e. 132 S.Ct

. at 1472. The Setser Court continued by noting that

a sentenc e cannot be deeme d substantively unrea sonable beca use of information unavailable at the time of sentenc ing. See id. at 1472–73. During Moore’ s sentenc ing hear ing, the district court

rec og nized that its choice of a consec utive or concurre nt sentenc e was discretionar y . I t then went on to exercise that discre tion, rejec ting a fully concur rent sente nce: I don’t think fully concur rent in the way that [defense counsel] means it, which would count any state time he serve s in the future afte r a revoc ation that g ets fede ral time too, Idon’t think that’s appropriate. And I don’t think it’s appropriate for the g ener al p o l i cy rea sons that underg ird other aspec ts of the g uideline[s] , not just the 5G1.3 but also the supervi s ed rele ase commentar y , which is a policy statement I think, that you need to have incre mental p u nishment when there ’s a supervision v i o l at ion and a new offe nse. And I think that’s g ener ally true. And I thi n k t h at ’s appropr iate here too. There needs to be incre mental punishment. And this cre ates the opportunity for that, albeit leaving that final decision in the state hands beca use they are the people who have the supervision issue. Although Moore takes issue with the court’s failure to consider the potential duration of any parole revoc ation sentenc e, his argument ignor es the fac t that the state court in Moore’ s case had the option of continuing Moore on parole , reinstating an old term of imprisonment, or imposing a new term of imprisonment. The district court considere d that any of these options would be available in subsequent state court proce eding s, but it could not have considere d the “duration” of a hy pothetical
sentenc e in fashioni n g M o o re ’s fede ral sentenc e. I ts failure to do so, there fore , does not rende r Moore’ s sentence substantively unrea sonable.

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United States v. Moore Given the streng th of the rebuttable presumption, and Moore’ s failure to identify fac tors available to the di strict court at the t ime of sentenc ing tha t the district court failed to consider, we hold that Moore’s se ntence is substantively rea sonable. V. Acc ording ly , we aff

irm the district court’s judg ment.

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