NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 14a0166n.06
No. 12

- 5265 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. MONICA M. DENTON , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.

PER CURIAM. Monica M. Denton, a federal prisoner, appeals through counsel the sentence imposed following her guilty plea to a charge of conspiring to distribute oxyc odone. After negotiating a plea agreement, Denton entered a guilty plea to the above charge in 2012. A presentence report (PSR) calculated her guidelines sentencing range at 84 to 105 months ’ imprisonment. Denton objected to the PSR and filed a sentenci ng memorandum arguing that the district court should not assess an additional three points on her criminal history for an undischarged federal sentence from 2011. In that case, Denton had entered a guilty plea to aiding and abetting a Hobbs Act robbery and received a sentence of 77 months ’ imprisonment. Denton argued that, if both cases had been p rosecut ed together, she would not have the extra points on her criminal history. At the sentencing hearing, the G overnment noted that the investigation of the drug conspiracy was not complete as t o all of the defendants in time to prosecute Denton’s two crimes simultaneously. The district court rejected Denton’s argumentNo. 12

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United States v. Denton

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- that it should not count the three points

. Denton then argued that her sentence should ru n concurrently with her prior sentence. However, the district court found that justice required separate penalties for the two unrelated offenses. The court sentenced Denton to 99 months ’ imprisonment and ordered that the sentence would run concurrently with the prior sentence beginning on the date of sentencing. Because Denton had already served sixteen months on the first sentence, this resulted in a total sentence of 115 months for the two crimes, the top of the guidelines range that would have applie d if the two cases had been prosecuted together. On appeal, Denton argues that her sentence should have run completely concurrently with the prior sentence. The G overnment filed a motion to dismiss the appeal on the ground that Denton’s plea agreement w aived her right to appeal unless her sentence was above the guidelines
range. The G overnment relies on United States v. Sharp , 442 F.3d 946, 949

- 52 (6th Cir. 2006), as authority for dismissing an appeal where the plea agreement waived the defendant’s righ t to appeal. However, it notes that in a similar appeal, United States v. Bowman , 634 F.3d 357, 3 60

- 61 (6th Cir. 2011), we denied a motion to dismiss an appeal challenging consecutive sentences where the plea agreement waived appeal of a sentence under th e guidelines maximum. The
G overnment’s attempt to distinguish that case is not persuasive. In both cases, the G overnment could have included a waiver of the right to appeal a consecutive sentence in the plea agreement.
W e will therefore address the meri ts of Denton’s argument.
We review a criminal sentence for reasonableness under an abuse of discretion standard. See Gall v. United States , 552 U.S. 38, 41 (2007). It was within the district court’s discretion to run Denton’s sentence concurrently, cons ecutively, or partially concurrently pursuant to USSG § 5G1.3(c). No abuse of discretion will be found where the district court makes clear itsNo. 12

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- rationale for running a sentence consecutively or partially consecutively and imposes an appropriate incrementa l penalty for the new offense. See United States v. Berry , 565 F.3d 332, 342 (6th Cir. 2009). The district court did exactly that in this case, finding that justice required separate penalties for the two unrelated offenses, discussing the sentencing fac tors, and also addressing Denton’s argument that her two offenses could have been prosecuted together, by calculating the guidelines sentence range for a joint prosecution and imposing a sentence within that range. W e accordingly affirm the district court ’s judgment.