* The Honorable Paul R. Mati a, Chief Unit ed Sta tes Dist

ric t Ju dge f

or the Northern District

of Ohio, sitt ing by designati on.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0324P (6th C ir.) File Name: 04a03 24p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

S TEVEN G. C LARK , Defenda nt-Appel

lant. X - - - -
> , - - N No. 03-5431

Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 02-00014—R. Allan Edgar, Chief District Judge.

Submitted: August 3, 2004 Decided and Filed: September 23, 2004

Before: CLAY a

nd GIL MAN, Circuit Judges; MATIA, Chief District Judge. *

_________________ COUNSEL

ON BRIE F: M. Keith D avis, AUST IN, DAVI S & MITC HELL, Dunlap, T ennesse e, for A ppell ant. Perry H. 2 United Sta tes v. Clar k No. 03-5431

Piper, ASSISTANT UNI TED STATES ATTORNEY, Chattanooga, Tennessee, for Appe llee.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Steven Clark

appeals his convictionan d s en te nc e o n t wo co un ts of kn ow in gl y, intentiona

lly and witho

ut author ity distributi ng coc aine bas e (crack), a Schedu le II c ontrolled 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 gui lt and sentencing p hases of his trial; (2) refu sed to com pel the g overnme

nt to pr oduce a copy of note s prepared by an FBI A

gent who h a d interrogated Defendant af ter his arrest; (3) refused

to gran t a mistrial for the governme nt’s alle ged fa

ilure to c omply

with F EDERAL R

ULE OF C RIMINAL P ROCE DURE 1 6 by failing to produce the age

nt’s note s in a timel

y ma nner; (4 ) refus ed to grant a downward departurein his sentence for his purported diminishedcapaci

ty; a nd (5) or dered D efenda

nt’s sente nce to
runconsecutively to the ter m of his imprisonment on his state lawoffenses. For t

he r easons that follow, we AFFIRM Defendant’s convicti ons, but REMAND to the district court for cons i deration of whether Defendant’s ter m of imprisonme

n ton his federal conviction should run
concurr ently or conse cutively

to his state

law convictions.

I. Facts

OnJune 16, 2000, after a

confidential informant (“CI”) ha d been searched for contraband and e quipped with a recording device, an undercover agent ac companied the CI to the residence of Tim Knox in Shelbyville, Tennessee. Defendant Stev en Clark sold crack cocaine to the CI in exchange for $200 in pre-r

ecorde d funds. T

he CI relinquishe d theNo. 03-5431 United Sta tes v. Clar k 3

recording device and 0.5 grams of crack coc aine to the ag ents. Si mi la rl y, on October 13, 2000, after a CI had been searched for contraband and equipped with a recording devi ce, an undercov er

a gent accompanied the CI to McGee’s Trailer Park, also in Shelbyville. The CI entered a trailer and found Defendant

in the living room. Defendant sold crack cocaine to the CI in exchange for

$100 in pre-recorded funds. The CI relinquished

the rec ordin g device and 0.4 grams of c rack cocaine to the age

nts. At the

time of the se drug tr

ansacti ons, Defendant

was on pr

obation f or state charges of sale of cocaine under 0. 5 grams , th eft ove r $500 , bail jump ing, simple possession of marijuana, and d riving on a revoked license. His state

probation terms were subsequently revoked
onvarious dates in 2001, and he was ordered to serve a series of prison terms expiring in August of 2010.

OnMarch

13, 2002, the federal grand jury for the Eastern Distric t of Tenne ssee returned a two-cou nt indictme

nt, charging that on or about October 13, 2000 and June 16
, 2000, De fendant knowingly , intentionally and without authority distribute d cocaine base (cra ck) , a S che dul e II controlled

substance, in vi olat ion of 21 U.S.C. § 841(a)(1). OnMarch 18, 2002, Defendant was arre sted as a result of the i ndictment

and, after being retrieve d from the Ruthe rfor d County Jail, was interviewed by FB I Spe cial Ag ent Richard Poff and Age nt Tim Lane of the Tennessee 17th Judicial District Drug Ta sk

Force. During that interview, De fendant purporte dly

admit ted to selli ng c rack c ocaine in the Sh el byv ille, Tennessee area and also identified his drug suppliers.

OnMay 13, 2002, Def

endant, through court-appointed counsel, move d for

a psy chia tricexa minati on to dete

rmine his compe tency

t o stand trial, his ability to make a voluntary confession

and whether thereexist ed any fa ctors that might mitigate his culpability at trial or sentencing . With the
concurrenceof the govern ment, the ma gistr ate ju dge referred Defendant to the U.S. Medical Center for Fed eral Pris oners, requestingopinions r

egard ing whe ther Def endant suffe red 4 United Sta tes v. Clar k No. 03-5431

froma mental d

isease or defic it th at rende red him me

ntally inco mpetent

to unders tand the j udicial proceed ings or a ssi s t inhis defense, whether he was insane at the time of the offens es char ged, whether there wer e any fa ctors that shed l ighton the volunt

ariness of any statemen t again st intere st given by Defe

ndant, and wh ether 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 psycholog ist, 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, an d he has learning disabilitie s. He has posttraumatic str ess disorder (“PTSD”) as
a result of being shot 17 times as an 18 y ear -old; sym

ptoms include intrusive

memories , flashba

cks, and nightma res. He also has a histo ry

of drug and alcohol abuse . Prior to h is incarceration, he regula

rly used cra

ck cocaine.

Inaddition to the PTSD, Dr. DeMier diagnosed Defenda nt
as having a psy

chotic disorder. Defendant was pr escri bed antipsy choticand anti- anxiety

medicati ons, to which his sym ptoms responded. Dr. DeMier c oncluded that “it ismost likely that he do es not hav e a ge nuine psy chotic ill ness at th is time,” although he speculated that more psychotic sy

mptoms mig htappear

if Defe ndant disc ontinued h

is antipsy choti c medication. Thus, Dr. DeMier diag nos ed Defe

ndant with only PTSD, which would not preclude Defend ant’s ab ility

to understand

the nature and potential consequenc e s of the ch ar ges against him or hind er his ca pacity to assist pr

operly in his defense.

A separa te repor t from Dr . DeMi er indicated that Defendant denied the allegations in the indictm ent, to wit, that he had sold crack cocaine to a confidential informant on June 16 and October 13, 2000. Alth ough Defendant acknowledged be ing
a cocaine user, he claimed he was no t a seller. He said thatNo. 03-5431 United Sta tes v. Clar k 5

the police had used h igh pr essure t actics d uring hi s interrogation, that he wa s told he should “help himself,” and that he was led to believe that i f he coop erated , he would receive better tr

eatment. Defend

ant also to ld the psy

cholog ist that he had requested an

attorney at least f our times d

uring hi s interrogation, but

that they denied hi s reques t.

Dr. DeMier

concluded that Defendant had no mental illness or cogniti ve defic it that wou

ld have hi

ndered h is ability to give a statement freely

and voluntarily to the pol ice. Dr. DeMier further found that Defenda nt’s P TSD and his

possible auditory hallucinations would not have had any impact on

his ability to conside r his actions and make a reasoned decision to cooperate or refuse to co operat e during the police i nterview. Dr. DeMier also noted that Defendant’s menta l health needs could be met in or out of prison and thus should have little impact on his sentence if convicted.

After the eval uation, D efenda

nt filed a waiver o f his mental competency

hearing under 42 U.S.C. §§ 4241(c) and 4247(d). The court de

termined that Def

endant w as not cur

rently suffering from a mental disease that would re nder him u

nable to understand the nature and co nsequ ences o f the p roceed ings against him or to properly assist in his defense.

Defendant

subseque ntly filed a motion to suppressthe postarrest statement

he had given to Agent

Poff and Agent La

ne. Defend ant arg ued that h is purpor ted admiss ion to the a

gents that he had been b uying and s elli ng c r ack cocaine in the Shelby ville
, Tennes see are a from March, 2000 t hrough Aug ust, 2001 had not been provided knowingly , voluntar il y and intelligently bec ause of his untreated men ta l 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 c rack cocain e he all egedly had c onfes sed to selli ng. According

to Defend

ant, his admissi on to somet hing he could 6 United Sta tes v. Clar k No. 03-5431

1 On cross-examinati on, Agent Po ff test ifi ed that

he had learned tha t there was a p eriod of time fr om December, 2000 thr ough May, 2001, during whi ch Defe ndant had b een incarcer ated and, ther efor e, cou ld not have been engag ing in dr ug de aling ac tivity.

2 The court ha d issu ed a discover y and sch edulin g order on March 21, 2 0 02. Paragraph B .1 of the order stat ed that “[u]pon request of t he de fend ant, the government shall permit the defendant t o inspect and copy... [t]he subst ance of an y oral st ateme nt ma de by the defendant before

or after his arr est i n re spons e to i nter rogat ion by

a th en know n to be government agen t which the gover nment i ntends t o offer

in evi dence at trial.” nothave don e demonstrated his mental illness and, by extension, the involuntary nature of his conf ession.

At the suppression hearing, Agent Poff testified tha t Defendant

had admit

ted to the agents t ha t he began selling crack cocaine to support his own cocaine habit. Defenda nt also allegedly

told them that he was dating a woman in Shelbyville, Tenness ee, and that he wo

uld trave l to Shelby ville eac h weeke nd to sell crack cocaine. Poff stated, “He began

datin g her around February or March of 2000. And he continued to come down to Shelbyville to sell cra ck cocaine through A

u gust of 2001 when he was arrested on a pro bationviolation. ” Poff al so stated that he to o k contemporaneous notes of the interview, which h e later summarized

on a Form FD-302. The For m FD-30 2 stated, “CLA RK advised he sold crack c ocaine in Shelbyville from March 2000 through August 2001....” 1 The FD-302 made no reference to the locations of the two crack cocaine sales cha rged in the indic

tment. The

court ulti

mately denie d Defendant’s motion to suppress. Later, D efe ndant filed a motion to compel the governmen t to pr oduce copies of any notes taken by law e nforcem ent a gents du

ring the ir interrogation

of Defendant as well as “any other rough notes made by s uch a gents,” 2 but the court denied this motion without explanation.No. 03-5431 United Sta tes v. Clar k 7

A few weeks before trial, Defendant submitted the report of psycholog ist

Dr. Davi d

A. Solovey, who had conduc ted a preliminary

mental evaluation

of Defe ndant at a cost of $300. According

to Dr. Solo vey ’s repor

t, Defen dant was c ompetent , h e und erstood t

he char ges ag ainst him a

nd the poss ible penalties h e faced, and he could properly assist in his own defense. Although finding that Defendant hadPTSD and psychosis during the time he allegedly committed

the charged offense s, Dr. Solove

y st ated tha t “the de grees

of these disturb ances were not at a level to satisfy the criter i a necessary to eliminate

criminal responsibility.” Dr. Solovey further indicated, however, that there were “ several factors that create questions regar

ding his s tatement s made dur ing his initial questioning” and that several matters “re quire[d] further evaluation and record review to validate,” i ncluding Defendant’s assertion that his interrogation continued despite his request for an attorney ; the potentia l unrelia bility of many of his statements due t

o his menta

l state; and Defendant’s admission t o several things he could not have done. Dr. Solo vey conclude d that the se issues could be r

elevant 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.

Bas ed on Dr. Solovey’s re

port, Defendant filed a motion requestingexpert services from Dr. Solove y in excess of $1,000, which the

court de nied. The

court not ed that b ot h Dr. DeMier (t

he clinical psychologist from the Bureau of Prisons) and Dr. So lo vey had foun d Defen dant comp etent. The court found that Defendant had not demonstrated that Dr. Solovey’sservice s were necessa ry to show that

his statement to law enforcemen

t had bee n inv oluntary. I

ndeed, the court previous ly

had held, in connec

tion with hi s motion to
suppress, that his statement had been voluntary . The c our t further noted tha t if volunta

riness be camean issue at trial, the jury would be ab le to decide the issue without an opinion fromDr . S ol ov ey. The cour t found tha

t his testimony

would notassist the trier of fact in accordance with Daubert v. Merrell Dow Pharm. Co., 509 U.S. 517 (1993). 8 United Sta tes v. Clar k No. 03-5431

Trial commenced on December 1 0, 2002. As to Def endant’s post-ar

rest inte rview, Agent Lane test

ified th a t he had read Defendant

his Miranda rightsbefore Agent Poff interviewed

him, and that Defe

ndant consen ted to the interviewwithoutthe presence of an attorney

. He also signed a waiver of rights. He stated that Ag ent Poff then explained to Defen dant that he had been indicted on two counts of distributing cocaine base on the two specific dates charged

in the indictment. Agent Poff testified that he informed Defendant that he had been indicted on feder al char ges as a result of controlled crack cocaine purchases at two separate locations in Shelby ville,
one being the residence of Tim Knox, and the other bein g McGee’s Trailer Park. Agent Poff added, “Mr. Clark advised
us that he di d sellcrack cocaine from those locations.” When asked on cross-examination why Def endant’ s admission regarding the locations of the drug sales did not appear in the FD-3 02 intervie

w summary

Poff had p

repare d, Poff sta

te d that the infor mation wa s contained in his roug h interview notes upon which he had based the FD-302. He furthe r explained that the location of the drug sales did not appear in the FD-302 because it was on ly a narrative summary “designed to determi ne how much crack cocaine he was selling and wh ere he w as gett ing th e crack cocaine he wa s selling.” Als o, P off did not believe Defendant’s admission regarding the locations of the drug transactions was worthy of mention in the FD-302 because the CI ’s tape recordi n gs confir med that Def endant ha d sold cra

ck coca ine from t

h e two locations.

At that point, Defendant’s counsel br oke off his crossexamination and moved for a mistrial because Agent Poff’s rough notes had not

been produced before trial, eve nthou gh Defendant

specifically ha

d 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 affe cted Defendant’s decision to go to trial in the first pla ce. The court of fered t oNo. 03-5431 United Sta tes v. Clar k 9

take Defend

ant’s g uilty 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 , Defen dant’s c ounsel cr

ossexamined Agent Poff on the o missi on of the location informationfrom the F D-302. Agent Poff again explained that the FD-302 had faile d to mention Defendant’s admission to selling crack cocaine

fromthe locations of the two charged drug s ales because the focus of the interview was not the specifics of those d

rug sales, but rather the quantity of the crack cocaine involved and the identity of Defendant’s suppliers.

A jury found Defendant guilty on both coun ts of

the indictmentonDecember 11, 2002, and Defendant moved for
a new trial shortly there after. As grounds, Defendant arg ued that h is co nvictions were against the gre at weight of the
ev idence. Defendant also argued that the c ourt ha d erre d when it permitted Agent Poff to testify regarding a statement Defendant

gave during his interrog ation. According to Agent Poff’s test im ony, Defe

ndant stated that Defendant admitted to selling crack

cocaine from Tim K

nox’s trail er; thisfact was notincluded in the narrative summary of the interview Agent Poff had prepared and that wa s provi ded to Defendant, but
was included

in Po ff’s ro ugh notes upon which the summary
was based. A ccordin

g to Defendant, he had requested Poff’s rough notes during discovery and wa s pre

judiced by the government’s refusal to turnthem over and the court’s denial of Defendant’s motion to compel their product io n. Defendant further argued that

the court erred when it refused to gran t his motion authorizin

g funds to retain a psy cholog ist to determi

ne the voluntariness of Defendant’s confession; the court er red when it refuse d to continue

the trial to permit a

psychologic al examination of Defendant; and the court erred when it denied Defendant’s motion for a mistrial after it was determined that the gover nment had

not fully

responde d to his dis covery request s. 10 United Sta tes v. Clar k No. 03-5431

The court de nie d Defendant’s motion, holding that the evidence of

Defendant’s guilt was overwhe lming, e special ly in li ght of the testimony of the confidential informant wh o had purchased crack cocaine

fromDefendant – testimony tha t
was corroborated by

audio tap es of the

transactio n s. In additio n, Defendant confessed to selling cra ck, although he appare ntly was not aske d if he had sold it on the particular occasions in question.

The court rejected any

error with regard to the alleg ed nondisclosure of Agent Poff’s notes containing Def endant’s statement about the locations of the cr ack sales to which he had admitted. Althoug

h the cour

t conced ed that, “as a technical matter,” Agent Poff’s notes sho uld have been disclosed pursuant to F ED

. R. C RIM

. P. 1 6(a)(1) (A), and that the court had err ed in not c ompelling

the produ

ction of th

ose notes, the court found that Defe ndant had suffered no prejudice. “[M]ost of the essentials” had be en disclo sed in th e Form 302 and during the suppression testimony . In any event, the reference

concerning the transaction taking place at Tim Kn ox ’s tr ai le r w as no t e xc ul pa to ry. The court held that there was no eviden c e that had Defendant known that Poff would testify about the

precise location of either of the crack sales, th e results

of his tria

l would ha

ve been any differe nt.
Fi na ll y, t h e court r

ejecte d Defen

dant’s c ontention

that a
newtrial was warranted for the court’s f a ilure t o aut

horiz e additional expenditures for Dr. Solovey’s service s. The court noted tha t Dr. Solovey, like Dr. DeMier before him, had concluded

that Defendant wa s compete nt to stand

trial. Alth ough Dr. Solovey did identify several factors that coul d have impacted the voluntariness of Defendant’s statemen

t to Agent Poff, “Dr. Solovey wa s never called to provide any of this informat

ion to th e jury.” Dr . Solovey wanted more money before he would i

n vest igate t

hese add itional fa ctors. Quoting United

States v. Gilmore, 282 F.2d 398, 406 (6th Cir. 2002), the court concluded that Defendant had no t demonstrated

that “‘(1) such services are ne cessary to mount
a plausible defense , and (2)without suc h authori zatio n, theNo. 03-5431 United Sta tes v. Clar k 11

3 Although only ag e 25 at the time of his ind ictmen t, Def endant alr eady had a le ngt hy l ist of pr ior c onvi cti ons an d arre sts for a var iet y of state law off

ense s, incl

udin g sal e of

cocai ne, theft , bail jumping, pos session of ma rijuana , and d riving o n a rev oke d licen se. d efendant’s case would be prejudiced.’” The c ourt furthe r concluded

that Dr. Solovey’s testimony would n ot ha ve assisted t he trier of fact

. Defendant

also move d for aut

horization

to retain an expert , at a cost in e

xcess of $1 ,000, to a ss ist him at his sentencing hearing in order to determine the ap plicability of any mitigating factors. In r

esp onse, the court referred to Dr. DeMier’s report, which ha d fou nd that “whatever the defendant’s medical statu s ma y be , any argume nt that it should reduce his culpa bility is a moral

and leg al quest

io n, rath er than a psychological one.” The court also referr ed t o the r eport of

Defend ant’s expe

rt, Dr. So lovey , which lis te d
numerous fa ctors th at may be re levant to mitigation. The court found tha t it already had enough information regar ding Defendant’s mental status to make an informed decision about his sentence, further noting that mental and emotional conditions are not ordinaril y relevant in determining whether
a sentence should be outside the guidelines range. The court therefore denied Defenda nt’s motion.

Defen d ant

then moved for a downward departure. Defendant

argue d that U.S. S ENT ENC IN G G U IDELI NES M ANUAL (hereafter “G UIDELI NES ”) § 5 K2 .3 author

izes a sentence below the applicable ra n ge if the Defendant committed

the offense

while suf

fering from a sig

nifican tly reduced mental ca

pacity . Defen

dant cite d to his low I

Q, his PTSD, latent sy

phil is, and paranoi d schiz ophrenia. Defendant further argu ed thathe was entitled to a downward departure pursuant to G UIDELI

NES § 5K2.0 becaus e he ha d an abusive father, a history

of drug and

alcohol abuse, a history

of mental illness
, and b ecause his brother, who also had been ar rested for a simi lar offe

nse, was placed on a diversion prog ram. 3 12 United Sta tes v. Clar k No. 03-5431

Defendant

also argued that the distri ct court should not imposea prison s entence running consecu tively to his state court prison te

rm, which

will not expir

e unti l 2010. Defendant

argued that his criminal history points (20) alrea dy took into account his prior

state convictions. Were it not for his criminal

history, his guid

elin es ra nge would have been between 21 and 2 7 months, in stead of the 46 to 57month range stemming from his criminal history and the fact that he had c ommi tted the offense while on probation. Defendant argued that a consecutive sentence effectively amounted to a “double penalty ” for his federa l convic ti ons. The court pointed out th at if Defendant were not sentence d consecutively, ther

e would be n

o incremental inc

rease i nhis prison term for the federal sentence.

The cou rt denied the motion for downward departure, holding that Defendant did not have diminished capacity and because his prior c

rim inal record evidenced continued disres pect

for th e law. Citi ng G UIDELI NES § 5G1.3, applicationnote 6, the

court not

ed that the se ntence for Defendant’s offe nse “should” be imposed to ru n consecu tively to the term imposed for the violation of the probation. The court sentenced Defendant a t the top of the G UIDELI

NES range –

57 months – to run concurrently on both counts, bu t c on se cu ti ve ly t o his s tate sentence. Defendant timely appealed.

II. Refusal to Authorize

Additional F unds for Psy chologist at Trial and

Sentencin g
Counsel for a defendant

who is financ ially

unable to obtain expertservice s “ne cessary for adequate representation may request them in an ex par te application.” 18 U.S.C.A. § 3006A(e)(1). Such a defendant must show that the services
a re “necessary

to mount a plausible defense” and “w ithou t
suc h authorization, the defendant’s case would b e preju diced.” United States v. Gilmore, 282 F.3d 398, 40 6 (6th Cir. 2002). We review the deci si on of the trial courtNo. 03-5431 United Sta tes v. Clar k 13

deny ing a re quest

for expert services for abuse of discretion. Id. Defendant argue s that the distri ct court erred w hen it refused to authorize the expenditure of more than $1,000 for the serv i ces of psyc

hologist Dr. David Solovey. F or the
reasons set forth

below, we hold that the district court did not abuseits discretion in finding that Dr. Solovey’ s services were unnecessary

. Dr. Solovey’spreliminary examination of Def endant (at a court-authorized

cost of $3 00) found that Defendant was compete nt, that he understood the charges aga inst him and the possible penalties he faced, and that he c ould prope

rly assist inhis own defense. Although finding that Defendant suffered fromPTSD and psychosis during the time he committed

the charged offenses, Dr. Solovey concluded that “the degrees of thesedisturbances were not at a level to satisfy the c riter ia necessary to eliminate criminal responsibility.” Dr. Solovey ’s conclusions were vir

tually identica l to those of Dr. DeMier,
a cli nical psychologist from the Bureau of Prisons, wh o similarly had found that Defendant’s mental condition did not inhibit his ability

to unders tand th e n ature and potential consequences of the charges against him o r h inder his capacity to assist properly in his defense

. Dr. Solovey’spreliminary re port also hinted that

additional evaluation

of Defendant may

have yielde d relev a nt informationregarding the voluntariness of De fendant’s statement to FBI Ag ent Poff on the day of his arrest. The report referred to “several fa ctor s that create questions regarding his statements made dur

ing his init ial qu estio ning” and that s ever

al ma tter s “re quire [d] fur ther evaluation and record review to val i date,” including Defendant’s asser tion tha t his interrogation continued despite his request for an at to rn ey; the potentia

l unrelia bility of many of his stat

ements due to his mental state; and Defendant’s admission to several t hings he could not have done. But the “questions” and unvalidated

matters to which Dr. Solovey hinted we re litt le
more thanspeculation. Because the district court alrea dy had the benefit

of Dr. DeMier’s conclusion that Defendant had no 14 United Sta tes v. Clar k No. 03-5431

mental illness or

c ognitive deficit that would have hindered his ability to give a state ment freely

and volun tarily to the police, the cour

t reasonably

conclude d that D r . Solovey’s services were not necessary to establish a plausible

defense to Defendant’s post-arrest statements, but instead w ould have amount ed to a psychological “fishing expedition.” United States v. Alden, 767 F.2d 314, 318 (7th Cir. 1984) (affirming denial of appoin

tment of psychiatrist

at t rial to support insanity defense ; holdin g th at it was appropriate for the districtco u rt to rely on initial psy chiatric evaluations conducted

at prison which f

ound the defendants sane and competent

to stand tr

ial); see also Gilmore, 282 F.2d at 406 (“Adistrict court need not grant a[] defendant’s motion under § 3006A on the off chance that the requested services might turn up something.”).

Even assuming

that the d

istrict cour t erred, its error was harmless because of the overwhe lm ing evidence of Defendant’s gui lt. See United States v. Neuroth, 809 F.2d 339, 342 (6th Cir . 1987) (“ An error, not of c onstitu tiona l dimension, is harmless unless it is more probable than not that the error materially

affected the verdict.”) (c itations omitted). As n oted, Defendant was caught on a udio tape selling crack cocai ne to a conf

idential i nforman t on the two

occasi on s charged in the indictment. Alth ough a dru g ad dict and exconvict himself, t

he confi dential i

nfo rmant confirmed Defendant’s identity and the nature of the drugtransactions at t rial. Thus, even assuming that Defendant’s statem ent t o Agent Poff had been invo luntary

, we hold t

hat it is not more probable thannot that De fendant

would have av oided a g

uilty verdict

. See United States v. Smith, 987 F .2d 888, 892 (2d Cir. 1993) (holding that the erroneous denial of a psychiatrist’sservices to support duress defense was harmless
error because of the “abundant” evidenc e of the def e ndant’s guilt esta bl ished that the availability of a psychiatric expert would not have altered either the verdict or his sentenc e).

For similar r eason s, we hold that the district court did not abuseits discre

tion when it refuse d to authorize expendituresNo. 03-5431 United Sta tes v. Clar k 15

for Dr. Solovey’s assistance

at sentencing. Thecourt

had the benefit of de ta il ed re po rt s f

ro m D r. De Mi er an d D r. So lo ve y. Dr. DeMier’s report concluded that “wha tever the def

endant’s medical status may be, any argume nt that it should redu

ce his cul pability

is a moral and legal question, rather tha n a psychologic al one.” Dr. Solovey’s re port reached no medical conclusionon this poin

t, merely re ferring to eighteen “factors to address the q

ue stion of mitigation” that “could be considered

relevant.” Accordingly , we agree with the district court’s conclusi o n tha t it already had e nough information regarding Defend ant’s men

ta l stat us to make an informed decision about his sentence.

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 A gent Pof f during Defendant’s post-arre st interview. For the reasons that follow, we disagre e.
The F EDERA L R

ULES OF C RIMINAL P ROCEDURE require the gover nment, upon the defendant’s request, to produce “the portionof any

written record containing the substance of any relevant oral s tatement made before or after a rrest if the defendant made the statemen t in response to interrogation by
a person the defendant

knew was a government ag ent.” F ED

. R. C RIM

. P. 16( a)(1)( B)(ii) . Agent Poff’ s so-c alled “rough notes” of Defendant’s interrogation qualify as such a written record. They contain, in wr iting, 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, De fendant requested the produ ction of these note s. The g overnme nt did notproduce them

uponDefendant’s request, and the district court specifically de

nied Defendant’s motion to compel their production. Ac cordingly, Defend ant arg uably suffer ed a Rule 16 vi ol at io n t ha t t he di st ri ct co ur t f ai le d t o r em ed y. 16 United Sta tes v. Clar k No. 03-5431

We review alleged violations of Rul e 16 of the F EDERAL R ULES OF C RIMINAL P ROCEDURE for abuse of discretion. United States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002). Assum ing, arguendo , that a Rule 16 violation occurred, we also review

said violation for harmless error. F ED

. R. C RIM

. P. 52(a) (“Any

error, defect, irreg

ularity, or varia

nce that does notaffect substant i al rights must be disregarded.”). “ An error, not of con stitutiona l dimension , is harmle ss unless it is
more probable than

no t that the error materially affected the verdict.” Neuroth, 809 F.2d at 342.

The government

argues that no Rule 16 violation occurred becaus e Rule 16(a)(1)(A) of the F EDERA L R ULES OF C RIMI NAL P ROCEDURE require s the government to disclose only the “subs tance”

of the de fendant ’s oral s tatements that the gover nment inte

nds to use at trial and that it disclosed the substance by produci

n g A ge nt Po ff ’s in te rv ie w s um ma ry. The governmen

t, h owever, ignores Rule 16(a)(1) (B)(ii), whichadditionally requires the disc losur e o f “ the portion of anywritten record containing the substance” of such an ora l statemen t. This rule

imposes a more specific disclosure obligation

than Rule 16(a)(1)(A), and Agent Poff’s notes, by definition, constitute a portion of a written record containing the substance of Defendant’s interview. Acc or din gly, the government

violated Rule 16 by failing to turn over Agent Poff’s r ough not es upon De fendant ’s reque st. But, as the district court concluded, Defendant suffered no prejudic e si mply from the fact that the notes were produced d uring tri al, as opposed to before trial. As noted, Agent Poff’s rough notes reflected Defe ndant’ s statement that the crack sales charged in the indictment had occu rre d at Tim Knox’s residence and at

McGee’s Trailer Park. Althoug h this statement was not reflected in Agent Poff’s narrative report

of Defendant’s interview (t

he FD-302), which was produced pretrial, thi s statement was not exculpatory. I n fact, it was inculpatory

because it directly

linked Defendan

t to the locations of the dr

ug tran sactions

charg ed in the i

ndictmen t. Becau se it was inculpatory, the statemen t’s nondis closure

didNo. 03-5431 United Sta tes v. Clar k 17

not materially aff

ect Defend ant’s g uilty verdict . But eve

n if it did, when the issue arose at trial, the trial court compelled the disclosure of Agent

Poff’s notes and permitted Defendant the opportunity to cross-examine Ag ent Poff on the note s. Moreover, the independent evidence of Defendant’s presence at the locat ion referenced in Agent Poff’ s notes was overwh elmi ng. Defend

ant has not argued that the mid-trial disclosure of Age

nt Poff’s rough notes resulted in a due process violation on the ground that he did not hav e adequate time to prepare his defense.

Defendant

nevertheless ar

gues tha t th e inculpatory nature of the statement

shows prejudice because he purportedly wa s not able to ma

ke an inf ormed de cision to e

nter a g uilty ple a (and possibly accept a

s entence reduction for acceptance of responsi bility rather than proceed

to trial). See United

States

v. Hernande

z-Muniz, 17 0 F.3d 1007, 1010 (10th Cir. 1999) (“Rule 16 is designed to provide the defendant with sufficient informationto make a

n informe d decision about a p lea, to allow the court to rule o n admi ssibility motions be fore tri al, to minimize pre

judicial s urprise at trial , and to g eneral ly increa se the efficiency

of litigation.”) (citi ng F ED

. R. C RIM

. P. 16 ad vi so ry commit

tee’s note to the 1974 amendment). As the district c ourt point

ed out, however, the “ess en tials” of Defendant’s inculpat

ory st ateme nts to Agent Poff were disclosed prio r to trial in the form of the FBI Form FD-302 report, and Agent Poff

had discussed Defendant’s confession during a suppre ssion hea

ring. T here is no evidence that had Defendant

known tha

t Agent Poff’s r ough not e s refer red to the precise location of either of the cr ack sale s, he woul d

have pled guilty prior to trial

and received a lesser sentence . To the
co nt ra ry, the loc at ion of the charged crack sales was a nonissue in the case because there was unc ontested a udiotap e evidence, authenticated at trial by a c onfide ntial informant and law enforcemen

t wit nesse s, proving that Defendant had sold crack c ocaine a

t those loc ations. Defendant’s argument is simply too speculative to justify a new trial. See Def

’s Br. at 27 (arguing that had Defe ndant known of Agent

Poff’ s notes corroborating

his prese nce at the lo cation s of the drug 18 United Sta tes v. Clar k No. 03-5431

4 Defendant has n ot ar gued t hat the government ’s nondi scl osure of Agent Po ff’s notes am ounte d to a violatio n of Brady v . Mary land, 373 U.S. 83 (1 963 ). Cf. Unit ed States v. Aguwa, 123 F.3d 418, 42 2 (6th Cir. 1997) (finding t

hat government’s f

ailure t o turn o ver “ag ents’ raw notes of eve nts in questi on” was not tant amount to a Brady violation beca use the notes contained no exculpatory inform ation, a nd, in fac t, were h ighly incriminat ing and because t he content

of th e notes w as “l argely refl ected in [the agents’] t

rial t estimony, whi ch directly implicated the defendant”). sales, “ perhaps he would have ree valuate d his deci sion to f orego the timely entry

of a guilty ple a”) (emphasis added )

. We therefore find that the government’ s Rule 16 v iolation was harmless error.

IV. Denial of Defendant’s Motion for Mistrial Rehashing his Rule 16 argument, Defendant arg ues that the district court sho

uld have d

eclare d a mistria

l becaus e it admitted Agent Poff’s testimony

concer ning his r ough not es, whichwere not produced

prior to the commencement o f trial, inviolation of F ED

. R. C RIM

. P. 16. 4 We review the denial of
a motion for a

mistrial for abuse of discretion. United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). A new trial is not required

unless “substantial rights” are affec ted. United States v. Bond, 12 F.3d 540, 554 (6th C ir. 19 93) (ci ting F ED

. R. C RIM

. P. 52(a)) . We hold tha t the distr ict court did not abuse its discretion. Agent Poff’s su

mmary narrat iv e of

De fendant ’ s interrogation (the Form

FD-302) did not reflect Defendant’s alleged statement that he had participated in crack sales a t the two specific locations charged in the indic

tment. Defendant argues that he wa s no t on notice that Agent Poff might give trial testimony

to th is effe ct for two reasons: (1) the government

refused to produce his rough notes (a nd th e court’s refusal to compel their pre-trial d isclosure) and (2) A gent Poff did not refer to this statement at Defenda nt’s pre-trial suppression hearing.No. 03-5431 United Sta tes v. Clar k 19

“ Rule 16 does no t require federal courts to exclud e evidence not turne d over tothe discovering party inviolation of a discovery

order.” United States v. Bartle, 835 F.2d 646, 649 (6th Cir. 1987) (emphasis in original). Rule 16 pr ovides, “If a party fails to c omply

wit h this ru le, the court may ...prohibit

that p arty from i ntrod ucing t h e undisclosed evidence [] or ...e nt er an y o ther order that is just under the circumstances.” F ED

. R. C RIM

. P. 16(d)(2) (emphasis added). Thus, the distri ct court

did not necessarily a

buse its discretion by failing to declare a mistrial due to the government’s failure to turn ove

r Agen t Poff’s r ough not es prior to trial.

Defendant

argues that a mistrial must be granted whe n ther e is evidenc e that the

gover nment wil lful ly withheld the informationthat

is the subject of the Rule 16 violation. There is dicta in some of our cases that arguabl y sup ports this viewpoin t. See United

States v. Muhammad, 948 F.2d 1449, 1454-55 (6th Cir. 1991) (“[W]e find that abse nt a showing of
som e i mpropriety or willfulness by the government, it was within the district court ’s discretion to admit” the statement the defendant allegedly

had made t o the testifying police officer.); see also Bartle, 835 F .2d at 6 49 (holding that the trial co urt w as not re quired to exclude e

vidence withheld i

n violation of Rule 16because th ere was “absolutely no evidence that the governme n t engaged in any

deceitful conduct in keeping the” information from the defendant). It is questionable, however, whether Rule 16 requires a mistrial
even in cases of willfu l non-disc losur e. The p lain l anguage of Rule 16(d)(2) is discretionary; it car ves out no mandatory sanctions for willf

ul violations. Accordingly , the ge neral r ule that “the appropr iate sanction, if a

ny, for a fa

ilure to c omply with Rule 16 is left to the ‘sound discretion of th e trial court,’” Muhammad, 948 F.2d at 1454-5 5 (quo ting United States v. Glove

r, 846 F.2d 339, 342 (6t

h C ir. 1988) ), should apply even to willful violations. Here, the district court dealt with the Rule 16 violation appropriately by c ompelling disclosure of the notes and affording Defe nda nt an opportuni ty for cross-examination. See Bartl e, 835 F .2d at 650 (“Rule 16(d)(2)... provides for a variety of

remedies that 20 United Sta tes v. Clar k No. 03-5431

opt imally all ow the ad

mission of t

he proba tive evid ence wh ile insuring that

the opposi

ng par ty has adequ

ate time to prepare for it.”).

Even assuming that willful violations of Rule16 mandat e a mistrial, there is no evidence in this ca se that t he government

willf ul ly v iolated Rule 16. Although the government

failed t o res pond to Defendant’s discovery request for Agent Poff’s notes, thereby necessitating Defendant’s motion to compel, the district c ourt itsel f

placed its impr imatur on the government’s purported willful nondisclosure by

denying Defendant’s motion. Defendant’s only other evidence of

willfulness is his assertion that Agent Poff, who is a long -te rm FBI agent and holds a law degree, impr oper ly

excluded Defendant’s statement about the locations of the drug transactions from the FD- 302. The evidence at trial showed, however, that Poff did not include the location information in the narrative because the focus of the narrativ e was how much crack cocaine Defendant was selling and its source. Agent Poff also expl a ined that he already knew from the tape r ecordi ngs of the confidential informant that Defendant

had sold crack cocaine from the two locations covered by

the indictment, so there was no pa rticular reason to reference this fact in the FD-302. T hi s evidence shows that the government’s Rule 16 violation was notwillful. Th e denial of Defendant’s motion for a mistrial is therefore affirmed.

V. Failure to Grant a Downward Departure Per

G UIDELINES § 5K2.13

Defendant

requested, but the district court denied, a downward

departure pursuant to G UIDELINES § 5K2.13, forNo. 03-5431 United Sta tes v. Clar k 21

5 G UIDEL I NES § 5K 2.13 p rovides:

A sente nce bel ow the appli cable gui deli ne ra nge may be warrant ed if (1) the d efend ant co mm itted the o ff en se while sufferi ng fr om a si gni fi cant ly reduc ed ment al c apaci ty ; an d (2) the significantl y redu ced menta l capa city c ontrib ute d substa ntially to t

he c ommis si on of

th e of fe nse . Si mi l arly, if a departure is warra nted u nde r this po licy statem ent, the ext ent of the dep artu re should r efle ct the extent to wh ich t he reduced mental capacit

y contr ibuted t o the commis sion of the of fense

. However, the court ma y not de part b elow the ap plicab le guideline range if (1) the sign ificantly red uced menta l capa city

was caused by the volun ta ry use o f drugs or o ther intoxicants; (2) th e fac ts a nd ci rc um sta nc es of th e d efen da nt 's of

fense indica te a need to prot ect t he publi c because t

he off ense i nvolved actual viol ence or

a seri ous thr eat of

viole nce; (3 ) th e d efen da nt 's crimi nal history ind icates a need to incarc erate th e defe nda nt to protect the publi c; or

(4) th e defendant

has been convi cted of an offense under

chapt er 71, 109A, 110, or 117, of t it le 18, United States Code.

The App lication Note p rovides:
For pur poses of t

his poli cy s tat ement

–
“S ignif icantly redu ced menta l capa city” me ans the d efend ant, althou gh convicted, has a si gnifi cantly i mpaired ability t o (A ) understand the wrongf ulness of t

he behavior comprising the offense or to exercise the p ower o f reaso n; or (B) cont

rol beh avior that the d efend ant kno ws is wro ngful. his pu rp or te d d im in is he d c ap ac it y. 5 De fendant ar gues that the districtcourt a

bused i ts discre

tion by disreg arding

the fac ts tha t (1 ) Defen

dant was not being

treated with antip syc

hotic medicationat the time of his offenses; (2) Defendant suffers fromPTSD and was being treated for paranoid schizophrenia; and (3) Defend ant has a low IQ. The district cour t’s refusal to grant a downward departure , however, is not reviewable.

A criminal def

enda nt may appea

l a sentence in four circumst ances, only two of

which are relevant here: (1) if the sentence was imposed in violation of lawor (2) the sentence 22 United Sta tes v. Clar k No. 03-5431

w as imposed as a result of an incorrect application of th e sentenc ing g uideline s. 18 U.S.C. § 3742(a ). Bec ause Defendant

does not as sert eit

her of these two grounds, the only way his appea

l is cogn izable is if he can show that the districtco ur t b el ie ve d i t l ac ke d t he au th or it y t o grant a downward departure. As this Court has stated:

Ge ne ra ll y, a court’s failure to exercis e its discretion and grant a downwa

rd depar ture is not reviewable. See , e.g. , United States v. Landers, 39 F.3d 643, 649 ( 6 th Cir.1994). An appellate court may only review a

denial of a motion for

a downwa

rd depar ture if the district court judge “incorrectly

believed that [he] lacked

any authority to consider defendant’s mitigating circ umstances as well
as the discretion to deviate from the guidelines.” Id. (citation omitted).

United States v. Coleman, 188 F.3d 354, 357 (6th Cir. 1999). A court’s

failure to gran t a downwa

rd depar ture is no t reviewa ble even i f based on cle arly erron eous f indi ngs of fact

. See United Sta tes v. Watki ns, 179 F.3d 489, 501 (6th Cir. 1999) (“Even if t

he fi nding were clearly erroneous, the district court's failure to depart downward still would not be appealable[,] ...as long as the gui del ine rang e was pr operly computed, the district court was not unawa re of itsdiscretion to depart fromthe guideline range, and the se ntence was not imposed in violation of law or as a result of an incorrect applicationof the g

uideline s....”) (c iting 18 U .S.C. § 3742(a); United States v. Davis, 919 F.2d 1181, 1187 (6th Cir. 1990)).

“The Court rev

iews de novo the issue of whether the district court was awa re of its a uthority to depart downward.”United Sta tes v. Smith , 278 F.3d 605, 609 (6th Cir. 2002) (citing Koon v. United

States, 518 U.S. 81 , 100 (199 6); United States

v. Ebolum, 72 F.3d 35, 3 7 (6th Cir.1995)). The Court presumes that the district co u rt under stood its dis cretion to depart, “absent clear evidence in the record

to the contrary .” United States v. Crouch, 288 F.3d 907, 910 ( 6th Cir. 2002) (c iting United States v. Ford, 184 F.3d 5 66, 585 (6 thNo. 03-5431 United Sta tes v. Clar k 23

Cir.1999)). There is

no eviden

ce in this case that the district court did not unders tand it s discretion to depart downward. Indeed, Defend

ant does n

ot argu e this point, only that the court fa il ed to ex er ci se it s d is cr et io n p ro pe rl y. Ac co rd in gl y, we reject Defendant’s appeal

of the co urt’s fa ilure to g rant a downward departure.

VI. Consecutive versus Concurrent Sentences under

G UIDELINES § 5G1.3

Defendant

was convicted on bo t h c ou nt s o f k no wi ng ly, intentiona

lly and witho

ut author ity distributi ng coc aine bas e (crack), in violation of 21 U.S.C . § 841(a )(1). At the time of his federal conviction, Defenda nt was serving an undischarged

term o f imprisonment stemming from the revocation

of his probation for several violations

of state law. G UIDELI

NES § 5G1.3 provides that a federal sentence

“may be imposed to run concurrently , partially concur rently, o r consecu tively to the prior

undischarged term of imprisonment to achieve a reasonable punishment for the ins tant o ffense.” Defendant

argues that the district

court ab used its discretion when it ordered that

Defendant’s 57 month sentencefor 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, 117 F.3d 940, 945 (6th Cir. 1997) (providing that the district court’s decision to impose a con secut ive or concurrent

sentence is reviewed for abuse of disc retion). We agree. ApplicationNo te 3 of G UIDELI NES § 5G1.3 states that under subsection (c) of that Guideline, the court “may impose
a sentence concurrently , partially concu rr ently, o r co ns ec ut iv el y” and that “[t]o achieve a reasonable punishment and avoid unwarranted dispar ity,” the court should consider
a variety of f

actors, as well as the factors set forth at 24 United Sta tes v. Clar k No. 03-5431

6 The se fac tor s inc lude the nature of the offense and hi story of t he defen dan t; the adequacy of the sentenc e a s a deterrent and as a punishment that

is j ust, protect s the public, an d rehab ilit ates the defen dant; the sent enci ng ra nge f or the off

ense ; an d poli cy s tat ement s of the Sente ncing C omm ission. 1 8 U .S.C . § 355 3(a). T hese factors also incl ude the type and leng th o f t he pr ior undi sch arg ed s ent ence ; t he t ime

s erved on the un dischar ged sent ence and th e ti me like ly t o be served before releas e; the fact that the pri or undis charged sen tence may hav e been imposed in stat e court rat her th an f eder al court, or a t a dif

fe ren t t ime before the same or

di ff erent federal court; and any ot her ci rcumstance relevant to the deter mination of an appropriate sentence f or the inst ant offense . G UIDEL I NES § 5G 1.3, a pplic ation n ote 3

. 18 U.S.C. § 3553(a). 6 G UIDELINES § 5G1.3, application note 3. Defendant argues that the district court’s imposition of a
co nsecu tive sentence was erroneous beca use it did not consider any

of these factors.

The court re lied exclus ively on Applic ation Note

6 to G UIDEL INE § 5G1.3, w

hich prov ides, in pa

rt:
If the defendant was on federal or state probation, parole,
or supervised release a

t the time of the instant offense, and has had such probation, parole, or super vised re lease revoked, the sente

nce for the in st ant offense should be imposed to runconsecutively to the ter m imposed for the violation of probat ion, parole, or super vised re lease in order to provide an incremental penalty for the violation of probation, parole, or supervised release.

G U IDEL INE § 5G1.3, application note 6. Arguably, a straightforward

application of Note 6 suggests that Defendan t’s sentenc e “should

” have r un conse cutively because he was on

state pro bation at t he ti me of the federal offense s, and his state probation subsequently wa s revoked. The court’s exclusive reliance on Application Note 6 was
errone ous, however, becau se the court failed to weigh any other factors – i.e. the factors set forth at 18 U.S.C. § 3553(a)

–relev ant to whether the federal sentence for an offens eNo. 03-5431 United Sta tes v. Clar k 25

7 Mand atory cons idera tion of the § 35 53( a) facto rs is cons istent with the Background comment arytha t appe ars at t he end of

the Appli cati on Notes t o G UI DEL I NE § 5G 1.3. It states:
Background : In a cas e in whic h a defendan t is subject to an undisch arged sent ence of impriso nme nt, the co urt gene rally has the authority to impose an i mpris onment sent ence onthe current offense to run c oncurrent ly or consecut ivel y to t he p rio r und ischa rged term. 18 U.S.C. § 3584(a). Exercise of th at autho rity, howe ver, is predi cated on the co urt’s consi derat ion of the factors l isted in 18 U.S.C. § 3553(a), inc luding a ny app licable guide lin es or policy stat ements issued by the Sentencing Commission.

G U ID EL IN E S § 5G1 .3, applicati on note, background (emphasis added ). See Cove rt , 117 F. 3d at 945 n.7 (“ The background to § 5G1.3(c) makes spec ific re fe re nc e t o 18 U. S.C. § 3 584, which r equires that the di stri ct court cons ider the facto rs ou tli ned in 18 U.S.C. § 3553(a), when should run concurrently

or consecutively

to anundischarged sentence.
The feder al s tatute that governs concurrent versus consecutive sentenc es clea rly states tha

t the dist r ict court

m ustco nsider 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 imprisonme

nt, the terms may run c oncurre n tly or consecutively.”

18 U.S.C

. § 3584(a). The statute then instructs that “ [t]h e court, in dete

rmining whether the terms imposed are t o be ordered to run concurrently or co ns ec ut iv el y, shall

consider, as to each o ffense for which a termof imprisonmentis being imposed, the factors set forth insection 3553(a).” Id. § 3584(b) (emphasis added); see also Covert , 117 F.3d at 945 (“A district court has the discretion to impose consecutive or conc urre nt sentences purs uant to § 5G1.3 , upon consideration of the fac tors listed in 18 U.S.C

. § 3553 (a) and the ap

plicable guideline s and polic

y stateme nts in effect at the time of sentencing. ”) (emphasis added; footnote omitted; citing United Stat es v . Coleman, 15 F.3d 610, 611-12 (6th Cir.1994)). 7 26 United Sta tes v. Clar k No. 03-5431

consi de ring whet

her t o impose a concurren t or conse cuti ve se nten ce on
a de fe ndan t w ho i s al rea dy s ubje ct to a n un dis char ged t erm o f imprisonment.”). The district court did not consider the § 3553(a)factor s, at least not as reflected by

the record. The transcript refer s only to the court’s concern that a concurr ent sen ten ce would preclude an in cr em en ta l p en al ty for hi s feder al offe nses. Ac co rd in gl y, we vacate the court’s ruling that De fenda nt’s sentence for

his fede ral offe nses are to run con secutive ly, so that the distri ct court

can rec onsider i

ts ruling in light o f the factors set forth at 18 U.S.C. § 3553(a) and at G UIDELI

NES § 5G1.3, application note 3. Cf. United Sta tes v. Becker, No. 99-1704, 2000 WL 245508, at *1 (6th Cir. Feb. 22, 2000) (unpublished; affirming imposition of consecutive sentence; districtcourt pr

operly had reli ed on Appl icatio n Note 6 and had considered the factors listed in § 3553(a)).

VII. Conclusion

For all the foregoing reasons, the Court AFFIRMS Defendant’s convicti ons, but REMANDS to the district court for consider

ation of w

hether D efenda

nt’s t erm of imprisonm e nton his federal conviction should run
concurr ently or conse cutively

to his st a te law convictions in li ghtof the factors set forth at 18 U.S.C. § 3553(a) and G UIDELI

NES § 5G1.3, application note 3.