*

The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0156p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JEFFREY THOMAS HARMON,

Defendant-Appellant.

X

-

-

-

-

>

,

-

-

-

N

No. 09-5006

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 08-00092-001—Thomas W. Phillips, District Judge.

Submitted: April 30, 2010

Decided and Filed: June 2, 2010 

Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, Senior District Judge.*

_________________

COUNSEL

ON BRIEF: Paula R. Voss, FEDERAL DEFENDER SERVICES OF EASTERN, TN.,

INC., Knoxville, Tennessee, for Appellant. Cynthia F. Davidson, ASSISTANT

UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Thomas

Harmon appeals the district court’s decision ordering that his 46-month sentence for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) be served

1
No. 09-5006 United States v. Harmon Page 2

consecutively to an undischarged state sentence on an unrelated conviction for voluntary

manslaughter. For the reasons that follow, we affirm the district court’s decision.

I.

The Presentence Investigation Report (“PSR”), to which Harmon had no

objection, summarized the offense conduct relevant to Harmon’s state and federal

convictions. 

On April 7, 2006, Harmon pled guilty to voluntary manslaughter in the Criminal

Court of Clairborne County, Tennessee, and was sentenced to nine years imprisonment.

He was judicially released on June 2, 2007. On March 10, 2008, Harmon’s parole

officer received information that Harmon was outside his residence shooting a weapon.

Harmon was arrested and admitted that he had been shooting a rifle. On the following

day, the parole officer and law enforcement officers searched Harmon’s residence and

found three guns, more than 1,000 rounds of ammunition, and over an ounce of

marijuana. Harmon was subsequently indicted on and pled guilty to one count of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As a result of

the discovery of the firearms at issue in the federal case, Harmon’s state parole was

revoked on April 21, 2008. 

The PSR recounted Harmon’s personal circumstances. Harmon graduated from

high school and had been a certified welder in the past. He has been on disability since

1991 but reported a steady work history, including driving a truck and factory work,

before his disability. He suffered from a number of physical ailments, including the

amputation of his left leg due to diabetes, hypertension, chronic pain syndrome, cartilage

damage in his right knee, and ulcers on his arms and legs. He was also treated for

depression and had attempted to commit suicide in 2006 while in jail. Harmon smoked

marijuana daily and used up to $200 of crack cocaine a month until his arrest. He

indicated that he wished to enter a drug and alcohol treatment program while

incarcerated.
No. 09-5006 United States v. Harmon Page 3

Starting from a base offense level of 20, the PSR calculated an adjusted offense

level of 19 after adjustments for the number of firearms involved and Harmon’s

acceptance of responsibility. The PSR also calculated that Harmon was in criminal

history category IV. The applicable Guidelines range was 46 to 57 months. The parties

did not object to the PSR.

Harmon appeared with appointed counsel for sentencing on December 16, 2008.

The district court stated that “the sentence of this court shall be made pursuant to the

factors set forth in [18 U.S.C. § 3553(a)], treating the sentencing commission guidelines

as advisory only.” Harmon’s counsel then requested that his sentence run concurrently

with the state sentence. She first noted that Harmon was not in great health and suffered

from diabetes and depression. She then stated that Harmon’s state sentence ran until

2015 and his “first parole eligibility would be coming up probably in the spring of next

year [with] no guarantee or even expectation I don’t think that he is going to make parole

the first time around.” She then pointed out that Harmon was not in a work training

program while in state custody and was scheduled to enter a nine-month drug and

alcohol treatment program with a component on anger management. She argued that

state incarceration provided Harmon with medical care and drug and alcohol treatment

and that “he is receiving most of what he needs in the state system.” She asked the

district court to order that Harmon’s sentence run either concurrently or partially

concurrently with his state sentence and contended that if Harmon made parole, “he

would be paroled directly to his federal sentence at that time.” Defense counsel

concluded by remarking that Harmon’s drug treatment could be provided during his

supervised release. The government requested that Harmon be sentenced within the

Guidelines range and did not take a position on the issue of concurrent or consecutive

sentencing.

The district court first addressed Harmon’s argument for a concurrent sentence.

The district court ordered that Harmon’s sentence be served consecutively to the state

sentence, stating:
No. 09-5006 United States v. Harmon Page 4

Well, I am not at all sure why the state placed Mr. Harmon on judicial

release. It appears to me that it’s inappropriate in this case to run the

sentences concurrent. Ms. Voss, you can always seek to get the state of

Tennessee to run part of its sentence concurrent with the federal

sentence. In this case I don’t believe, I just don’t have the confidence in

what the state is going to do that would allow me to allow these

sentences to run concurrently with the state of Tennessee sentence.

It then pronounced a 46-month sentence, at the bottom of the applicable Guidelines

range, having “considered the nature and circumstances of the offense, the history and

characteristics of the defendant and the advisory guideline range, as well as the other

factors listed in [18 U.S.C. § 3553(a)].”

Before explaining its reasoning, the district court asked counsel for any

“objection to the sentence as previously read and stated by [the] court,” and defense

counsel responded, “Only as to the concurrency, Your Honor.” Neither the court nor

counsel addressed any further objection and the district court proceeded to explain that

it was concerned by Harmon’s possession of multiple firearms and ammunition,

especially in light of his voluntary manslaughter conviction. The court was troubled by

Harmon’s continued use of firearms, significant history of substance abuse, and mental

health issues. As a factor in Harmon’s favor, the court pointed to Harmon’s high school

degree and certification as a welder and found that Harmon could enhance his skills

while in custody. These factors led the court to find that a 46-month sentence was

“sufficient but not greater than necessary, to reflect the seriousness of the offense, and,

importantly, to protect the public from further crimes of this defendant.” At the end of

the hearing, the court asked counsel if anything further needed to be taken up with the

court, and both responded negatively.

Harmon timely appealed, arguing that the district court’s failure to consider the

factors set forth in U.S.S.G. § 5G1.3 rendered his sentence procedurally unsound and

that the district court failed to fashion an incremental punishment that was sufficient but

not greater than necessary to meet the mandate of 18 U.S.C. § 3553(a). 
No. 09-5006 United States v. Harmon Page 5

II.

We review a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38,

51 (2007). Because defense counsel did not object to the district court’s purported

procedural error in failing to consider U.S.S.G. § 5G1.3 with enough specificity, a plain

error standard of review applies. However, a reasonableness standard of review applies

to Harmon’s substantive argument because counsel clearly argued to the district court

that he deserved a concurrent sentence based upon his health, parole status, and

eligibility for drug and mental health treatment.

“A party ‘must object with that reasonable degree of specificity which would

have adequately apprised the trial court of the true basis for his objection.’” United

States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004) (quoting United States v. LeBlanc,

612 F.2d 1012, 1014 (6th Cir. 1980) (citations omitted)). “A specific objection provides

the district court with an opportunity to address the error in the first instance and allows

this court to engage in more meaningful review.” Id. We require district courts to “ask

the parties whether they have any objections to the sentence . . . that have not previously

been raised.” Id. at 872. 

The so-called Bostic question is “especially pertinent with respect to objections

that concern the adequacy of the court’s explanation precisely because such objections

cannot be made until after the court states its reasoning in the course of sentencing the

defendant.” United States v. Simmons, 587 F.3d 348, 354 (6th Cir. 2009). In Simmons,

defense counsel argued at sentencing that the defendant deserved a downward variance

because of the Guidelines’ disparate treatment of crack and powder cocaine crimes. Id.

at 355. In response to the Bostic question, counsel objected “just for the record for the

procedural, substantive aspects.” Id. (quoting counsel). On appeal, the defendant argued

that the district court failed to address his argument for a variance. We held that

counsel’s failure to object specifically that the sentencing judge did not address her

policy argument required the application of plain-error review. Id. at 358. Although

counsel responded to the Bostic question in the affirmative, she did so “at such a high

degree of generality that the district court ha[d] no opportunity to correct its purported
No. 09-5006 United States v. Harmon Page 6

error and the court of appeals ha[d] been deprived of a more detailed record to review.”

Id. Simmons emphasized that allowing counsel to omit any explanation of her objections

would render the Bostic question “a meaningless formality whereby certain magic words

are uttered and any new claim may be raised on appeal without consequence.” Id. at

357; see also United States v. Martin, No. 08-6426, 2010 U.S. App. LEXIS 7058, at

*3–4 (6th Cir. April 6, 2010) (applying a plain error standard of review where the

defendant lodged no objections to the district court’s sentencing procedures); United

States v. Sorrell, No. 08-1740, 2010 U.S. App. LEXIS 3520, at *4 (6th Cir. Feb. 22,

2010) (applying a plain error standard of review where the defendant failed to challenge

the adequacy of the sentencing explanation before the district court); United States v.

Dumas, No. 07-1689, 2010 U.S. App. LEXIS 713, at *10–11 (6th Cir. Jan. 12, 2010)

(finding the defendant’s objection so vague as to warrant plain error review).

In this case, the district court gave counsel the opportunity to lodge objections

twice—once after it ruled that Harmon’s sentence should be served consecutively and

announced the sentence, and again after explaining its choice of a 46-month sentence.

Taking advantage of her first opportunity to object, defense counsel said, “Only as to the

concurrency, Your Honor.” Counsel did not mention U.S.S.G. § 5G1.3, much less the

district court’s purported failure to apply that Guideline or to consider the factors listed

in 18 U.S.C. § 3553(a) with specific reference to the issue of concurrent or consecutive

sentencing. Counsel gave the district court no opportunity to supplement the record with

a more detailed explanation of its reasons for imposing a consecutive sentence. Indeed,

the apparent meaning of counsel’s reference to concurrency was that counsel was

reiterating her substantive objection, not making a procedural objection. Counsel also

failed to object at all at the end of the hearing when addressed by the court. Because

counsel’s response to the Bostic question was too vague to give the district court an

opportunity to correct its purported procedural errors, we conclude that a plain-error

standard of review applies to Harmon’s procedural reasonableness arguments. Simmons,

587 F.3d at 358. Under this standard, a defendant must demonstrate that the district

court’s error was obvious or clear, affected his substantial rights, and affected the
No. 09-5006 United States v. Harmon Page 7

fairness, integrity, or public reputation of the judicial proceedings. See United States v.

Houston, 529 F.3d 743, 750 (6th Cir. 2008). 

However, Simmons explicitly held that the normal reasonableness standard

applies to a party’s substantive arguments where counsel clearly made these arguments

to the sentencing court. Simmons, 587 F.3d at 355. A procedurally reasonable sentence

is reviewed for substantive reasonableness under the abuse-of-discretion standard. Gall,

552 U.S. at 51. Here, counsel focused the entirety of her argument on factors warranting

a concurrent sentence and was not required to repeat her previously made objections.

Simmons, 587 F.3d at 355.

III.

A sentence is procedurally inadequate if the district court fails to calculate

properly the Guidelines range, treats the Guidelines as mandatory, fails to consider the

section 3553(a) factors, selects the sentence based upon clearly erroneous facts, or fails

to adequately explain the chosen sentence. See Gall, 552 U.S. at 51; Houston, 529 F.3d

at 753. A district court must state its reasons for imposing a particular sentence. See

United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009) (per curiam). Even so the

district court need not “give the reasons for rejecting any and all arguments by the

parties for alternative sentences.” United States v. Vonner, 516 F.3d 382, 387 (6th Cir.

2008) (en banc). 

Pursuant to 18 U.S.C. § 3584, “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). District courts “shall

consider, as to each offense for which a term of imprisonment is being imposed, the

factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). District courts must consider

the advisory recommendations of the Guidelines and any pertinent policy statements

issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(4) and (5). The Guidelines

state that the sentencing judge should run the sentence “concurrently, partially

concurrently, or consecutively to the prior undischarged term of imprisonment to achieve

a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c) (2007). The
No. 09-5006 United States v. Harmon Page 8

application notes to this subsection provide that the following factors should be

considered “to achieve a reasonable incremental punishment for the instant offense and

avoid unwarranted disparity”:

(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C.

§ 3553(a));

(ii) the type (e.g., determinate, indeterminate/parolable) and length

of the prior undischarged sentence;

(iii) the time served on the undischarged sentence and the time likely

to be served before release;

(iv) 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

(v) any other circumstance relevant to the determination of an

appropriate sentence for the instant offense.

U.S.S.G. § 5G1.3 cmt. n.3(A) (2007). 

Moreover, where, as in the present case, the undischarged term of imprisonment

resulted from the revocation of the defendant’s federal or state probation, parole, or

supervised release at the time of the instant offense, “the Commission recommends that

the sentence for the instant offense be imposed consecutively to the sentence imposed

for the revocation.” U.S.S.G. § 5G1.3 cmt. n.3(C) (2007).

Generally, “[a] district court’s decision to impose a consecutive or concurrent

sentence under § 5G1.3 of the Sentencing Guidelines is reviewed for abuse of

discretion.” United States v. Campbell, 309 F.3d 928, 930 (6th Cir. 2002). A district

court must make “generally clear the rationale under which it has imposed the

consecutive sentence and seek[] to ensure an appropriate incremental penalty for the

instant offense.” United States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009) (internal

quotation marks omitted). Although “the record on appeal should show that the district

court turned its attention to” U.S.S.G. § 5G1.3, id. at 998 (citation omitted), it need not

“explicitly reference the § 5G1.3 considerations” if the record shows that it considered

this Guideline, United States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009). This court has

upheld the imposition of a consecutive sentence where the “totality of the record ma[de]

clear that the district court properly turned its attention to § 5G1.3(c) and the relevant
No. 09-5006 United States v. Harmon Page 9

commentary before imposing a consecutive sentence.” United States v. Covert, 117 F.3d

940, 946 (6th Cir. 1997). It has also upheld a consecutive sentence where the district

court made a “brief reference to the statutory and Guidelines factors” although the

explanation was “somewhat cursory.” United States v. Watford, 468 F.3d 891, 915–17

(6th Cir. 2006).

In this case, the district court (and counsel) did not mention U.S.S.G. § 5G1.3(c)

by name, but the totality of the record shows that the court considered each of the factors

contained in application note 3(A) and thus committed no error, much less one that was

obvious and clear. The district court was aware of the length and parolability of

Harmon’s undischarged state sentence. U.S.S.G. § 5G1.3(c) cmt. n.3(A)(ii) and (iv)

(2007). It expressed concern that it could not determine how long Harmon would

actually serve his state sentence. U.S.S.G. § 5G1.3(c) cmt. n.3(A)(iii) (2007). These

considerations led it to deny Harmon’s request for a concurrent federal sentence.

Harmon argues that the district court failed to apply 18 U.S.C. § 3553(a) to the

issue of concurrent or consecutive sentencing as required by application note 3(A)(i),

but, again, the record belies this contention. The district court stated clearly that its

sentence “shall be made pursuant to the factors set forth in [18 U.S.C. § 3553(a)],” and

found that “a sentence of 46 months is sufficient, but not greater than necessary, to

comply with the purposes of § 3553(a).” The district court’s determination of the length

of Harmon’s sentence and its decision to impose the sentence consecutively to the

undischarged state sentence were intertwined. The court selected a 46-month sentence

on the basis of Harmon’s criminal history and unlawful use of a firearm despite being

convicted of voluntary manslaughter in state court, the need to provide adequate

deterrence, the need to protect the public, and the likelihood that a term of imprisonment

would provide Harmon with drug abuse and medical treatment. The record discloses

that the district court’s explanation for Harmon’s 46-month sentence depended, in part,

upon its prior denial of his request for a concurrent sentence because it could not

determine how long he would serve in state prison. The district court was not required
No. 09-5006 United States v. Harmon Page 10

to say more and it committed no error, much less one so obvious or clear to warrant

reversal for plain error.

IV.

“[T]he district court’s task is to impose a sentence sufficient, but not greater than

necessary, to comply with the purposes of the statutory sentencing scheme.” United

States v. Presley, 547 F.3d 625, 630–31 (6th Cir. 2008) (internal quotation omitted). “A

sentence may be considered substantively unreasonable when the district court selects

a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent

factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A withinGuidelines sentence is entitled to a rebuttable presumption of reasonableness. United

States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

Harmon argues that because the district court did not recognize that the federal

felon-in-possession charge and the underlying state conviction for involuntary

manslaughter were “intrinsically entwined,” it failed to fashion an incremental,

overlapping sentence that served the purposes of 18 U.S.C. § 3553(a). However,

Harmon has failed to rebut the presumption of reasonableness given to his sentence at

the bottom of the applicable Guidelines range. The district court considered each of the

factors set forth in section 3553(a) in fashioning its sentence. Also, Harmon was unable

to show the district court how long he was actually likely to serve on his undischarged

state sentence and the court properly exercised its discretion in imposing a 46-month

consecutive sentence that was sufficient, but not greater than necessary, to address the

seriousness of Harmon’s federal crime, his criminal history, and balance of the section

3553(a) factors. Finally, the federal felon-in-possession charge punished offense

conduct unrelated to the voluntary manslaughter conviction insofar as the incidents were

separated in time and involved different victims. The district court did not act arbitrarily

nor did it give undue weight to any particular factor in determining that a 46-month

consecutive sentence was adequate to address Harmon’s continued use of firearms and

prior criminal history.
No. 09-5006 United States v. Harmon Page 11

V.

For the foregoing reasons, we affirm the district court’s decision to order that

Harmon serve his federal sentence consecutively to his state sentence.