United States Court of Appeals

For the Eighth Circuit

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No. 19-3597

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Tyrone James Nelson,

lllllllllllllllllllllDefendant - Appellant.

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No. 19-3686

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Robert Dontell Sykes,

lllllllllllllllllllllDefendant - Appellant.

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Appeals from United States District Court 

for the District of Minnesota

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 Submitted: September 21, 2020

Filed: December 16, 2020

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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges. 

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COLLOTON, Circuit Judge.

Tyrone Nelson and Robert Sykes pleaded guilty to conspiring to distribute

heroin. Both men were serving state sentences at the time of their convictions. The

district court1 sentenced Nelson to 77 months’ imprisonment and Sykes to 60 months’

imprisonment. The court provided that each federal sentence would run partially

concurrent with the undischarged term of the respective defendant’s state sentences.

Nelson and Sykes appeal their sentences, and we affirm.

I.

Nelson and Sykes conspired to distribute heroin in Minnesota. Nelson made

several distributions to a government informant before he was arrested on state

charges in May 2018. Sykes continued to distribute heroin after Nelson’s arrest. He

was arrested on state drug charges in June 2018. In February 2019, a federal grand

jury charged Nelson and Sykes with committing the federal drug conspiracy offense.

Nelson pleaded guilty to a charge of conspiracy to distribute 100 grams or more

of heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. The government agreed to

recommend a sentence fully concurrent to his undischarged terms of imprisonment

in Minnesota. Sykes pleaded guilty to the same charge. The government also agreed

1The Honorable Eric C. Tostrud, United States District Judge for the District

of Minnesota.

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to recommend a federal sentence that would be concurrent to an undischarged term

that Sykes was serving in Wisconsin.

The district court did not accept the joint recommendations on concurrent

sentencing. The court sentenced Nelson to 77 months of imprisonment, but ordered

20 months to run concurrently with the 31 months remaining on his undischarged

Minnesota sentences for assault, unlawful possession of a firearm, and drug

possession. On December 4, 2019, the court sentenced Sykes to 60 months of

imprisonment, to commence on the earlier of March 11, 2021, or his release from the

undischarged Wisconsin sentence. Both federal sentences were within the applicable

advisory guideline range.

II.

A.

Nelson first argues that the district court incorrectly applied USSG § 5G1.3,

which guides the imposition of a sentence on a defendant who is subject to an

undischarged state term of imprisonment. Nelson complains that the court erred in

two ways: by failing to adjust his sentence downward to account for his prior

imprisonment for a state conviction, and by failing to make his sentence fully

concurrent with his undischarged terms of imprisonment for three state convictions. 

We review the district court’s interpretation and application of the guidelines de novo. 

United States v. Bauer, 626 F.3d 406, 408 (8th Cir. 2010). 

Section 5G1.3 provides guidance that varies depending on whether a

defendant’s time served in state custody is, or will be, for conduct that is “relevant”

to the instant federal offense. With respect to a drug trafficking conspiracy, relevant

conduct includes certain acts or omissions in furtherance of the jointly undertaken

activity. USSG § 1B1.3(a)(1)(B). Nelson’s possession of heroin that resulted in one

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of his state convictions was relevant conduct with respect to the federal conspiracy

to distribute heroin.

“For time already spent in custody for solely relevant conduct” to the instant

federal offense, the district court must adjust a sentence downward to account for

time served, unless the Bureau of Prisons would otherwise credit that time to the

defendant. United States v. Winnick, 954 F.3d 1103, 1105 (8th Cir. 2020); see USSG

§ 5G1.3(b)(1). Where the remaining undischarged term of state imprisonment is for

relevant conduct, the court also must impose the federal sentence “to run concurrently

to the remainder of the undischarged term.” USSG § 5G1.3(b)(2). But where an

undischarged term is based on conduct that is not relevant conduct to the federal

offense, the federal sentence “may be imposed to run concurrently, partially

concurrently, or consecutively” to the undischarged term “to achieve a reasonable

punishment for the instant offense.” Id. § 5G1.3(d).

In “complex situations,” where a defendant is “subject to multiple undischarged

terms of imprisonment that seemingly call for the application of different rules,” the

court “may exercise its discretion in accordance with subsection (d) to fashion a

sentence of appropriate length and structure it to run in any appropriate manner to

achieve a reasonable punishment.” USSG § 5G1.3, comment. (n.4(D)); see Bauer,

626 F.3d at 408-09. Thus, where a defendant will serve time in state custody for

convictions that were based on both relevant and non-relevant conduct, the district

court may choose to impose a sentence that runs concurrently, partially concurrently,

or consecutively to the undischarged term. USSG § 5G1.3(d); Winnick, 954 F.3d at

1105. 

At the time of his federal sentencing, Nelson was serving concurrent terms of

imprisonment for three state convictions. In 2018, he was convicted of first-degree

assault and unlawful possession of a firearm as a convicted felon in Hennepin

County, Minnesota. On July 16, 2018, he was sentenced to serve concurrent terms

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of imprisonment of 75 months for the assault charge and 60 months for the firearm

possession charge. After his 2018 arrest for heroin trafficking, Nelson was convicted

of heroin possession in Minnesota state court. He was sentenced on August 9, 2018,

to serve a 30-month state term of imprisonment for the drug offense (less 107 days’

credit for time served); the drug sentence was to run concurrent with his state

sentences for assault and firearm possession. 

When Nelson was sentenced in this federal case, he had about 31 months

remaining on his concurrent state sentences, with about 11 months to go on his drug

possession sentence. Stated differently, he had served about 19 months of his 30-

month concurrent term for drug possession.

Nelson argues that the court was required to adjust his sentence under USSG

§ 5G1.3(b) based on time served in state custody for drug possession, because that

conviction was for relevant conduct to the federal drug trafficking conspiracy. 

Nelson thus contends that the court should have credited 19 months of time served

against his federal sentence. On his view, the resulting federal sentence should have

been 58 months (rather than 77 months) with only 11 months running concurrent to

the state sentences (rather than 20 months). Nelson asserts that it was “impossible”

for the district court to order a concurrent sentence of 20 months when only 11

months remained in the term for his state drug offense.

We reject these contentions because Nelson’s service of 19 months in state

custody was not attributable solely to an offense that was relevant conduct to the

federal drug conspiracy. Nelson was also serving concurrent sentences for offenses

that involved non-relevant conduct—assault and firearm possession. A sentence for

solely relevant conduct would be governed by § 5G1.3(b), but a term for non-relevant

conduct or a mixture of relevant and non-relevant conduct is covered by § 5G1.3(d). 

Because § 5G1.3(b) did not apply, Nelson was not entitled to an adjustment of 19

months under that provision. And because Nelson was “subject to multiple

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undischarged terms of imprisonment that seemingly call for the application of

different rules,” this was a “complex” case in which the court had discretion to

impose a sentence concurrently, partially concurrently, or consecutively. USSG

§ 5G1.3, comment. (n.4(D)); see Bauer, 626 F.3d at 408-09. Accordingly, the district

court did not misapply § 5G1.3 and was not required to reduce Nelson’s sentence or

to impose a fully concurrent sentence.

Nelson argues that this court’s decision in Winnick is indistinguishable and

requires a remand. In Winnick, however, the defendant had served time in state

custody for solely relevant conduct, yet the record did not show that the district court

had properly adjusted his sentence under § 5G1.3(b) for that time served. 954 F.3d

at 1105-06. This court thus concluded that a remand was necessary for the district

court to clarify its reasoning. Id. at 1106. By contrast, Nelson did not serve any time

in state custody that was solely for relevant conduct in the federal case. All of the

time that he served in state custody was for a mixture of relevant and non-relevant

conduct, so the district court had discretion whether to give credit for that time when

imposing the federal sentence. See id. at 1105. Because Nelson had a total of 31

months left to serve on his concurrent state sentences, the district court’s decision to

make 20 months of his federal sentence concurrent was neither “impossible” nor

erroneous. 

Nelson also argues that the district court committed a significant procedural

error by failing to explain adequately its decision on concurrent sentencing. The

court, however, expressed “concern about ordering that his federal sentence run

concurrently to his state assault conviction that is separate from his offense conduct

here.” The court then heard from both parties about their concurrency

recommendations, including argument from Nelson that § 5G1.3(d) should apply to

his state sentences that were based on non-relevant conduct. Although the court did

not specifically address how it applied § 5G1.3 to Nelson’s prior sentences, a partially

concurrent sentence was within the court’s discretion in a “complex” situation under

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§ 5G1.3(d). The district court addressed at length the sentencing factors under 18

U.S.C. § 3553(a), and the reasons given were sufficient to explain the court’s exercise

of discretion on the question of concurrent sentencing. 

B.

Nelson also contends that the district court imposed a substantively

unreasonable sentence. He asserts that the court did not give sufficient weight to his

remorse and acceptance of responsibility, his history of addiction and financial

desperation, his ability to remain employed and sober, and the need to avoid

unwarranted sentencing disparities. We apply a deferential abuse-of-discretion

standard of review, Gall v. United States, 552 U.S. 38, 51 (2007), and presume that

a sentence within the advisory guideline range is reasonable. United States v. Outlaw,

946 F.3d 1015, 1020 (8th Cir. 2020); see Rita v. United States, 551 U.S. 338, 347

(2007). “A sentencing court abuses its discretion if it fails to consider a relevant

factor that should have received significant weight, gives significant weight to an

improper or irrelevant factor, or considers only the appropriate factors but commits

a clear error of judgment in weighing those factors.” United States v. Watson, 480

F.3d 1175, 1177 (8th Cir. 2007). 

We conclude that the district court did not abuse its discretion. Nelson’s

advisory guideline range was 77 to 96 months, and the court imposed a sentence at

the bottom of the range. The court addressed most of the circumstances on which

Nelson now relies, and we presume that the court considered other points on which

it heard argument. United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009). The

court also discussed Nelson’s need for care and treatment, his long history of criminal

activity, and the seriousness of his conduct in trafficking heroin to a “marginalized

and . . . vulnerable population.” The sentencing court has wide latitude to weigh the

§ 3553(a) factors in each case and to assign some factors greater weight than others. 

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United States v. Johnson, 916 F.3d 701, 703 (8th Cir. 2019). There was no abuse of

discretion in selecting a sentence at the bottom of the advisory range.

III. 

In his appeal, Sykes argues that the district court abused its discretion by

making his federal sentence of 60 months’ imprisonment partially concurrent, rather

than fully concurrent, to his undischarged term of state custody. He does not

challenge the length of his sentence, but claims that the concurrency decision is

substantively unreasonable. If a defendant is “already subject to an undischarged

term of imprisonment,” then the district court may choose whether to impose a

sentence “concurrently or consecutively,” and must consider the factors under 18

U.S.C. § 3553(a) in making this decision. 18 U.S.C. § 3584(a)-(b). We review a

district court’s decision to impose a consecutive or concurrent sentence for

reasonableness, United States v. Winston, 456 F.3d 861, 867 (8th Cir. 2006), and we

apply the same deferential abuse-of-discretion standard that governs a reasonableness

determination under § 3553(a). See United States v. Baskin, 878 F.3d 1106, 1108

(8th Cir. 2018).

In 1994, Sykes was convicted of armed robbery and second-degree reckless

homicide in Wisconsin. After those convictions were vacated in 2015, he pleaded

guilty to armed robbery and two lesser counts of reckless homicide. The state court

re-sentenced Sykes to ten years of imprisonment on each homicide count, which had

been fully served since 1994. The state court also imposed a sentence of seventeen

years’ imprisonment for the armed robbery, but stayed execution of the sentence and

placed Sykes on probation for a term of nine years. Sykes twice violated the

conditions of probation and served additional prison terms in 2017 and 2018. He was

last released from state custody on March 29, 2018. Sykes was arrested in Minnesota

in June 2018 for drug possession. While awaiting trial in Minnesota, he was returned

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to Wisconsin for violating his probation yet again. He is next eligible for parole in

Wisconsin on March 11, 2021.

The court declined to run the federal sentence concurrent with the remaining

state sentence. Instead, the court provided in December 2019 that the federal

sentence would commence on the earlier of March 11, 2021, or Sykes’s release from

the undischarged Wisconsin sentence. Sykes argues that the district court did not

adequately assess or evaluate certain factors that he raised in favor of a fully

concurrent sentence. He cites his poor physical and mental health, the time he spent

in Minnesota custody before his federal indictment, the indeterminate nature of his

Wisconsin sentence, and the fact that a statutory minimum sentence exceeded the

otherwise-applicable advisory guideline range.

We conclude that the court did not abuse its discretion. The court explained

that in making the concurrency determination, it had considered Sykes’s “difficult”

upbringing, his “significant addiction and health issues,” and the difficulty of

calculating a “definitive concurrency determination” because of Sykes’s uncertain

release date in Wisconsin. But the court also weighed the seriousness of Sykes’s

offense conduct, which occurred shortly after he was released from prison, and the

lack of “respect for the law or a genuine recognition of . . . pain and trauma” that his

conduct displayed. The court considered Sykes’s arguments for running his federal

sentence entirely concurrent to the remaining term in Wisconsin, but properly

recognized “the absence of any connection” between the offense conduct underlying

the Wisconsin conviction and the drug trafficking conspiracy for which Sykes was

sentenced in federal court. There were reasonable grounds for the court to conclude

that the federal term of imprisonment should not commence until Sykes served

additional time in state custody. The court’s choice of a partially concurrent sentence

was within the permissible range of discretion.

* * *

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The judgments of the district court are affirmed.

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