In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3226

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STANLEY F. JACKSON,

Defendant-Appellant.

____________

Appeal from the United States District Court 

for the Western District of Wisconsin.

No. 07 CR 23—John C. Shabaz, Judge.

____________

ARGUED MAY 15, 2008—DECIDED OCTOBER 7, 2008

____________

Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Stanley F. Jackson pled guilty

to one count of possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a)(1). Jackson was on

probation and supervised release when he committed the

charged offense so he received a four-year sentence from

the state court for violating the terms of his release. The

district court then sentenced Jackson to 170 months’

imprisonment for the drug offense and imposed its sentence to run consecutively to that state sentence.
2 No. 07-3226

Jackson challenges the consecutive nature of his sentence,

arguing that because the state sentence was imposed in

part for conduct that was taken into consideration by

the district court in calculating his Guidelines range, he

was punished excessively for one course of conduct.

Although the district court had the discretion to impose a

consecutive sentence in this case pursuant to Section

5G1.3(c) of the United States Sentencing Guidelines

(“U.S.S.G.”), we are not confident that the district court

considered the relevant factors before doing so. Therefore,

we must remand for resentencing.

I. BACKGROUND 

On August 18 and 19, 2006, a confidential informant

cooperating with law enforcement purchased .6 gram

and .3 gram quantities of heroin from Jackson at a gas

station in Madison, Wisconsin. Based on these sales, the

state authorities searched Jackson’s residence on

August 26, 2006, and found more heroin.

At this time, Jackson was on probation for several bail

jumping convictions and extended supervision with

electronic monitoring for a 2001 felony crack cocaine

distribution conviction, both of which were imposed by

a Wisconsin state court. The state court revoked Jackson’s

probation and supervised release and sentenced him

to four years in prison.

Jackson subsequently pled guilty in federal court to one

count of knowingly and intentionally possessing heroin

with the intent to distribute. A probation officer prepared
No. 07-3226 3

a presentence investigation report (“PSR”) using the

November 2006 Sentencing Guidelines. The probation

officer concluded that Jackson was a career offender

under U.S.S.G. § 4B1.1 because he had two prior felony

convictions for controlled substance offenses. One was

the 2001 state felony crack cocaine conviction and the

other was a 2000 state court conviction for cocaine distribution. As a career offender, Jackson was assigned a

base offense level of 32 and a criminal history category of

VI. The probation officer subtracted three levels for

acceptance of responsibility, which resulted in a total

offense level of 29. Based on these calculations, the PSR

suggested a sentencing range of 151-188 months’ imprisonment. The probation officer noted in the PSR that the

Wisconsin state court had revoked Jackson’s supervised

release and sentenced him to a four-year term of imprisonment that he had begun serving.

Jackson did not object to the PSR. At sentencing, Jackson

requested that the district court sentence him on the low

end of the Guidelines range and concurrently to his fouryear state sentence, noting that had he not qualified as a

career offender, his sentencing range would have been

51 to 63 months’ imprisonment.

The district court sentenced Jackson to 170 months’

imprisonment, which is in the middle of the advisory

Guidelines range, and stated that the sentence should

be served consecutively to Jackson’s four-year state

sentence. It also imposed three years’ supervised release

to follow the term of imprisonment. Before pronouncing

the sentence, the district court considered the factors set

forth in 18 U.S.C. § 3553(a) and then stated, “Given the
4 No. 07-3226

nature of the offense, the quantities of controlled substance and the history and characteristics of this

defendant, a sentence at the middle of the guidelines

range may be sufficient, it’s certainly reasonable, it may

even be sufficient to satisfy the statutory purposes of

sentencing.” After pronouncing the sentence term, the

court stated that it would run consecutively to his undischarged state sentence in accordance with U.S.S.G. § 5G1.3.

This meant Jackson faced an overall sentence (when

combining the state sentence with the federal sentence)

of 218 months’ imprisonment.

II. ANALYSIS 

Jackson challenges his sentence on appeal, claiming that

the district court erred in imposing a consecutive sentence.

In reviewing sentences, we first look at whether the

lower court committed any procedural error, such as

improperly calculating the Guidelines range, failing to

adequately explain the chosen sentence, treating the

Guidelines as mandatory, or failing to consider the

§ 3553(a) factors. Gall v. United States, 128 S. Ct. 586, 597

(2007); United States v. Broadnax, No. 07-1985, ___ F.3d ___,

2008 WL 2955575, at *7 (7th Cir. Aug. 4, 2008). Then we

consider whether the court’s sentence is reasonable.

Broadnax, 2008 WL 2955575, at *7.

A. The district court had discretion to impose a consecutive sentence 

Jackson does not dispute that the district court imposed

a sentence within the properly calculated Guidelines
No. 07-3226 5

range. However, he contends that the district court erred

in imposing its sentence consecutively to the state sentence.

Section 5G1.3 of the Sentencing Guidelines governs the

imposition of a sentence on a defendant subject to an

undischarged term of imprisonment. We have noted

that “by providing that an appropriate total sentence is

imposed for all relevant conduct, no matter how that

conduct is ultimately divided and charged [this Guideline]

is meant to ensure that a defendant is not punished

excessively for one particular episode of offense conduct.”

United States v. Johnson, 324 F.3d 875, 878 (7th Cir. 2003). 

The Guideline contains three subsections which provide:

(a) If the instant offense was committed while the

defendant was serving a term of imprisonment

(including work release, furlough, or escape status)

or after sentencing for, but before commencing

service of, such term of imprisonment, the sentence for the instant offense shall be imposed to

run consecutively to the undischarged term of

imprisonment.

(b) If subsection (a) does not apply, and a term of

imprisonment resulted from another offense that

is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1),

(a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and

that was the basis for an increase in the offense

level for the instant offense under Chapter Two

(Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall

be imposed as follows:
6 No. 07-3226

(1) the court shall adjust the sentence for

any period of imprisonment already served

on the undischarged term of imprisonment

if the court determines that such period of

imprisonment will not be credited to the

federal sentence by the Bureau of Prisons;

and

(2) the sentence for the instant offense shall

be imposed to run concurrently to the

remainder of the undischarged term of

imprisonment.

(c) (Policy Statement) In any other case involving

an undischarged term of imprisonment, the sentence for the instant offense may be imposed to

run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment

for the instant offense. 

U.S.S.G. § 5G1.3(a)-(c).

Subsection (b) addresses situations where a district

court “shall” impose a concurrent sentence. This subsection is applicable when a state charge is “relevant conduct” (as defined by U.S.S.G. § 1B1.3(a)) to a defendant’s

federal offense and is used to determine the appropriate

offense level. Broadnax, 2008 WL 2955575, at *6; Johnson,

324 F.3d at 878-80; see also United States v. Heard, 359

F.3d 544, 549 (D.C. Cir. 2004). Although Jackson argues

that the district court “effectively” double-counted Jackson’s 2001 state conviction, he does not contend that the

conduct underlying that conviction was “relevant conduct”
No. 07-3226 7

under U.S.S.G. § 1B1.3. Therefore, subsection (b) is not

at issue here.

Subsection (c) applies when a defendant commits an

offense while on supervised release. Although the language of subsection (c) states only that a district court

may impose its sentence concurrently, partially concurrently, or consecutively to a prior undischarged sentence

to “achieve a reasonable punishment,” the commentary

to Guideline 5G1.3 specifies that subsection (c) applies

in cases where a defendant commits an offense while

on supervised release, and recommends “that the sentence for the instant offense be imposed consecutively

to the sentence imposed for the revocation.” U.S.S.G.

§ 5G1.3 cmt. n. 3(C).

The district court’s application of subsection (c) was

appropriate because Jackson was on state supervised

release and probation when he committed the instant

offense. The state court revoked Jackson’s supervised

release and probation and sentenced Jackson to four

years in prison based on the revocation. So, under the

Sentencing Guidlines, the district court had the discretion to impose Jackson’s sentence for the instant offense

consecutively to the state sentence.

Jackson argues that he was twice punished for the

conduct underlying his 2001 state controlled substance

conviction because it was used to qualify him as a

career offender (which raised his base offense level) and

then his sentence was imposed consecutively to his state

sentence based on the same offense. Had the court not

considered the 2001 conviction, Jackson’s Guidelines
8 No. 07-3226

range would have been 51-63 months instead of 151-188

months. Because this greater sentence was imposed

consecutively to the state sentence, Jackson received

what he deems an “excessive” punishment for the same

course of conduct. Jackson maintains that the proper

course would have been for the district court to impose

its sentence to run concurrently with the state sentence.

It bears mentioning that Jackson does not challenge

the calculation of the applicable Guidelines range, nor

does he challenge his status as a career offender under

the Guidelines. His sole argument is that the district

court’s application of U.S.S.G. § 5G1.3 was erroneous.

However, he points to no authority (and we can find

none ourselves) prohibiting consecutive sentences in

these circumstances. Cf. Heard, 359 F.3d at 551-53 (rejecting

argument that concurrent sentence was required where

prior offenses were part of the calculation that led to

career offender designation and higher Guidelines range).

Nevertheless, it is true that the combination of Jackson’s

sentence with his state sentence results in a lengthy term

of imprisonment for Jackson and that both sentences

were based in some part on overlapping conduct. The

government responds that there is no double counting

issue because the state’s revocation of Jackson’s probation vindicated a different interest than Jackson’s

federal sentence. That is, the state court’s sentence for

violating the terms of his supervised release is meant to

punish that breach of trust. See, e.g., United States v. Wyatt,

102 F.3d 241, 245 (7th Cir. 1996) (“revocation of supervised

release is . . . designed to meet objectives entirely distinct

from punishing the subsequent misconduct”).
No. 07-3226 9

But this issue—whether the imposition of a consecutive

sentence to a pre-existing state sentence for a crime used

to enhance the federal sentence under the career offender

guideline raises double counting issues—is one we need

not decide today. At the time of his federal crime, Jackson

was on supervised release and probation for a number

of offenses in addition to the 2001 crack cocaine conviction. For example, Jackson was also on probation for

various bail jumping offenses. The state court’s four-year

sentence reflects punishment for violating the term of

probation for those offenses as well as Jackson’s conduct

underlying the 2001 state court conviction. Therefore, the

conduct underlying the 2001 conviction which qualified

Jackson for career offender status was not the exact same

conduct that resulted in Jackson’s four-year state sentence. Compare United States v. Blum, 534 F.3d 608, 612 (7th

Cir. 2008) (“The presence of some factual overlap is not

sufficient to trigger the prohibition on double counting,

however, where the two enhancements address distinct

aspects of a defendant’s conduct.”). Therefore, the

district court did not err in imposing a consecutive sentence in this case.

B. The district court did not provide adequate explanation for rejecting Jackson’s arguments in favor

of a concurrent sentence 

That the district court was not required to impose a

concurrent sentence, however, does not mean it could not

have done so. At the sentencing hearing, Jackson’s

counsel correctly argued that the district court had the
10 No. 07-3226

discretion to impose a concurrent sentence and urged the

court to impose such a sentence, noting Jackson’s youth

at the time he committed the offenses that qualified him

for career offender status and the relatively minor nature

of those offenses. (His first offense occurred when he

was eighteen years old and involved less than five grams

of drugs, and his second offense occurred when he was

nineteen years old and again involved less than five

grams of drugs.) Because Jackson’s status as a career

offender had already increased his Guidelines range

(from 51-63 months to 151-188 months), counsel argued

that tacking that sentence onto Jackson’s four-year state

sentence (which had just begun) would be greater than

necessary to reflect the seriousness of the offense. This

was not a frivolous argument given the circumstances of

this case, where there is some overlap between the

conduct used to calculate Jackson’s sentence here and the

conduct driving the state sentence.

After hearing both parties’ arguments, the district court

reviewed Jackson’s abusive childhood, the fact that he

had “earned” his place as a career offender through his

prior convictions, and his noncompliance with supervision, and then stated: 

The fact is that his criminal history as well as this

particular offense does suggest a sentence at the

middle of the guideline range. It’s suggested at the

top of the guideline range. He was on state supervision which included electronic monitoring at the

time of this federal offense. Based on this history

there is a high likelihood that the defendant will
No. 07-3226 11

continue to engage in criminal activity and will

present a significant risk to the safety of the community. . . . Given the nature of the offense, the

quantities of controlled substance and the history

and characteristics of this defendant, a sentence

in the middle of the advisory guideline imprisonment range may be sufficient, it’s certainly reasonable, it may even be sufficient to satisfy the statutory purposes of sentencing. . . . The term of imprisonment will serve to hold the defendant accountable, protect the community from further

criminal activity, serve as a deterrent and achieve

parity with sentences of similarly situated offenders.

As to Count 3 of the superseding indictment it is

adjudged that the defendant is committed to the

custody of the Bureau of Prisons for imprisonment

for a term of 170 months. This term of imprisonment is to run consecutive to his state revocations

imposed in Dane County Circuit Court . . . in

accordance with Section 5G1.3, Note 3(c). You

don’t get a bonus in this court because you have

engaged in more criminal activity than others. It

doesn’t work that way.

Later, the district court entered a Statement of Reasons

which states that it “declines to run the sentence concurrent to his state revocations as suggested by defendant

being of the opinion that would unduly depreciate the

seriousness of the offense.”

The Guidelines contain an application note for U.S.S.G.

§ 5G1.3(c). That note states: 
12 No. 07-3226

(A) In General.—Under subsection (c), the court

may impose a sentence concurrently, partially

concurrently, or consecutively to the undischarged

term of imprisonment. In order to achieve a reasonable incremental punishment for the instant

offense and avoid unwarranted disparity, the

court should consider the following:

(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); 

(ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; 

(iii) the time served on the undischarged sentence

and the time likely to be served before release; 

(iv) the fact that the prior undischarged sentence

may have been imposed in state court rather than

federal court, or at a different time before the

same or different federal court; and

(v) any other circumstance relevant to the determination of an appropriate sentence for the instant

offense. 

U.S.S.G. § 5G1.3 cmt. n. 3(A) (“Application Note 3(A)”).

“[W]henever a district judge is required to make a

discretionary ruling that is subject to appellate review, we

have to satisfy ourselves, before we can conclude that the

judge did not abuse his discretion, that he exercised his

discretion, that is, that he considered the factors relevant

to that exercise.” United States v. Cunningham, 429 F.3d 673,
No. 07-3226 13

679 (7th Cir. 2005). The court’s explanation for its ruling

consists only of its cryptic remark—“You don’t get a

bonus in this court because you have engaged in more

criminal activity than others. It doesn’t work that

way.”—and its later statement that a concurrent sentence

would “unduly depreciate the seriousness of the offense.”

Contrary to the government’s assertion, the district court’s

discussion of the section 3553(a) factors does not explain

its decision to impose a consecutive sentence. We read

that discussion as explaining only the court’s decision

to impose a sentence in the middle of the advisory Guidelines range.

We do not have confidence that the district court considered any of the relevant factors in this case, where the

district court failed to address the principal argument

made by Jackson. See id. (“We cannot have much confidence in the judge’s considered attention to the factors in

this case, when he passed over in silence the principal

argument made by the defendant even though the argument was not so weak as not to merit discussion, as it

would have been if anyone acquainted with the facts

would have known without being told why the judge had

not accepted the argument.”). “A district court may pass

over in silence frivolous arguments for leniency, but where

a defendant presents an argument that is ‘not so weak as

not to merit discussion,’ a court is required to explain

its reason for rejecting that argument.” United States v.

Schroeder, No. 07-3773, ___ F.3d ___, 2008 WL 2971805, at *7

(7th Cir. Aug. 5, 2008) (quoting United States v. Miranda, 505

F.3d 785, 791 (7th Cir. 2007)). Jackson’s argument war-
14 No. 07-3226

ranted a reasonable explanation and the district court’s

brief, cryptic response does not provide sufficient explanation for us to determine whether the court abused

its discretion.

The government argues that because sentences

imposed at different times are presumed to run consecutively unless the sentencing judge orders them to run

concurrently, the district court’s sentence should be

upheld. See 18 U.S.C. § 3584(a). Had the court remained

silent, the government reasons, the sentence would have

run consecutively by default. But the court did not

remain silent so it is not clear how this argument advances the government’s position in this case. Perhaps if

Jackson failed to request a concurrent sentence, and the

district court remained silent on whether its sentence

would run consecutively or concurrently to a pre-existing

sentence, Jackson might have a difficult time challenging the consecutive nature of the sentence. Cf.

Romandine v. United States, 206 F.3d 731, 738 (7th Cir. 2000)

(“the final sentence of § 3584(a) makes the federal sentence

presumptively consecutive in all unprovided-for cases”)

(emphasis added). But here, where Jackson made a nonfrivolous argument for a concurrent sentence, which the

district court had the discretion to impose pursuant to

U.S.S.G. § 5G1.3(c), and where the court exercised its

discretion to deny Jackson’s request, we do not think the

court could simply have remained silent. See Cunningham,

429 F.3d at 679; cf. Broadnax, 2008 WL 2955575, at *7

(upholding a district court’s decision to impose a consecutive sentence where the district court “thoroughly

and on the record addressed the statutory factors as

required by § 3553(a), and only thereafter decided that
No. 07-3226 15

this situation called for Broadnax’s sentences to run

consecutively, rather than concurrently”).

III. CONCLUSION

Accordingly, we VACATE Jackson’s sentence and

REMAND for resentencing.

10-7-08