RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0014p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DALEN KING,

Defendant-Appellant.

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Nos. 18-3416/3417

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:11-cr-00381-1—Solomon Oliver, Jr., District Judge.

Decided and Filed: February 1, 2019

Before: CLAY, McKEAGUE, and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Catherine J. Adinaro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S 

OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Dalen King faced the possibility of serving sixty-one 

months in prison for multiple drug-possession convictions and violations of supervised release. 

But after considering all the circumstances surrounding King’s offenses, the district judge 

ordered him to serve only thirty-six months in prison. The first thirty months were punishment 

for King’s drug convictions and the final six months for the violations of supervised release. The 

judge called the sentence “a blessing.” King argues that it was procedurally unreasonable. 

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Nos. 18-3416/3417 United States v. King Page 2

Specifically, King asserts that the district judge failed to sufficiently explain why he ordered that 

the six-month prison sentence for the supervised release violations run consecutively to, rather 

than concurrently with, the thirty-month prison sentence for the drug convictions. Finding no 

error in the adequacy of the district judge’s explanation, we AFFIRM.

I.

In 2011, King pleaded guilty to being a felon in possession of ammunition, in violation of 

18 U.S.C. § 922(g)(1). He received a sentence of forty-six months’ imprisonment followed by 

three years of supervised release. Supervision began on September 25, 2015. 

King struggled to comply with the terms of his supervision. Two years after it began, the 

U.S. Probation Department filed a notice with the district court detailing multiple supervised 

release violations, including unauthorized use of drugs and failure to comply with substance 

abuse treatment. King was also suspected of moving to a new residence without informing his 

probation officer, possessing a firearm, and selling cocaine from his new residence. Federal 

officers obtained a warrant to search King’s residence, which they executed in September 2017.

In the course of the search, officers discovered various contraband, including airsoft 

pistols, baggies of marijuana, scales, and a cell phone. They also found King—hiding in a closet 

with his hands down the back of his shorts. King’s behavior made officers suspicious that he 

was attempting to hide drugs on his person. King, however, repeatedly denied possessing 

anything illegal. Officers arrested King and transported him to the U.S. Marshal’s facility in the 

Akron Federal Courthouse. During their strip search of King at the federal facility, officers 

discovered a plastic baggie containing cocaine and cocaine base. 

A federal grand jury subsequently indicted King for three drug offenses: possessing with 

intent to distribute cocaine (Count 1) and possessing with intent to distribute cocaine base (Count 

2), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and possessing cocaine and cocaine base 

while a prison inmate1(Count 3), in violation of 18 U.S.C. § 1791(a)(2). King pleaded guilty to 

all charges. 

 

1This charge was based on the officers’ discovery of cocaine and cocaine base during 

their strip-search of King at the federal facility.
Nos. 18-3416/3417 United States v. King Page 3

King’s probation officer thereafter filed an updated supervised release violation report 

with the district court, adding new allegations based on King’s drug convictions and his failure to 

report a residence change. The report also reiterated the earlier report’s allegations that King 

failed to comply with substance abuse treatment and had tested positive for drug use. King later 

admitted to committing all alleged violations.

On April 20, 2018, the district court held a combined sentencing and supervised release 

violation hearing. At the hearing, the court addressed the recommended term of imprisonment 

for the drug convictions and the supervised release violations in turn. The U.S. Sentencing 

Guidelines recommended a thirty- to thirty-seven-month prison sentence for the drug convictions 

and a twenty-four- to thirty-month prison sentence for the supervised release violations. The 

applicable statute, however, placed the maximum term of imprisonment for the supervised 

release violations at twenty-four months. See 18 U.S.C. 3583(e)(3). The Government urged the 

court to impose a prison “sentence within the Guidelines range” for the drug convictions and a 

consecutive prison sentence of twenty-four months for the supervised release violations. King 

requested a total combined sentence falling below the Guidelines range. In his sentencing 

memorandum, but not at the hearing, King had also argued that the sentences should run 

concurrently. 

After considering the parties’ arguments, the court sentenced King to an aggregate term 

of thirty-six months in prison—a thirty-month term for King’s drug convictions and a 

consecutive six-month term for his supervised release violations. The court then asked counsel if 

there were any objections. Defense counsel replied, “No, your Honor.”

II.

King’s sole argument on appeal is that his sentence was procedurally unreasonable 

because the district court failed to explain its rationale for ordering that the sentences run 

consecutively. Normally, we review sentences “under a deferential abuse-of-discretion 

standard.” United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010) (quoting Gall v. United 

States, 552 U.S. 38, 41 (2007)). But “[w]here a party has failed to object to a procedural defect” 

at the sentencing hearing, “we review claims of procedural unreasonableness for plain error.” Id.
Nos. 18-3416/3417 United States v. King Page 4

(citing United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc)). As King 

concedes, he did not raise any objections at his hearing. Accordingly, we apply the plain-error 

standard of review. To satisfy that standard, King must show “(1) error (2) that was obvious or 

clear, (3) that affected [King’s] substantial rights and (4) that affected the fairness, integrity, or 

public reputation of the judicial proceedings.” Id. (citation omitted). This is a demanding 

standard. As we have observed, a “plain error” is an error that is “so plain that the trial judge 

was derelict in countenancing it.” Vonner, 516 F.3d at 386 (citation and alterations omitted). 

King fails to show that the district judge committed any error at all, let alone a “plain” one.

When imposing multiple sentences of imprisonment at the same time, a district judge has 

discretion to order that they run concurrently or consecutively. 18 U.S.C. § 3584(a). The 

exercise of that discretion, however, is predicated on the judge’s “consideration of the factors 

listed in 18 U.S.C. § 3553(a)”2and “any applicable Guidelines or policy statements issued by the 

Sentencing Commission.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011) (citing 

18 U.S.C. § 3584(b)). The policy statement applicable here, U.S.S.G. § 7B1.3(f), provides:

Any term of imprisonment imposed upon the revocation of . . . supervised release 

shall be ordered to be served consecutively to any sentence of imprisonment that 

the defendant is serving, whether or not the sentence of imprisonment being 

served resulted from the conduct that is the basis of the revocation of . . . 

supervised release.

This policy statement “is not binding on the district court”—indeed, construing it as binding 

“would be reversible error.” Johnson, 640 F.3d at 208 (citation omitted). Nonetheless, the 

district court “must consider § 7B1.3(f) when it is applicable . . . .” Id. (emphasis added) 

(citations omitted). Normally, evidence that the court considered § 7B1.3(f) (or any other policy 

statement) comes in the form of an “explicit reference” to the provision at the sentencing 

hearing. United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011) (citation omitted). “But a 

 

2The § 3553(a) factors include: the nature and circumstances of the offense and the 

history and characteristics of the defendant; the need to reflect the seriousness of the offense, 

deter criminal conduct, protect the public, and provide the defendant appropriate treatment; 

sentencing ranges and other considerations set forth by pertinent Guidelines or policy statements; 

avoiding unwarranted sentencing disparities; and providing restitution to victims. 18 U.S.C. 

§ 3553(a).
Nos. 18-3416/3417 United States v. King Page 5

sentencing court need not” make such an explicit reference “if there is some other evidence in 

the record that it considered the section” and the court makes “generally clear the rationale under 

which it has imposed the consecutive sentence . . . .” Id. at 335–36 (citations omitted). 

King asserts that the district judge erred by failing to explicitly mention the applicable 

policy statement3 and by inadequately explaining the reasons for imposing a consecutive 

sentence. Both arguments fail. First, while the district judge did not explicitly reference 

§ 7B1.3(f) during the sentencing proceedings, the record nonetheless demonstrates that he 

considered it. The judge indicated that he read the information presented in the supervised 

release violation report, which contained a lengthy explanation of the relevant statutory and 

Guidelines provisions, including U.S.S.G. § 7B1.3(f). Additionally, the judge responded to the 

Government’s argument that King should receive a consecutive sentence of twenty-four to thirty 

months for the supervised release violation with the clarification, “You think I should give him 

24 months on top of the Guideline range [for the drug convictions]?” (emphasis added). The 

Government affirmed, “Yes, your Honor. That’s what the Government is requesting.” Finally, 

after the district judge announced King’s sentence, he explained that the sentence for the 

supervised release violation was “recommended to go on top of” the Guidelines-range sentence 

for the underlying drug convictions. These statements all demonstrate that the district judge 

considered, without explicitly mentioning, the relevant Guidelines provisions and policy 

statements, and that he understood that he had discretion to run the sentences either 

consecutively or concurrently. 

Additionally, the record does not demonstrate any error in the adequacy of the district 

judge’s explanation for imposing a consecutive sentence. Before announcing King’s sentence, 

the district judge explained that he considered “the purposes of [§ 3553(a)], . . . the Guideline 

range, . . . the nature and circumstances of the . . . crime that [King] pled guilty to, [and his] 

 

3King argues that the district court was required to consider U.S.S.G. § 5G1.3(d), but 

“that provision does not apply to sentences imposed for violations of supervised release”; 

instead, it “applies to sentences for convictions that occur while a defendant is on supervised 

release, not a supervised release violation itself.” United States v. Cochrane, 702 F.3d 334, 347 

n.1 (6th Cir. 2012) (internal citations omitted). The relevant policy statement in this case is 

U.S.S.G. § 7B1.3(f). See id.; Johnson, 640 F.3d at 208 n.8.
Nos. 18-3416/3417 United States v. King Page 6

history and characteristics . . . .” The judge told King that he had a “significant history of drug 

possession and drug use,” which demonstrated that he was “not learning much in the drug area,” 

and emphasized that King needed “to come to a point where [he] [could] kind of get a handle on 

[his] life and . . . find a way to move forward in a positive way.” And although the judge looked 

favorably on the fact that King earned his GED while previously incarcerated and explained that 

King could not “be blamed” for his difficult upbringing, the judge nonetheless concluded that 

King had “to be held responsible for what” he had done. Finally, after announcing King’s terms 

of imprisonment, the district judge elaborated further. He told King:

So you’re going to have a total of 36 months total. And that’s a blessing. 

You may not know it. But, you—you were facing the possibility of having the 

two years of supervised release, which is recommended to go on top of your [30-

month sentence for the drug convictions] . . . . So you’ve tried to fashion it so it’s 

not as onerous as it could be.

. . . 

So the overall sentence is going to be 36 months custody . . . . I’m 

confident that this sentence meets the requirements of 3553(a) . . . .

. . . 

And so I feel comfortable that this sentence is enough. It’s sufficient. 

This explanation makes adequately clear that the judge believed an aggregate thirty-six-month 

sentence satisfied the goals of § 3553(a). And it demonstrates that the judge’s discussion of the 

length of King’s aggregate sentence was, permissibly, “intertwined” with the determination that 

the terms of imprisonment should run consecutively. Johnson, 640 F.3d at 208; see also United 

States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009) (“Requiring district courts to conduct a 

separate Section 3553(a) analysis for the concurrent or consecutive nature of the sentence would 

be repetitious and unwarranted, and we hold that district courts have no such distinct 

obligation.”). King fails to show that the lack of further explanation specific to the consecutive 

nature of his sentences was error at all, let alone a “plain” one.

Still, despite the district judge’s lengthy commentary, King suggests that the district 

judge’s explanation was plainly erroneous because the judge did not explicitly respond to a onesentence argument King raised in his sentencing memorandum. In his memorandum, King 

pointed out that the Sentencing Guidelines assigned him two additional criminal history points 
Nos. 18-3416/3417 United States v. King Page 7

for violating the law while on supervised release, which increased the sentencing range for his 

drug convictions. He asserted that, due to the additional criminal history points on his drug 

convictions, a concurrent term of imprisonment for the supervised release violation would satisfy 

the § 3553(a) factors. But the district judge’s failure to expressly respond to this brief and 

“conceptually simple” argument was not plain error. Rita v. United States, 551 U.S. 338, 358 

(2007). “[A] sentencing judge is not required to explicitly address every mitigating argument 

that a defendant makes, particularly when those arguments are raised only in passing.” United 

States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008) (citations omitted). This argument likewise 

fails to show any error in the judge’s explanation.

III.

For these reasons, we AFFIRM the district court’s sentence.