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- TEXT PUBLICATION

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

File Name: 20a0009p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA

, Plaintiff

- Appellee

,

v

.

K AHWAHNAS N UCUMBHI P OTTS

, Defendant

- Appellant

. ┐ │ │

│ │ │ │ │

┘ No. 18

- 1961

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:18

- cr

- 00012

- 1

— Janet T. Neff, District Judge.

Argued: October 16, 2019

Decided and Filed: January 8, 2020

Before: BATCHELDER, DONALD, and READLER, Circuit Judges

.

_________________

COUNSEL

ARGUED: Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for Appellant.

Ronald M. Stella, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for

Appellee. ON BRIEF : Blake P. Somers, BLAKE P. SOMERS LLC, Cincinnati, Ohio, for

Appellant. Ronald M. Stella, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,

Michigan, for Appellee.

_________________

OPINION

_________________

CHAD A. READLER, Circuit Judge. Kahwahnas Potts had a habit of breaking into

homes. But rather than stealing jewelry or money, Potts had a more intangible target: stealing 

### >No. 18

- 1961 United States v. Potts Page 2

identities. One of Potts’s many identify

- theft schemes was so intricate it required him to break

into a victim’s home not once or twice, but three times.

These brazen measures resulted in Potts’s arrest and an ensuing plea of guilty to one

count of unauthorized

- access

- device fraud and two coun ts of aggravated identity theft. Although

Potts had a long history of similar offenses, he had never received a sentence of more than two

years’ imprisonment. This time would be different.

After reviewing Potts’s criminal history, engaging with the par ties’ respective arguments

at sentencing, and weighing the § 3553(a) factors, the district court sentenced Potts to nine years’

imprisonment. Potts claims that his sentence was both procedurally and substantively

unreasonable. We disagree and AFFIRM the judgment of the district court.

I. BACKGROUND

Like many living in the upper Midwest, A.W. and S.W., a married couple from Grand

Rapids, Mic higan, spent parts of the fall and winter in Florida. That meant that their home in

Michigan sat empty for some time. That was the case when, two days before Christmas, the

couple’s nephew discovered that A.W. and S.W.’s home had been burglarized. Yet w hen the

police arrived to investigate the break

- in, the scene looked more like a Christmas miracle.

Despite evidence of a break

- in, nothing in the home had been stolen. Or so they thought.

In truth, the break

- in was the third in a series of illegal entr ies by Kahwahnas Potts, all in

pursuit of stealing the identities of A.W. and S.W. Potts’s first break

- in took place a few days

earlier, on December 19. After breaking both a glass door and window to enter the home, Potts

made his way to A.W.’s home offi ce. There, he found an Option1 Visa credit card not yet

activated. Using the home’s phone, Potts called Option1 and activated the card.

Potts soon began to use the card to withdraw large sums of money. That sudden activity,

however, triggered a fraud alert on the card. Representatives of Option1 left A.W. a message on

his home phone attempting to alert him to the fraud. Option1 also sent an email to an online

profile believed to have been created by A.W. But Potts, not A.W., had created that profile when

the card was activated. Pretending to be A.W., Potts responded to the email, questioned why theNo. 18

- 1961 United States v. Potts Page 3

card was put on hold, and requested that the hold be removed. To reactivate the card, however,

Option1 required the cardholder

— believed to be A.W.

— to ca ll Option1’s customer service

center to confirm there were no fraudulent charges on the account.

Potts would not be deterred. Returning to the scene of the crime, Potts broke into A.W.’s

home once again, this time to listen to A.W.’s answering machine an d to call customer service to

impersonate A.W. and successfully “verify” aspects of the account. But two break

- ins would not

prove to be enough for Potts. So he broke into the house yet again. From this series of criminal

acts, Potts had collected A.W.’ s address, social security number, personal identification number,

and other forms of identification. In his communications with Option1, Potts provided enough

information to the company to persuade it that he was in fact A.W., and the company

accordingly lifted the block on the Visa credit card.

By the time A.W. realized he was the victim of identity theft, Potts had already used the

card to withdraw over $16,500.00. And in addition to the Option1 Visa, Potts had attempted to

open and utilize twenty

- s ix other credit card accounts as well as at least one Bank of America

checking account, all under A.W.’s name. A.W.’s spouse, S.W., was also a victim. Using

S.W.’s personal information, Potts attempted to open a CapitalOne Visa credit card and a bank

acc ount in S.W.’s name. And A.W. and S.W. were not the only victims of Potts’s efforts to steal

identities. Reflecting that fact, A.W. began receiving mail containing credit card statements in

the names of several other victims.

Not knowing the identity o f the culprit, the police began to investigate. To find the

culprit, investigators first reviewed video recordings from the ATMs where Potts had withdrawn

funds. These recordings proved inconclusive, however, as Potts wore a mask and drove a

vehicle with a stolen license plate. So, the investigators turned to another digital medium,

attempting to track the IP address used to open the credit cards. But once again, Potts had

covered his tracks. In opening those cards, Potts utilized a phone issued in ano ther’s name and

accessed wi

- fi from services provided by local businesses.No. 18

- 1961 United States v. Potts Page 4

Finally, a lead surfaced. Potts had also used the phone in question to call his ex

girlfriend. Investigators contacted Potts’s ex

- girlfriend and had her listen to recordings of Potts’s

calls to Option1. She confirmed that it was Potts’s voice on the recordings.

In searching Potts’s name in a law enforcement database, investigators learned that Potts

previously used the address 2032 S. Division, Apartment 4, to submit fraudulen t online credit

card applications. While Potts no longer lived there, investigators still decided to visit the

complex. During their visit, the investigators noticed the complex had only three units, but four

mailboxes. In that fourth mailbox, investiga tors discovered numerous credit card applications

and associated mail, including a credit card for S.W.

Investigators obtained a search warrant for Potts’s current residence

. Upon executing the

search warrant, investigators identified the vehicles at Pot ts’s home as those in the ATM video

recordings. Officers also found several masks and gloves similar to those pictured in the videos.

And they discovered information linking Potts to A.W. and S.W. as well as documents and credit

cards in the names of sev eral other individuals. Reflecting the elaborate nature of Potts’s

schemes, officers found a notebook containing the names, social security numbers, associated

credit cards, and other personal identification information for eighty individuals, including A .W.

and S.W.

Potts was charged in a nine

- count criminal indictment for one count each of possession of

stolen mail, unauthorized

- access

- device fraud and possession of fifteen or more unauthorized

access devices; and three counts each of unlawful uses of social security numbers and aggravated

identity theft. He pleaded guilty to three counts: one count of unauthorized

- access

- device fraud

and two counts of aggravated identity theft.

The probatio n office compiled Potts’s presentence report, or “PSR,” to which neither

party objected. The PSR’s calculation included a wrinkle of sorts, given the counts of conviction

at issue. That is, unlike for most offenses, the length of the sentence to be impos ed for

aggravated identity theft is not subject to a Guidelines calculation. Instead, it carries a

mandatory two

- year sentence imposed by statute. See 18 U.S.C. § 1028A; U.S.S.G. § 2B1.6.

When calculating the Guidelines range for multiple

- count convicti ons that include aggravatedNo. 18

- 1961 United States v. Potts Page 5

identity theft, a district court must remove all counts of aggravated identity theft from the

Guidelines calculation, calculate the range for any remaining convictions, and then, later, impose

a combined sentence for all counts, including aggravated identity theft. U.S.S.G. § 3D1.1. With

respect to the remaining convictions, in Potts’s case, that left only one additional crime, the

underlying offense of unauthorized

- access

- device fraud. For that crime, Potts had a total offens e

level of 12.

After summarizing the charges in Potts’s plea agreement and his related offense conduct,

accepting Potts’s plea agreement, and discussing the PSR with the parties, the district court took

up calculating the sentencing range for the unauthori zed

- access

- device

- fraud offense. Given

Potts’s extensive criminal history, his criminal history category was VI, the highest category

recognized by the Guidelines. In the fifteen years preceding his latest offenses, Potts had

amassed five prior convictions w ith underlying conduct involving some manner of burglarizing

homes, stealing personal information and documents, and/or committing aggravated identity

theft. In one instance, Potts was sentenced by U.S. District Judge Janet T. Neff, the district judge

in this case as well, to two years in prison for aggravated identity theft.

With an offense level of 12 and a criminal history category of VI, Potts’s Guidelines

range for unauthorized

- access

- device fraud was 30 to 37 months. The probation office, however,

noted that the district court could depart upward from that range, on the basis that Potts’s

criminal

- history category under

- represented his criminal history. See U.S.S.G. § 4A1.3.

Based upon the PSR, the district court, prior to sentencing, issued a no tice to the parties

of its intent to exceed the Guidelines. At sentencing, the district court heard argument regarding

the appropriate Guidelines range for Potts’s unauthorized

- access

- device

- fraud conviction.

Following argument, the district court decide d to depart upward four levels under U.S.S.G.

§ 4A1.3 on the basis that Potts’s criminal

- history category under

- represented the seriousness of

his criminal history and/or the likelihood that he would commit another crime. Based upon that

departure, the ne w Guidelines range was 41 to 51 months for unauthorized

- access

- device fraud.

The district court also varied upward an additional nine months, ultimately imposing a sentence

of 60 months’ imprisonment for unauthorized

- access

- device fraud

.No. 18

- 1961 United States v. Potts Page 6

The district co urt then turned to Potts’s convictions for aggravated identity theft. Under

18 U.S.C. § 1028A(b)(2), Potts’s first conviction for aggravated identity theft had to run

consecutively to his conviction for unauthorized

- access

- device fraud, bringing his total sentence

up to seven years. Potts was convicted of two counts of aggravated identity theft, however, and

§ 1028A(b)(4) permitted the district court to act in its discretion, in accordance with any

applicable Guidelines and policy statements, to determine whether to run those sentences

consecutively or concurrently. After reviewing the probation officer’s recommendation and

hearing argument from the parties, the district court ordered that Potts’s sentences for aggravated

identity theft run consecutively, for a total of four years. All told, the district court sentenced

Potts to nine years of imprisonment

— 60 months for unauthorized

- access

- device fraud, and 48

months for two counts for aggravated identity theft.

That left one remaining matter for the distr ict court to resolve. By way of background,

before Potts was indicted for his actions in this case, he was arrested for and pleaded guilty to a

charge of domestic violence against his spouse. As a result, he was in state custody at the time

of his federa l indictment. In the state court matter, Potts received a sentence of one

- to

- five years

in prison, with parole eligibility beginning in 2019. And pursuant to U.S.S.G. § 5G1.3(d), the

district court had discretion to run that nine

- year sentence concurrent ly, partially concurrently, or

consecutively to Potts’s not

- yet

- completed state term of imprisonment.

Here again, the district court reviewed the probation officer’s recommendation and heard

argument from the parties. Taking all of that into account, th e district court specified that Potts’s

nine

- year federal sentence would be served consecutively to his undischarged term of state

imprisonment. During sentencing, Potts objected only to the court’s decisions to depart and vary

upward.

II. ANALYSIS

Pot ts asks that his sentence be vacated and his case remanded for resentencing.

To Potts’s mind, the district court made several errors in setting his sentence, meaning that his

sentence was procedurally unreasonable. They include: (1) running Potts’s two m andatory

aggravated

- identity

- theft counts consecutively to each other and to his sentence forNo. 18

- 1961 United States v. Potts Page 7

unauthorized

- access

- device fraud, (2) running Potts’s entire sentence consecutively to his

undischarged term of state imprisonment, and (3) departing upward under U.S.S.G. § 4A1.3

when fashioning Potts’s sentence for unauthorized

- access

- device fraud . Potts also argues that

his sentence was substantively unreasonable. We reject each of his arguments.

A. Potts’s Sentence Was Procedurally Reasonable.

When evaluating a sentence for procedural reasonableness, we focus on how the district

court calculated the sentence. We ask whether the district court properly calculated the

Guidelines range, remembered to treat that range as advisory, considered the se ntencing factors

in 18 U.S.C. § 3553(a) while refraining from considering impermissible factors, selected the

sentence based upon facts not clearly erroneous, and adequately explaine d why it chose the

sentence. United States v. Rayyan , 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall v. United

States , 552 U.S. 38, 51 (2007)).

How we assess these considerations is influenced by our standard of review. Where the

defendant has preserved a sentencing argument below, we review the district court’s decision to

r eject that argument for an abuse of discretion. United States v. Parrish , 915 F.3d 1043, 1046

–

47 (6th Cir. 2019). That is the case for the district court’s upward departure under § 4A1.3. But

Potts did not object after the sentence was announced to two other decisions he challenges today :

(1) running Potts’s aggravated

- identity

- theft counts consecutively to each other; and (2) running

Potts’s federal sentence consecutively to his state sentence. In view of Potts’s failure to raise

those issues before the district court, we review those c laims only for plain error. United States

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

1. The District Court Did Not Commit Plain Error By Ordering Potts’s Aggravated

Identity

- Theft Sentences To Run Consecutive ly.

Up first is Potts’s contention that the district court erred in ordering that Potts’s two

aggravated

- iden tity

- theft sentences run consecutively, rather than concurrently.

We first note that 18 U.S.C. § 1028A prescribes a precise penalty for aggravated

- identity

theft crimes. While criminal statutes often provide a minimum and maximum sentence, with the

Guid elines assisting the sentencing judge in deciding where between those guideposts to set aNo. 18

- 1961 United States v. Potts Page 8

sentence, convictions under § 1028A are sentenced to exactly two years’ imprisonment. In that

way, a district court’s sentencing analysis is constrained. But it is less constrained where a

defendant is convicted of multiple counts of aggravated identity theft. In that instance,

§ 1028A(b)(4) grants the district court discretion to decide whether sentences for those counts

should run concurrently with, or consecutively to, each other. To guide that determina tion,

Congress instructed the district courts that “such discretion shall be exercised in accordance with

any applicable guidelines and policy statements issued by the Sentencing Commission . . . .”

18 U.S.C. § 1028A(b)(4).

Turning to the Guidelines, in U.S.S.G. § 5G1.2, the Sentencing Commission provided

general instructions to district courts imposing a sentence with multiple convictions.

No Guidelines lang uage specifically discusses aggravated

- identity

- theft offenses, but the

Commission did address the specific offense in Application Note 2(B) to § 5G1.2. There, the

Commission lists a number of “non

- exhaustive

. . . factors ” a district court should consider when

imposing a sentence that involves multiple aggravated

- identity

- theft offenses. They include :

(1) the “nature and seriousness of the underlying offenses;” (2) “[w]hether the underlying

o ffenses are groupable under § 3D1.2 (Groups of Closely Related Counts);” and (3) “[w]hether

the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2) are better achieved by imposing a

concurrent or a consecutive sentence.” U.S.S.G. § 5G1.2, cmt. n.2( B). With respect to the

second consideration, groupability, the Guidelines recommend that where multiple underlying

offenses are groupable, the corresponding “counts of 18 U.S.C. § 1028A should run concurrently

with one another.” Id.

In deciding to run Potts’s sentences consecutively, rather than concurrently, the district

court did not expressly reference § 5G1.2, nor did it expressly analyze by name the factors in

Application Note 2(B). Potts argues that the district court was required to refer to § 5G1.2 and

the Application Note factors when setting forth its rationale for issuing consecutive § 1028A

sentences.

This Circuit has not yet addressed whether a district court, in selecting a sentence

involving multiple counts of aggravated identity theft, must specifically address the factors in §

5G1.2, Application Note 2(B), in addition to any oth er relevant sentencing factors. Many of ourNo. 18

- 1961 United States v. Potts Page 9

sister circuits, however, have considered how to weigh the form and the substance of the

Application Note 2(B) factors, including what express statements, if any, a district court must

make at sentencing. Some circuits are more lenient than others. These circuits, when reviewing

a sentence involving aggravated identity theft, look primarily to the substance of that sentencing

analysis rather than the form it takes. Of the more rigid approaches, the Seventh Cir cuit has held

that the failure either to reference § 5G1.2 or formally to recognize the factors in Application

Note 2(B) can constitute plain error.

That Seventh Circuit’s decision is United States v. Dooley , 688 F.3d 318, 320

– 21 (7th

Cir. 2012) (Easterbrook, C.J.). In Dooley , the defendant stole personal information from hospital

patients. For that conduct, he was convicted of nine offenses, three of which were aggravated

identity theft. Id. at 319. At sentencing, the district court neither referred to § 5G1.2 nor

addressed most of the Application Note factors, including whether the six underlying offenses

were groupable. Id. at 321 (noting that the district court discussed § 3553(a)(6), disparity in

sentencing, when evaluating the appropriate length of the defendant’s sente nce rather than the

Application Note factors). Employing a formalistic approach, the Dooley court concluded that

because the underlying statute, § 1028A(b)(4), requires a sentencing court to exercise its

discretion “in accordance with any applicable [G]uidelines and policy statements,” consideration

of the Application Note 2(B) factors is “essential to the statutory process.” Id . And there, the

record was so bereft of these considerations, the government conceded that the fail ure to

reference § 5G1.2, the relevant Application Note, or the applicable considerations included

therein, constituted plain error. Id.

Other circuits, however, have been less rigid in considering whether a district court

properly considered the factors in § 5G1.2 Application Note 2(B) during sen tencing. These

circuits tend to assess the substance of the sentencing process, asking whether the Application

Note 2(B) factors were considered in some form during sentencing. By our count, the Third,

Fourth, Ninth, and Eleventh Circuits have all held, in one form or another, that express reference

to § 5G1.2 and its Application Note factors during sentencing is not required. See, e.g.

, United

States v. Savage

, 885 F.3d 212, 230 (4th Cir. 2018); United States v. Fudge

, 592 F. App’x 86,No. 18

- 1961 United States v. Potts Page 10

91

– 92 (3d Cir. 20 14); United States v. Hung Quoc Bui

, 500 F. App’x 658, 660 (9th Cir. 2012);

United States v. Bonilla

, 579 F.3d 1233, 1245 (11th Cir. 2009)

.

In the Eleventh Circuit, for example, a district court need not explicitly reference the

Application Note 2(B) factors during sentencing where it nonetheless considered those factors in

some manner. See Bonilla

, 579 F.3d at 1245 (finding no abuse of discr etion where the district

court did not reference § 5G1.2 Application Note 2(B) factors by name but “went through all the

5G1.2 factors” ). Indeed, the Eleventh Circuit has followed this reasoning consistently through a

series of decisions dating back to 20 09. See, e.g.

, United States v. Doe

, 536 F. App’x 871, 874

(11th Cir. 2013) (finding that district court implicitly considered the § 5G1.2 Application

Note factors when discussing the nature and seriousness of the defendant’s offense and

considering the f

actors listed in 18 U.S.C. § 3553(a)(2), even where the district court did not

expressly reference § 5G1.2 or the Application Note factors during sentencing); United States v.

Bradshaw

, 445 F. App’x 176, 180

– 81 (11th Cir. 2011) (failure to reference the § 5G1.2

Application Note 2(B) factors did not constitute plain error where no binding precedent required

the district court to do so, and the district court considered the nature and seriousness of the

underlying offenses and the § 3553(a)(2) factors, two of the Application Note factors).

The Fourth Circuit similarly employs a less formalistic approach in reviewing a sentence

to which the Application Note 2(B) factors apply

. In circumstances like those present here, the

Fourth Circuit has held that a distr ict court did not abuse its discretion in running two

aggravated

- identity

- theft counts partially consecutively, despite the absence of a formal

application of the § 5G1.2 Application Note 2(B) factors

. Savage

, 885 F.3d at 230. The district

court there did not refer to § 5G1.2 during the sentencing hearing. But it did identify its reasons

for issuing a partially consecutive sentence when it considered the § 3553(a) sentencing factors.

Having said as much, the district court’s failure to reference expressly § 5G1.2 or Application

Note 2(B) did not undermine the court’s ultimate sentencing decision

. Id

.

The Third and Ninth Circuits, albeit in unpublished decisions, have also accepted

sentencing proceedings that failed to refer ence expressly the § 5G1.2 Application Note 2(B)

factors during sentencing. See Fudge

, 592 F. App’x at 91

– 92 (the “failure to expressly reference

the § 5G1.2 Application Note 2(B) factors does not amount to plain error” where the districtNo. 18

- 1961 United States v. Potts Page 11

court did not re fer to the factors by name but nonetheless considered in substance the first and

third factors); United States v. Corbin

, 474 F. App’x 66, 69 (3d Cir. 2012) ; Hung Quoc Bui

,

500 F. App’x at 660; United States v. Egu

, 379 F. App’x 605, 608 (9th Cir. 2010) (n oting that

while the district court “could have more specifically addressed why consecutive sentences were

appropriate despite the groupability of Defendant’s underlying convictions,” it did not abuse its

discretion by running the § 1028A sentences consecu tively).

Potts, for his part, primarily invokes the Second Circuit’s decision in United St ates v.

Chibuko , 744 F.3d 259, 264 (2d Cir. 2014). Potts says Chibuko supports his claim that the

district court erred by failing to reference expressly the § 5G1.2 Application Note 2(B)

factors. But the Second Circuit’s rationale in Chibuko stakes out something of a middle ground

between the two general approaches just identified. On the o ne hand, the Chibuko court

remanded for resentencing a case in which the district court, during sen tencing, “made no

reference to Guidelines § 5G1.2; no reference to Application Note 2(B); and, no reference to

groupability” in deciding to run multiple aggravated

- identity

- theft sentences consecutively. Id

.

at 263. Yet the Second Circuit made clear that it remanded the matter for resentencing not

because the district court failed to name the relevant Guidelines section in a “robotic

incantation,” but because the second factor set forth in Application Note 2(B)

— whether the

multiple underlying convictions were groupable

— was relevant but not at all considered by the

district court. 744 F.3d at 263 (quot ing United States v. Cavera , 550 F.3d 180, 193 (2nd Cir.

2008) (en banc)).

Taking all of this into account, we agree w ith the majority of our sister circuits that a

district court’s failure to reference expressly § 5G1.2 or Application Note 2(B) does not amount

to plain error, so long as there is some indication that the district court assessed the relevant

factors includ ed in that section and Application Note. A functional approach, one that looks to

the sentencing colloquy in its entirety, is well

- suited in this setting.

As an initial matter, we note that at the time of Potts’s sentencing, our Circuit did not

require a district court to discuss explicitly the list of non

- exhaustive factors provided in the

comments to § 5G1.2. Nor did the weight of non

- binding (but persuasive) authority at the time.

The authority on the question was mixed, with an edge to substance ov er form. Accordingly, theNo. 18

- 1961 United States v. Potts Page 12

district court’s actions could not have amounted to plain error. For an error to be plain, it must

be clear and obvious

— which it cannot be if it involves a question of first impression in this

Circuit

— especially one over which t he remaining circuits were divided. See United States v.

Al

- Maliki , 787 F.3d 784, 794 (6th Cir. 2015). These circumstances alone extinguish Potts’s

claim.

But even beyond those circumstances, we agree that a functional approach is better suited

to asse ss whether a district court applied § 5G1.2 and its underlying considerations. And that

functional approach, measured against the record below, dictates that no error occurred in

sentencing Potts to serve his two aggravated

- identity

- theft counts consecuti vely. While not

expressly referencing the factors in Application Note 2(B), the district court was aware of its

discretion to run the sentences for Potts’s aggravated

- identity

- theft convictions concurrently. It

then discussed in substance two of the thre e § 5G1.2 Application Note 2(B) factors

— factor one,

the nature and seriousness of the underlying offense and factor three, the purposes of sentencing

set forth in § 3553(a)(2), respectively

— before imposing Potts’s sentence. The district court

started with the PSR, which stated that “the court must impose a consecutive sentence for the

first aggravated

- identity

- theft violation, but the court has the discretion to run additional

convictions for aggravated identity theft concurrently.” Although neither party referenced

§ 5G1.2 during the sentencing hearing, each side discussed the district court’s discretion to order

the two aggravated

- identity

- theft sentences to be concurrent with or consecutive to each other.

In reaching its decision, the district court re viewed, in detail, both the nature and

seriousness of Potts’s offense as well as more broadly the purposes of sentencing set forth in

18 U.S.C. § 3553(a)(2). In doing so, the district court addressed both the appropriate Guidelines

range for unauthorized

- access

- device fraud as well as Potts’s sentence “with the addition of the,

[sic] of Counts 3 and 8 [for aggravated identity theft].” When looking at the nature and

seriousness of Potts’s offense, the district court described Potts as a “sophi sticated mail thief”

whose actions were “ more serious than any of the stolen mail or stolen ID cases that [the court

had] seen in 11 years on this bench.” The district court found it particularly outrageous that Potts

broke into A.W. and S.W.’s home multi ple times to listen to their answering machine, call credit

card companies and banks, and impersonate them. The district court also considered the otherNo. 18

- 1961 United States v. Potts Page 13

factors listed in § 3553(a)(2), finding that Potts was highly likely to commit these crimes again,

giv en that he had engaged in this same pattern of behavior for fifteen years. As to whether the

sentence reflected just punishment and the seriousness of the offense, the district court noted that

the Guidelines range at issue did not account for Potts’s und erlying home invasion, and it cited

concerns about the need to deter similar future conduct. The overall length of the sentence,

which included two consecutive two

- year terms for the counts of aggravated identity theft, was

thus necessary to promote respe ct for the law, deter Potts from continuing this behavior, and

protect the public from future crimes.

To be sure, the district court did not address “whether the underlying offenses are

groupable under § 3D1.2,” the second factor in Application Note 2(B) to § 5G1.2. But here Potts

pleaded guilty to only one underlying offense, and § 3D1.2 looks to the groupability of the

underlying counts of conviction

. In this respect, today’s case is distinguishable from Chibuko

and Dooley

. In both Chibuko and Dooley

, the district courts entirely failed to consider at least

one relevant factor from Application Note 2(B). In Dooley

, the district court did not refer to

§ 5G1.2 by name nor did it appear to analyze several of the § 5G1.2 Application Note 2(B)

factors, in cluding groupability. 688 F.3d at 321. Here, on the other hand, the district court

addressed both the first and third factors, and groupability was not at issue because Potts pleaded

guilty to only one underlying offense.

That said, the Seventh Circuit’ s point in Dooley is well taken: Because Congress,

through § 1028A(b)(4), directed courts to consider the applicable Guidelines and policy

statements when considering whether to order consecutive or concurrent sentences for

aggravated identity theft, each relevant factor in § 5G1.2 Application Note 2(B) should be

considered

. But as the Second Circuit aptly acknowledged, the amount of explanation required

varies with the circumstances; “some cases will require an extended discussion of a given factor.

Oth er cases may require only a brief mention or even need none at all.” Chibuko , 744 F.3d at

263. Here, the district court sufficiently addressed the factors relevant to this case and, in turn,

explained its rationale. Under these circumstances, we see no plain error in the district court’s

imposition of two consecutive two

- year sentences for Potts’s convictions for aggravated identity

theft.No. 18

- 1961 United States v. Potts Page 14

2. The District Court Did Not Commit Plain Error By Running Potts’s Federal Sentence

Consecutively To His State Sentence.

Many of these same themes are present in Potts’s next assertion: that the distric t court

erred, under § 5G1.3, in running his federal sentence consecutively to an undischarged term of

state imprisonment. At the time of his federal sentencing, Potts was serving a sentence for a

domestic violence conviction in Michigan state court. Tha t sentence was for one

- to

- five years in

prison, with parole eligibility beginning in 2019. As he did in other claims, Potts argues here too

that the district court committed plain error, and thus imposed a procedurally unreasonable

sentence, when it faile d expressly to reference § 5G1.3 before deciding whether to run his federal

and state sentences consecutively.

Much like Application Note 2(B) to § 5G1.2, Application Note 4(A) to § 5G1 .3

articulates factors sentencing courts should consider before deciding whether to run state and

federal sentences consecutively. They include: (1) the § 3553(a) factors; (2) the type and length

of the prior undischarged sentence; (3) the time served and likely to be served on the

undischarged sentence; (4) the procedural posture of the undischarged sentence (whether it was

imposed in state or federal court and when it was imposed); and (5) any other relevant

circumstance. U.S.S.G. § 5G1.3, cmt. n. 4(A).

Unlike our consideration of Potts’s aggravated

- identity

- theft convictions, where the most

relevant authority came from outside the Circuit, we have previously addressed whether a

§ 5G1.3 analysis requires a district court to engage in a separate recitation of the Guidelines

provision or its underlying considerations. And we have not imposed such a requirement. That

is, we do not ask whether a district court “explicitly reference[d] the § 5G1.3 considerations”

when determining whether to run a sentence consecutively to or concurrently with another.

United States v. Berry

, 565 F.3d 332, 343 (6th Cir. 2009) (revie wing for abuse of discretion); see

also United States v. Harmon

, 607 F.3d 233, 237, 239 (6th Cir. 2010) (reviewing for plain error).

Instead, reviewing “the totality of the record,” we ask whether the district court, in imposing

consecutive sentences, fol lowed the rationale provided in Application Note 4(A). Harmon

,

607 F.3d at 239; United States v. Johnson

, 553 F.3d 990, 998 (6th Cir. 2009). So long as that

rationale is “generally clear,” either in a statement by the district court or by reference to th e PSRNo. 18

- 1961 United States v. Potts Page 15

or other documents, the district court does not abuse its discretion (let alone commit plain error)

and impose a procedurally unreasonable sentence, by failing to expressly consider the factors

contained in § 5G1.3 Application Note 4(A). United Stat es v. Cochrane

, 702 F.3d 334, 346 (6th

Cir. 2012) (quoting United States v. Owens

, 159 F.3d 221, 230 (6th Cir. 1998) (reviewing

procedural

- unreasonableness challenge under an abuse

- of

- discretion standard) )

.

Reviewing the totality of the record below, we are confident the district court adequately

considered those factors. Both the parties and the PSR discussed the indeterminate nature of

Potts’s undischarged state prison term, his time served, and the time likely to be served before

release. The PSR exp lained the details of the state conviction and sentence. Because Potts was

in federal custody, his counsel informed the district court that Potts was unable to complete a

domestic violence class required by his state sentence, was thus denied parole, and, as a result,

could be confined in state prison for an additional year. The government argued against Potts’s

request for a concurrent sentence because it believed that the domestic

- violence offense and the

instant offense w ere “two entirely different eve nts” that needed to be punished separately.

Taking all of this into consideration, the district court determined that consecutive sentences

were warranted to justly punish Potts, protect the public, deter others from committing similar

crimes, and otherwi se promote respect for the law.

As already discussed, the district court also engaged in an extensive discussion of the §

3553(a) factors before fashioning its sentence, another consideration in § 5G1.3 Application

Note 4(A). Together, these considerati ons are sufficient to support the decision to impose a

consecutive sentence, and we do not require a district court to repeat that analysis when assessing

whether to impose a sentence consecutive to a state sentence. Berry

, 565 F.3d at 342

– 43. See

also H armon

, 607 F.3d at 239; United States v. Ward

, 436 F. App’x 601, 605 (6th Cir. 2011)

(upholding a sentence on plain error review even though the district court did not mention

§ 5G1.3 but analyzed the § 3553(a) factors intertwined with its decision to impose consecutive

sentences). The district court thus committed no error at all, let alone plain error.No. 18

- 1961 United States v. Potts Page 16

3. The District Court Did Not Abuse Its Discretion By Departing Upward.

As his final claim of procedu ral unreasonableness, Potts cites the district court’s decision

to apply a four

- level upward departure under U.S.S.G. § 4A1

. 3

. Section 4A1.3 provides that a

sentencing court may depart upward from a calculated Guidelines range when reliable

information

— su ch as prior sentences or misconduct that is insufficiently accounted for

—

“indicates that the defendant’s criminal history category substantially under

- represents the

seriousness of the defendant’s criminal history or [risk of recidivism].” U.S.S.G. § 4A1. 3(a)(1).

In reviewing for procedural reasonableness a sentence that includes an upward departure,

we ask only whether the district court followed the requisite procedures when applying the

departure; whether that departure was appropriate is a question of substantive reasonableness.

Those procedures were followed. Potts received notice that the district court was considering an

upward departure under § 4A1.3. See Fed. R. Crim. P. 32(h). Before ordering a departure, the

district court properly calculated the initial Guidelines range. In later explaining why an upward

departure was necessary, the district court followed the structure of the Guidelines, as required

by § 4A1.3, and addressed all of the § 3553(a) sentencing factors, in particular, the seriou sness of

Potts’s offenses and the likelihood that he would recidivate. See U.S.S.G. § 4A1.3(a)(4)(B) cmt.

n.2. The district court also provided a statement of reasons, as required by 28 U.S.C.

§ 3553(c)(2).

Against this backdrop, Potts claims that the d istrict court nonetheless committed

procedural error by failing to explain sufficiently its decision to select a four

- level departure,

“rather than, for example, a [three]

- level or [five]

- level departure.” We disagree. In assessing

whether to depart upwa rd, this district court was guided by § 4A1.3. As explained in that

section, for a defendant with a category VI criminal history score, the district court, when

considering an upward departure, must move incrementally along the sentencing table to the nex t

higher offense level until it finds an appropriate Guidelines range. Following those instructions,

the district court both explained its rationale for choosing to depart, and then explained how it

decided that a departure would result in what it conside red to be an appropriate Guidelines range

for Potts. As to its rationale for the upward departure, the district court emphasized that Potts

was likely to recidivate, noting Potts’s tendency to repeat his criminal conduct. Specifically, theNo. 18

- 1961 United States v. Potts Page 17

district court examined Potts’s prior identity

- theft crimes as well as his string of domestic

violence convictions, including the conviction for which he was currently serving his state

- court

sentence. And as to why it chose a four

- level upward departure, the district court looked to

Potts’s most recent conviction, one for assault. Noting that the base offense level for simple

assault was four, the district court utilized that figure as its rationale for the four

- level departure.

This explanation was procedurally suffi cient. Although we require that a sentencing

court adequately explain why it has opted to depart or vary, United States v. Presley , 547 F.3d

625, 629 (6th Cir. 2008), we do not require that explanation to include the court’s rationale for

rejecting other possible sentences. See United States v. Sexton , 889 F.3d 262, 265 (6th Cir.

2018) (citing United States v. Gale , 468 F.3d 929, 94 0 (6th Cir. 2006)). With respect to the

specific instance in which the defendant has a category VI criminal history, we have previously

stated that a district court, in deciding to depart upward pursuant to U.S.S.G. § 4A1.3, need not

provide a “mechanisti c” explanation as to “why each intervening range is inappropriate before

settling on an appropriate range and sentence.” Id . (quoting United States v. Herrera

- Zuniga

,

571 F.3d 568, 588 (6th Cir. 2009) (internal quotation marks omitted)). Such explanatio ns may

well be useful. But a sentencing decision is not arbitrary simply because it does not weigh one

possible departure against another. Id.

In other words, we do not require the district court to cover every possible sentencing

alternative. We simpl y ask whether the district court showed its work such that we can

meaningfully review how and why it crafted a sentence. See United States v. Chiolo , 643 F.3d

177, 182 (6th Cir. 2011). Absent an express directive to the contrary, we do not require “magic

words,” nor do we require a mechanical recitation of every factor or provision relied upon by the

district court. See United States v. Dexta , 470 F.3d 612, 614

– 15 (6th Cir. 2006). Because the

district court more than adequately explained its reasoning f or the imposition of its sentence, we

find no procedural error warranting reversal.No. 18

- 1961 United States v. Potts Page 18

B. Potts’s Sent ence Was Substantively Reasonable.

Lastly, Potts claims that his 108

- month sentence is substantively unreasonable

.

In contrast to procedural reasonableness, substantive reasonab leness focuses on the length of the

sentence, looking, in essence, to see whether the sentence is needlessly harsh or inappropriately

lenient

. See Rayyan , 885 F.3d at 442. Here too, our standard of review is deferential. We ask

whether the district cour t abused its discretion in setting the sentence when evaluating the extent

of any departure or variance from the Guidelines range, and we consider the totality of the

circumstances. See Gall , 552 U.S. at 51

. While a sentence outside of the Guidelines ran ge is not

afforded a presumption of reasonableness, neither is it subject to a presumption against

reasonableness. Herrera

- Zuniga , 571 F.3d at 590.

In matters of sentencing, we must respect the front

- row view enjoyed by the district

court. That court, in the first instance, with the defendant before it, with the benefit of extended

argument from the parties, and sometimes even with the benefit of witness testimony and other

evidentiary considerations, weighs the range of sentencing factors relevant in s etting a term of

confinement. Id. at 583 (“[Q]uestions concerning sentencing departures necessarily address the

district court’s refined assessment of the many facts bearing on the outcome, informed by its

vantage point and day

- to

- day experience in crimin al sentencing.”) (internal citations and

quotations omitted). For these reasons and others, we give considerable deference to a district

court’s decision about the appropriate length of a sentence, including any decision to depart or

vary. When evaluatin g upward departures in particular, we consider, among other things, the

severity of the prior criminal conduct, the defendant’s likelihood to recidivate, previous lenient

sentences, whether the sentence will deter future criminal conduct, whether the defen dant needs

to be isolated from the community, and the length of time needed to achieve rehabilitation, if

possible. United States v. Griffin , 530 F.3d 433, 441 (6th Cir. 2008) (citation omitted).

Based upon its assessment of the various aspects just ident ified, the district court departed

upward from a sentencing range of 30 to 37 months to 41 to 51 months, with an additional nine

month variance from the top of that range, to 60 months. Potts contends that the district court

failed properly to weigh mitigating factors favorable to Potts, including the nature of the offense

and Potts’s personal history. Potts pointed out below that the underlying offense conductNo. 18

- 1961 United States v. Potts Page 19

occurred over two years a go, and that Potts owed a relatively small amount of money in

restitution. Potts added that he still had part of his state prison sentence to serve. And Potts, we

note, showed remorse for his actions and expressed a desire to be a better father to his so n. Even

taking into account these considerations and measuring the decision below for an abuse of

discretion, we do not view as unreasonable the district court’s conclusion that Potts’s criminal

history category substantially under

- represented the likelihood that he would commit other

crimes.

Contrary to Potts’s claims, the district court carefully considered whether a departure was

appropriate in this unique setting: “I think counsel is aware that I rarely invoke this kind of

guideline calculation. And so I spent a considerable time looking at 4A, and particularly

4A1.3(a)(1)[,] which sets out the standard for imposing an upward departure because of an

inadequacy of criminal h istory category.” The district court emphasized the similarities between

Potts’s prior convictions and his current conduct, noting that “it’s a pattern that seems to be

embedded in Mr. Potts’ criminal history, maybe even his lifestyle.” Indeed, five of P otts’s nine

prior convictions involved conduct that included theft, possession, and/or use of someone else’s

personal information. At least one of those convictions, like today’s case, involved breaking into

homes to steal personal information. Another c onviction was before the same district judge, in

that instance, for the offense of aggravated identity theft. Potts’s pattern of committing the same

crimes in the same way justified the district court’s conclusion that Potts would likely recidivate.

See United States v. Musick , 601 F. App’x 414, 418

– 19 (6th Cir. 2015).

Nor do we see any abuse of discretion in the district court’s decisio n to vary upward nine

months past the calculated departure range. In so doing, the district court properly weighed the §

3553(a) factors. The district court discussed the seriousness of the offense, describing it as

“more serious than any of the stolen m ail or stolen ID cases that I have seen in 11 years on this

bench. . . acts of breaking into a victim’s home, not once but three times, listening to the

answering machine, calling credit card companies and banks, impersonating the victim, this I

find outra geous.” And it discussed the history and characteristics of the defendant, including his

lengthy criminal record, as well as the need to protect the public, promote respect for the law,

impose just punishment, and deter Potts from future crimes. After we ighing theseNo. 18

- 1961 United States v. Potts Page 20

considerations, the district court imposed an above

- Guidelines sentence. Potts has not shown

that the district court abused its discretion in doing so.

III. CONCLUSI ON

For these reasons, we AFFIRM the judgment of the district court.