*

The Honorable Jack Zouhary, 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: 09a0173p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

LEE HENRY BERRY,

 Defendant-Appellant.

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No. 08-1048

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 05-20048-001—Thomas L. Ludington, District Judge.

Argued: March 12, 2009

Decided and Filed: May 14, 2009 

Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.*

_________________

COUNSEL

ARGUED: Robert J. Dunn, LAW OFFICE, Bay City, Michigan, for Appellant. Daniel

R. Hurley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for

Appellee. ON BRIEF: Shawn M. Sutton, LAW OFFICE, Bay City, Michigan, for

Appellant. Daniel R. Hurley, ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellee. 

_________________

OPINION

_________________

JACK ZOUHARY, District Judge. Defendant Lee Henry Berry appeals his

convictions and sentencing in the district court. A jury convicted Berry on three counts

of possession with intent to distribute controlled substances and on one count of being

1
No. 08-1048 United States v. Berry Page 2

a felon in possession of a firearm. Prior to trial, Berry moved to suppress some of the

evidence against him, arguing the evidence was seized pursuant to an invalid search

warrant. The district court denied the motion. A jury convicted Berry, and the district

court sentenced him to 360 months of imprisonment, to run consecutive to his term of

imprisonment for violating the terms of his probation related to a state offense. Berry

argues on appeal that the district court committed reversible errors when it denied his

motion to suppress and when it sentenced him. For the reasons set forth below, we

AFFIRM. 

BACKGROUND

In 2005, the Bay Area Narcotics Enforcement Team (BAYANET), a narcotics

task force in the Saginaw and Bay City, Michigan area, was investigating an alleged

drug operation involving Melvin Hoskins. Hoskins lived at 1226 Asbury Court,

Saginaw Township, Michigan. Sergeant Greg Potts received a tip from a confidential

informant that one Lee Henry Berry was living at 1228 Asbury Court, the same duplex

as Hoskins. Sergeant Potts and other officers were familiar with Berry because of his

prior criminal history, including a 2000 drug trafficking conviction for which he was

serving lifetime probation. The tip that Berry was living at the Saginaw Township

address was significant because Berry’s lifetime probation required him to immediately

notify his probation officer of any change of address, yet Berry last told his probation

officer he lived in Bay City. 

After Berry was observed at 1228 Asbury Court, Sergeant Potts reviewed records

of the Michigan Secretary of State and discovered Berry had listed the Asbury Court

address as his residence on his driver’s license, as well as on several vehicle titles.

Another task force officer, Wayne Stockmeyer, interviewed the woman who owned the

Asbury Court property, Sugi Ponnampalam. Ponnampalam said a man named “Alvin

King” rented the property, but identified Berry from a photo as the man who rented and

lived at 1228 Asbury Court. She said Berry paid monthly rent of $675 in cash and had

lived there for three years. 
No. 08-1048 United States v. Berry Page 3

Law enforcement determined it would attempt to arrest Berry at Asbury Court

for violating the terms of his probation by failing to register the residence with his

probation officer. At approximately 10:00 p.m. on April 29, 2005, task force officers

saw Berry alone, driving a Cadillac into the driveway at 1228 Asbury Court. The

officers arrested him as he exited the car and then searched the car incident to the arrest.

On the floor of the car, immediately in front of the driver’s seat, they found a number of

rocks of suspected crack cocaine in plastic sandwich bags. Officers field-tested the

drugs and confirmed the presence of cocaine.

The officers then decided to obtain a search warrant for 1228 Asbury Court.

Sergeant Potts swore out the warrant affidavit. In the affidavit, Potts sought permission

to search the Asbury Court residence for evidence of two crimes: (1) evidence of drugs;

and (2) evidence establishing that Berry lived at 1228 Asbury Court in violation of the

terms of his probation. In support of the requested search, Paragraph 4 of the affidavit

contained the following information:

It has been my personal experience and I have been so informed

by many other Police Officers whom I know to be truthful . . . that

persons present in the residence or on the property (or entering or leaving

the residence or property) where a search warrant for controlled

substances is being executed oftentimes conceal controlled substances on

their persons (this can be because they are selling or buying the

substances or in an attempt to conceal the substances from the Police

search); that vehicle’s [sic] parked on the premise of places where

controlled substances are found or sold oftentimes contain controlled

substances . . . . It has further been my experience that people dealing

and using controlled substances will oftentimes use the motor vehicles

to store and transport controlled substances . . . . Furthermore, I know

from my training and experience that people who sell drugs often possess

firearms for the purpose of protecting themselves and the drugs from

thefts or searches.

I have previously been told by a confidential informant (CI) that

Lee Henry Berry was living at the residence described in paragraph 3

above. Additionally, the CI pointed the residence out to me. I have also

checked the Secretary of State computer via the LEIN system and found

that Lee Henry Berry’s operator’s license address is listed as 1228

Asbury Ct, Saginaw, Michigan, which is also the address listed for

various vehicle [sic] which he is listed as owning. Furthermore, Officer
No. 08-1048 United States v. Berry Page 4

Wayne Stockmeyer of the Bay City Police department contacted Sugi

Ponnampalam, the owner of the premises described in paragraph 3

above. She stated that she is the owner of 1228 Asbury Ct, and that she

is currently renting the residence to an individual she knows as Alvin

King, an older black male, and he pays $675 per month cash for renting

the unit. Officer Stockmeyer showed Sugi Ponnampalam a photograph

of Lee Henry Berry, and she identified the photograph as being the

person she knows as Alvin King, the renter of the duplex. She said that

she has owned the dwelling for about 3 years and that the person she

knows as Alvin King has lived there the entire time.

I know that Lee Henry Berry was convicted of delivery or

attempted possession with intent to deliver less than 50 grams of a

mixture containing cocaine approximately 2/23/2000, before Honorable

William J. Caprathe, Bay County Circuit Judge, and that he was

sentence[d] to lifetime probation. I have talked with his probation

office[r], Steve Marshall, who informed me that according to the

Probation Department’s records, Lee Henry Berry lists his residence as

being in the City of Bay City. I also know by having seen a listing of the

“special conditions” of Lee Berry’s probation that he is required to

“Notify the probation officer immediately of any change of address or

employment status.” Steve Marshall told me that Lee Berry has never

reported that he lives in Saginaw Township.

During the evening hours of April 29, 2005, Lee Henry Berry was

arrested by Officer Stockmeyer and officers from the Bay Area Narcotics

Enforcement Team (BAYANET) for violating probation. The arrest took

place outside of the residence described in paragraph 3 above after he

was seen arriving in a car. Officer Stockmeyer told me that Lee Berry

was the driver and only occupant of the car. Officer Stockmeyer also

told me that as part of the search incident to arrest he found a number of

rocks of what appeared to be crack cocaine on the floor of the car under

where Lee Berry was sitting. Stockmeyer told me that he field tested the

crack cocaine and it tested positive for the presence of cocaine.

The state judge signed the warrant at 12:10 a.m. on April 30, 2005, authorizing

the officers to search for the following evidence at 1228 Asbury Court: (1) cocaine and

other controlled substances; (2) residency documents and similar items showing the

identity of the persons residing there; and (3) a long list of standard drug-search items,

including scales, packaging materials, sales ledgers, currency, and firearms. 

Officers conducted the search during the early morning hours of April 30. In the

house, officers found significant evidence of drug trafficking, including four digital
No. 08-1048 United States v. Berry Page 5

scales, known cutting agents, packaging materials, several firearms, ammunition, and

quantities of drugs. In a safe in the bedroom, they found a single rock of crack cocaine

weighing approximately 17 grams and a zip-loc bag containing 12 grams of powder

cocaine. Pills were also found in the house, including 110 tablets of diazepam. Two

handguns were in the safe with the drugs, and another handgun was in the bedroom,

under a mattress. Two of the firearms had been reported stolen several years earlier.

The case was eventually referred to federal authorities. In November 2005,

Berry was indicted on six counts -- four drug charges and two firearm charges: 

• Count One charged Berry with possession with intent to

distribute the cocaine base found in the vehicle. 

• Count Two charged Berry with possession with intent to

distribute more than five grams of cocaine base found in the safe.

• Count Three charged Berry with possession with intent to

distribute more than five grams of powder cocaine found in the

safe. 

• Count Four charged Berry with possession with intent to

distribute diazepam.

• Count Five charged Berry with being a felon in possession of a

firearm. 

• Count Six charged Berry with knowingly possessing stolen

firearms.

Prior to trial, Berry moved for suppression of the evidence found during the

search of his residence on the grounds that the warrant was invalid on its face. Berry

argued the underlying affidavit failed to establish the requisite nexus between 1228

Asbury Court and drug activity. The district court denied the motion, finding probable

cause to search the house based on both the probation violation and the drugs found in

Berry’s car. The district court also held that even if the warrant lacked probable cause,

the good-faith exception applied to prevent exclusion of the evidence. 

In September 2007, a jury convicted Berry on Counts One, Two, Three, and Five,

but acquitted him of the diazepam and stolen firearms charges.
No. 08-1048 United States v. Berry Page 6

MOTION TO SUPPRESS

Berry argues the search warrant for 1228 Asbury Court lacked probable cause.

Specifically, Berry argues “[t]here was absolutely no evidence available to the police at

the time they obtained the Affidavit that there were any drugs in the house and [Berry]

did not have access to the house at any time after being arrested at 1228 Asbury Court”

(Appellant Br., p. 11). Considering this same argument on the motion to suppress, the

district court found that the “affidavit contained sufficient information for a reviewing

magistrate to reasonably conclude that defendant Berry was residing at the Saginaw

residence thus establishing a probation violation or that contraband likely would be

found at the residence” (JA 36). The district court further noted that even if the

underlying affidavit lacked probable cause, the good-faith exception applied (JA 37).

When reviewing a district court’s decision on a motion to suppress, the Court

uses a mixed standard of review: findings of fact are reviewed for clear error and

conclusions of law are reviewed de novo. United States v. Davis, 514 F.3d 596, 607 (6th

Cir. 2008). The review of the sufficiency of the evidence supporting probable cause is

limited to the information presented in the four corners of the affidavit. United States v.

Frazier, 423 F.3d 526, 531 (6th Cir. 2005). 

Under the Fourth Amendment, “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” “[S]o long as the magistrate had a

‘substantial basis for . . . conclud[ing]’ that a search would uncover evidence of

wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213,

236 (1983) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). In order to

conclude that an affidavit establishes probable cause, the issuing judge must find that

“given all the circumstances set forth in the affidavit . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Id. at 238.

To meet the nexus requirement of probable cause, “the circumstances must

indicate why evidence of illegal activity will be found in a particular place.” United

States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). In other words, “the
No. 08-1048 United States v. Berry Page 7

affidavit must suggest ‘that there is reasonable cause to believe that the specific things

to be searched for and seized are located on the property to which entry is sought’ and

not merely ‘that the owner of the property is suspected of a crime.’” United States v.

McPhearson, 469 F.3d 518, 524 (6th Cir. 2006) (quoting Zurcher v. Stanford Daily, 436

U.S. 547, 556 (1978)).

Berry cites the court’s decision in McPhearson in support of his argument that

the affidavit here lacked probable cause. In McPhearson, a 2-1 majority upheld the

district court’s grant of defendant’s motion to suppress. In that case, police officers

arrested defendant at his home on an outstanding warrant for simple assault. Id. at 520.

During the pat-down incident to arrest, the officers located crack cocaine in defendant’s

front pocket. The officers then obtained a search warrant to search for drug activity in

defendant’s home. The underlying affidavit stated that defendant was wanted for simple

assault, that the officers executed the arrest warrant at defendant’s home, and that a

search incident to the arrest turned up crack cocaine on defendant’s person. Id. at 521.

The McPhearson court held the affidavit lacked probable cause because it failed

to establish the requisite nexus between defendant’s home and drugs. The affidavit did

nothing more than state where defendant resided and that defendant was arrested for a

non-drug offense with a quantity of crack cocaine on his person. Id. at 524. 

The court rejected the government’s argument that defendant’s arrest outside his

home with drugs on his person was sufficient to establish a fair probability that his

residence would contain evidence of other drug-related crimes. However, the court

further noted that had the affidavit contained additional facts, such as defendant was a

known drug dealer, probable cause may have been present. Id. at 525 (“In the absence

of any facts connecting [defendant] to drug trafficking, the affidavit in this case cannot

support the inference that evidence of wrongdoing would be found in [defendant’s] home

because drugs were found on his person.”).

Although a defendant’s status as a drug dealer, standing alone, does not give rise

to a fair probability that drugs will be found in defendant’s home, Frazier, 423 F.3d at

533, there is support for the proposition that status as a drug dealer plus observation of
No. 08-1048 United States v. Berry Page 8

drug activity near defendant’s home is sufficient to establish probable cause to search

the home. Id. at 532-33 (citing United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir.

2002); United States v. Blair, 214 F.3d 690, 696 (6th Cir. 2000); United States v. Jones,

159 F.3d 969, 974 (6th Cir. 1998); United States v. Caicedo, 85 F.3d 1184, 1193 (6th

Cir. 1996)).

The government here relies heavily on United States v. Miggins, 302 F.3d 384

(6th Cir. 2002). In Miggins, the court held the search warrant contained probable cause

to search defendant’s apartment, even though no drug activity was observed occurring

there. The court found probable cause in the fact that defendant was a known drug

dealer and that defendant had recently signed for drugs delivered via FedEx to a different

home. Id. at 393-94. 

Here, we find the warrant established probable cause. The underlying affidavit

specified that Berry was known to be involved in drug trafficking based on a prior

conviction. Further, the warrant indicated that Berry was arrested for violating his

probation for that drug conviction and that officers discovered crack cocaine in Berry’s

car during a search conducted incident to Berry’s arrest in the driveway of 1228 Asbury

Court. In addition, the warrant specified that Berry was renting the residence under an

alias and that he paid his rent in cash. Finally, in the underlying affidavit, Sergeant Potts

stated that, based on his experience, vehicles “parked on the premise of the places where

controlled substances are found or sold oftentimes contain controlled substances.”

Simply put, the affidavit contained information establishing a nexus that the

McPhearson affidavit failed to do. Certainly the affidavit established “a fair probability

that contraband or evidence of a [drug] crime” would be found at 1228 Asbury Court.

Gates, 462 U.S. at 238.

REASONABLENESS OF SENTENCE

At the December 2007 sentencing hearing, defense counsel concurred with the

Presentence Report (PSR) that Berry’s Guidelines range was 360 months to life

imprisonment. Defense counsel also acknowledged that the district court was statutorily

required to impose a term of at least 180 months for Berry’s firearm conviction pursuant
No. 08-1048 United States v. Berry Page 9

to the enhancement in 18 U.S.C. § 924(e), and that the Sentencing Commission had

issued a policy statement under Guideline § 5G1.3 recommending Berry’s federal

sentence be imposed consecutive to any state court sentence imposed for the probation

violation. 

Berry’s mitigation arguments in support of a downward variance, under 18

U.S.C. § 3553(a), centered on the fact that he was 61 years old and would be much older

upon release from prison, especially if the sentence ran consecutive to his state sentence,

and also that his prior convictions were insignificant. Berry further argued that others

occupied the home where the drugs were found and there was no evidence anyone

actually sold drugs, a statement ostensibly about Berry’s culpability rather than a

legitimate argument supporting a lower sentence. The government did not oppose

Berry’s request for a downward variance, but noted the district court was statutorily

required to impose a minimum sentence of 180 months for conviction as a felon in

possession of a firearm. 

The district court acknowledged counsel’s argument about Berry’s age, but

indicated his age cut both ways because Berry was now a mature man who continued to

commit crimes, not an immature young man who could be expected to grow up. The

district court noted that Berry’s conduct for this conviction fit into a lifetime pattern of

criminal conduct, spanning at least sixteen convictions, including three firearms

convictions and several drug trafficking convictions. 

The district court concluded that the Guidelines prescribed the appropriate

sentence range and that there was no basis for a departure or variance. The district court

sentenced Berry to 360 months of imprisonment, to be served consecutive to his state

sentence. 

Procedural Reasonableness of Sentence 

Berry claims the district court’s explanation was insufficient, and as a result, his

sentence must be vacated. In response to Berry’s arguments about age, the court noted

that although the Guidelines direct sentencing courts not to consider an offender’s age,
No. 08-1048 United States v. Berry Page 10

the court found it to be a relevant factor that cut both ways. In response to the argument

that prior convictions were insignificant, the court noted that Berry had sixteen prior

convictions, seven of them felonies, and three of these felonies involved possession of

firearms.

Finally, the district court stated that it had “separately considered the factors that

we are directed to statutorily by Title 18 United States Code 3553(a),” and found no

rationale for departing from the Guidelines (JA 308). The court then sentenced Berry

to 360 months of imprisonment, to be served consecutive to any state sentence. After

announcing the sentence, the court asked if defense counsel had “any questions or

objections to the sentence being imposed,” to which defense counsel answered “no.” 

Berry’s claim is reviewed for plain error because after the district court

pronounced the sentence and asked if Berry had any objections, defense counsel

answered in the negative. See United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.

2004). The proper standard under these circumstances requires Berry to show: “(1)

error; (2) that was obvious or clear; (3) that affected defendant’s substantial rights; and

(4) that affected the fairness, integrity, or public reputation of the judicial proceedings.”

United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal citations

omitted).

Despite the district court’s brief explanation, it was reasonable and, in any event,

any potential error was not “plain.” “Although Congress requires a court to give ‘the

reasons’ for its sentence, 18 U.S.C. § 3553(c), it does not say that courts must give the

reasons for rejecting any and all arguments by the parties for alternative sentences.”

Vonner, 516 F.3d at 387. The sentencing judge must consider the list of sentencing

factors articulated in 18 U.S.C. § 3553(a); “such consideration, however, need not be

evidenced explicitly.” United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).

Furthermore, when a sentence is imposed within the applicable Guidelines range, as

here, the district court need not explicitly state that it has considered and rejected each

of defendant’s arguments. Rita v. United States, 551 U.S. 338, 357, 127 S. Ct. 2456,

2468-69 (2007). 
No. 08-1048 United States v. Berry Page 11

The district court explicitly addressed Berry’s key argument concerning age and

noted his extensive and violent criminal history. Further, the court sentenced Berry

within the Guidelines, and at the low end at that, reducing the need for extensive

explanation. Finally, a district court is not required to engage in a more thorough or

detailed explanation for refusing a downward variance just because the government

elects not to oppose such a request.

Substantive Reasonableness of Sentence

Berry faced a mandatory minimum sentence of 180 months and a Guidelines

range of 360 months to life imprisonment. The district court sentenced him to 360

months.

“Assuming that the district court’s sentencing decision is procedurally sound,

[the court] should then consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Gall v. United States, ____U.S.____, 128 S. Ct.

586, 597 (2007). This Court must affirm a sentence so long as it is “reasonable.”

Williams, 436 F.3d at 707. A sentence within the properly calculated Guidelines range

is afforded “a rebuttable presumption of reasonableness.” Id. at 708. “[T]he presumption

of reasonableness merely ‘reflects the fact that, by the time an appeals court is

considering a within-Guidelines sentence on review, both the sentencing judge and the

Sentencing Commission will have reached the same conclusion as to the proper sentence

in the particular case.’” United States v. Wilms, 495 F.3d 277, 281 (6th Cir. 2007)

(quoting Rita, 551 U.S. at 347, 127 S. Ct. at 2463).

Berry’s argument focuses on his age, noting that he will be in his nineties upon

release. Guideline § 5H1.1 is a policy statement that recommends a sentencing judge

not consider age when determining whether a departure is warranted. However, this

Court has recognized that a downward variance can be appropriate when a defendant is

particularly old. See, e.g., United States v. Davis, 537 F.3d 611, 615 (6th Cir. 2008). It

is clear the district court considered Berry’s age, but noted it “cut both ways,” finding

Berry’s age simply evidenced a life of continuing crime and inability to rehabilitate. See
No. 08-1048 United States v. Berry Page 12

United States v. Williams, 287 F. App’x 476, 478 (6th Cir. 2008) (noting defendant’s

criminal activity escalated as he aged). In sum, the district court could have (and did)

consider Berry’s age, and did not abuse its discretion in imposing the sentence. 

Consecutive Nature of Sentence

At the time of his arrest, Berry was on lifetime probation for a prior drug crime.

At his sentencing hearing, Berry requested that the district court impose the federal

sentence concurrent to his state sentence, noting his age, the small quantities of cocaine

involved in his prior convictions, and the indeterminate date of his parole from state

prison. The court ordered that he serve his 360-month federal sentence consecutive to

his undischarged state sentence.

When a defendant is serving an undischarged prior sentence, the district court

may impose a consecutive or concurrent sentence. 18 U.S.C. § 3584. The court must

consider the factors listed in 18 U.S.C. § 3553(a) in making this determination. See 18

U.S.C. § 3584(b). Furthermore, the court should also consider the relevant Guidelines

recommendations and policy statements. 18 U.S.C. § 3553(a)(4). Application Note

3(A) to Guidelines § 5G1.3(c) provides guidance, noting that a sentencing court should

consider:

(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.

Further, Application Note 3(C) provides that when a defendant is on federal or on state

parole or supervised release at the time of the instant offense, “the Commission
No. 08-1048 United States v. Berry Page 13

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

sentence imposed for the revocation.”

A challenge to a court’s decision to impose a consecutive or a concurrent

sentence is not easily classified as “substantive” or “procedural.” This is so because an

evaluation of the substantive reasonableness of a decision to impose a consecutive

sentence depends heavily upon an evaluation of the procedural reasonableness. See

United States v. Johnson, 553 F.3d 990, 997-98 (6th Cir. 2009) (noting that to determine

whether a district court abused its discretion in imposing a consecutive sentence under

§ 5G1.3, the court will look to “the record on appeal [for evidence] that the district court

turned its attention to § 5G1.3(c) and the relevant commentary in its determination”).

The district court’s decision whether to impose a concurrent or consecutive

sentence pursuant to § 5G1.3 is reviewed for abuse of discretion. United States v.

Watford, 468 F.3d 891, 916 (6th Cir. 2006). A court does not abuse its discretion when

it “makes generally clear the rationale under which it has imposed the consecutive

sentence and seeks to ensure an appropriate incremental penalty for the instant offense.”

United States v. Owens, 159 F.3d 221, 230 (6th Cir. 1998). Although a district court

retains discretion in imposing a consecutive or concurrent sentence, such discretion is

not “unfettered” and “‘the record on appeal should show that the district court turned its

attention to § 5G1.3(c) and the relevant commentary in its determination of whether to

impose a concurrent or consecutive sentence.’” Johnson, 553 F.3d at 997-98 (quoting

United States v. Covert, 117 F.3d 940, 945 (6th Cir. 1997)).

At Berry’s sentencing hearing, while asking for objections to the PSR and before

imposing the sentence, the court noted, “there is a guideline recommendation that the

sentences be imposed concurrently, but consecutive to the state sentence that the

gentleman is currently serving,” and Berry’s counsel agreed that this was a correct

articulation of the Guidelines. 

The district court then recognized the Section 3553(a) factors and discussed

Berry’s age, the pattern of crime over his lifetime, his prior convictions, and concluded

that it “did not find a rationale for departing from those guidelines or for a variance.”
No. 08-1048 United States v. Berry Page 14

Although the court did not explicitly reference the § 5G1.3 considerations, the court did

explicitly recognize the PSR discussion of that Guideline. After pronouncing Berry’s

sentence, the court simply stated: “Sentences are to be served concurrently with respect

to each other, but the court in the exercise of its discretion direct that they be served

consecutive to the Michigan Department of Correction sentence in its state case number

99 1541-FH.”

Though brief, this statement, in conjunction with the court’s invocation of

Section 3553(a), as well as its reference to Berry’s criminal record (indicating

consideration of 18 U.S.C. § 3553(a)(1)) and that his earlier felonies involved firearms

(suggesting consideration of 18 U.S.C. § 3553(a)(2)) is sufficient to demonstrate the

imposition of the consecutive sentence was reasonable. We have never held that a

district court is required to repeat a Section 3553(a) analysis in its consideration of the

consecutive or concurrent nature of a sentence when the same reasons for rejecting a

downward variance also support the decision for a consecutive sentence. 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.

Moreover, it is clear from the sentencing colloquy and the PSR that the district

court understood the type and length of Berry’s state sentence and its indeterminate

nature, as well as the separate nature of the state and federal offenses. The court also

referenced the Sentencing Commission’s recommendation of a consecutive sentence in

the case of a probation violation. For these reasons, we conclude that the district court

considered the factors relevant to its discretion to impose a sentence running consecutive

to Berry’s state sentence and thus did not abuse its discretion by imposing a consecutive

sentence. See Watford, 468 F.3d at 916.

CONCLUSION

For all of the reasons set forth above, the Court AFFIRMS both the denial of the

motion to suppress and the within-Guidelines sentence imposed by the district court.