United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2016 Decided January 24, 2017

No. 14-3092

UNITED STATES OF AMERICA,

APPELLEE

v.

IRVIN C. KENNY, ALSO KNOWN AS HOOP,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:96-cr-00295-1)

A.J. Kramer, Federal Public Defender, argued the cause and

filed the briefs for appellant.

Jennifer Loeb, Assistant U.S. Attorney, argued the cause for

appellee. With her on the brief were Elizabeth Trosman, John

P. Mannarino, and Katherine M. Kelly, Assistant U.S.

Attorneys.

Before: ROGERS, KAVANAUGH and WILKINS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.
2

ROGERS, Circuit Judge: Upon revocation of Irvin Kenny’s

supervised release as a result of his conviction on drug charges

in Maryland, the district court sentenced him to 30 months’

imprisonment, to be served consecutively to his drug sentence

in Maryland. Kenny appeals on the grounds the district court

treated the Sentencing Guidelines policy statement on

consecutive sentences as mandatory and also failed to consider

several factors in 18 U.S.C. § 3553(a) as required by § 3583(e). 

Because Kenny did not raise these objections in the district

court, our review is for plain error. United States v. Simpson,

430 F.3d 1177, 1183 (D.C. Cir. 2005). For the following

reasons, we hold that Kenny fails to show “clear” or “obvious”

error, United States v. Olano, 507 U.S. 725, 734 (1993), that

“affects substantial rights” based on “a reasonable likelihood

that the sentencing court’s obvious errors affected his sentence,”

United States v. Gomez, 431 F.3d 818, 822 (D.C. Cir. 2005)

(quoting United States v. Coles, 403 F.3d 764, 767 (D.C. Cir.

2005); United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994)). 

I. 

On September 5, 1996, Kenny was indicted on federal

charges for unlawful distribution of 50 grams or more of cocaine

base and unlawful distribution of cocaine base within 1,000 feet

of a school in the District of Columbia. He pleaded guilty to one

count of unlawful distribution, and was sentenced to 121

months’ imprisonment and five years’ supervised release. 

At the time of the drug offense in the District of Columbia,

Kenny was on probation in Virginia. Based on his plea in the

District of Columbia, Virginia revoked his probation and

ordered him to serve his suspended sentence upon completion of

his sentence in the District of Columbia. Kenny was

incarcerated from 1997 through 2005 on the federal charges and

then transferred to Virginia to serve the remainder of his
3

suspended sentence. He was released by Virginia in December

2008, and at that time began his five-year term of supervised

release for the 1996 federal conviction. While on supervised

release, he was arrested in Maryland for drug offenses, for

which he was sentenced to four years’ imprisonment. 

On December 5, 2014, following issuance of a habeas ad

prosequendum to the Maryland detention facility, the district

court held a hearing on revocation of Kenny’s supervised

release. Kenny moved to dismiss the violation, which the

government opposed. At the hearing, the government

recommended a sentence “at the low end” of the Guidelines

sentencing range of 30–37 months, to run consecutive to his

Maryland sentence. Rev. Hr’g Tr. 3 (Dec. 5, 2014). The district

court denied Kenny’s motion to dismiss, revoked his supervised

release, and sentenced him to 30 months’ imprisonment,

consecutive to the Maryland sentence. Kenny appeals. 

II.

On appeal, Kenny does not dispute that the Guidelines

sentencing range was 30–37 months’ imprisonment for his

violation of supervised release, or that the Sentencing

Guidelines policy statement in U.S.S.G. § 7B1.3(f) instructs that

supervised release revocation sentences “shall be ordered to be

served consecutively.” It is also undisputed that the Sentencing

Guidelines (including the policy statements) are advisory. 

United States v. Booker, 543 U.S. 220, 245 (2005); United States

v. Gardellini, 545 F.3d 1089, 1091–92 (D.C. Cir. 2008). 

This appeal therefore relates primarily to the statement by

the district court at the revocation hearing:

Well, based on the Maryland conviction, I do revoke

your term of supervised release in this case. I sentence
4

you to the low end of the [G]uidelines, which is 30

months. But the whole scheme of the [G]uidelines,

with which I agree, is that that has to be a consecutive

sentence. The new conduct has its own penalty, but the

conduct in this case is a violation of supervised release. 

The sentence should be, and I find it is appropriate, that

it be consecutive to the Maryland sentence. 

Rev. Hr’g Tr. 5 (emphasis added). Kenny contends that use of

the phrase “has to be” indicates that the district court failed to

appreciate the full range of its sentencing discretion and that had

it appreciated its discretion it might have imposed a concurrent

sentence, as defense counsel requested. We disagree.

The district court is presumed to know the law and apply it

correctly, United States v. Godines, 433 F.3d 68, 70 (D.C. Cir.

2006); Simpson, 430 F.3d at 1186, and the advisory nature of the

Guidelines’ policy statements is long established in this circuit,

even prior to the Supreme Court’s decision in Booker. In United

States v. Bruce, 285 F.3d 69 (D.C. Cir. 2002), this court held

that under 18 U.S.C. § 3553(b) a court must “merely consider

(i.e., ‘reflect on,’ ‘think about,’ ‘deliberate,’ ‘ponder’ or ‘study’)

policy statements” because Congress had not “require[d]

adherence to policy statements,” id. at 74. Similarly, in United

States v. Hooker, 993 F.2d 898 (D.C. Cir. 1993), the court

observed that the policy statements on supervised release and

probation in Chapter VII of the Sentencing Guidelines are

“merely advisory,” id. at 900. Moreover, even putting Booker

aside, given the law of the circuit, see LaShawn A. v. Barry, 87

F.3d 1389, 1393 & n.3, 1395 (D.C. Cir. 1996), the observation

noted in United States v. Head, 817 F.3d 354 (D.C. Cir. 2016),

that the Guidelines “would seem to contain a default bias in

favor of the [consecutiveness] requirement,” id. at 359 n.1,

cannot properly be read to hold to the contrary.
5

In any event, the district court’s statement at the revocation

hearing is not fairly understood other than as indicating that the

court recognized and exercised its sentencing discretion. Kenny

strains to suggest otherwise. First, the district court stated that

it “agree[d]” with the Sentencing Guidelines, a statement that,

in context, itself indicates the court’s recognition of their

advisory nature. Rev. Hr’g Tr. 5. Had the district court viewed

the Guidelines as mandatory, its agreement with them would

have been superfluous, if not irrelevant. Second, the district

court’s “has to be” reference simply paraphrased the policy

statement that “[a]ny term of imprisonment imposed upon the

revocation of probation or supervised release shall be ordered to

be served consecutively,” U.S.S.G. § 7B1.3(f) (emphasis

added). This is clear from the fact that the district court

immediately proceeded to explain its rationale for imposing a

consecutive sentence — Kenny had committed two separate law

violations, one in Maryland and one in violating his D.C.

supervised release, and he had a long history of drug offenses. 

At the hearing, the district court referred to Kenny’s “continued

sale of drugs,” admonishing him that “[y]ou got to stop,” Rev.

Hr’g Tr. 6, to avoid severe consequences upon another drug

conviction, and also denied Kenny’s motion to dismiss for the

reasons set forth in the government’s opposition, which

described Kenny’s recidivist drug offense history, id. at 7. 

Third, the district court stated not only that, in its opinion, the

sentence for the supervised release violation “should be” a

consecutive penalty but that such a penalty was “appropriate.” 

Id. at 5. 

This is the language of discretion, not application of

mandatory requirements. Neither the district court’s accurate

recitation of the mandatory formulation in the policy statement,

nor its reference to the Guidelines as a guide, see Gall v. United

States, 522 U.S. 38, 46 (2007), vitiate the court’s expressions of

individual determination based on discretionary sentencing
6

authority. 

To the extent Kenny suggests our decision in Head, 817

F.3d 354, requires a different conclusion, he still fails to

demonstrate plain error. In Head, the district court stated that

“the [G]uidelines do require that [the sentence for violating

supervised release] be consecutive unless I find a basis for a

departure,” id. at 357. Kenny views the reference to “departure”

and consideration of the defendant’s “really poor prior record”

to be a clear signal that the district court in Head understood that

it had discretion, whereas he maintains there was no such signal

in his case. But this suggests there is a talismanic formulation

for signaling discretion when, in fact, there are multiple ways a

district court can indicate it understands that it has sentencing

discretion and is exercising that discretion. What Kenny ignores

in maintaining that Head controls his case is the different record

in that case. In Head, 817 F.3d at 358–59, the defendant raised

an ex post facto challenge based on the district court’s

application of the incorrect version of the Guidelines where the

correct version did not include a preference for consecutive

sentences. This court found plain error upon concluding that it

was unclear from the record how the district court would have

exercised its discretion had it relied on the correct version of the

Guidelines. See id. at 360–61. By contrast, the district court’s

understanding and intention are sufficiently clear in Kenny’s

case to indicate that the court understood it had and was

exercising sentencing discretion. 

Head, then, neither compels a different result in Kenny’s

case nor requires that a district court say more than it did to

signal that it understood in imposing a 30 months’ consecutive

sentence on Kenny it had and was exercising discretionary

authority. Kenny’s reliance on United States v. Terrell, 696

F.3d 1257, 1261–64 (D.C. Cir. 2012), another ex post facto case,

is also unavailing. Unlike in Terrell, the district court’s
7

statement at Kenny’s revocation hearing did not indicate an

erroneous understanding that the Guidelines were mandatory

unless the court could find “compelling reasons” to depart. Id.

at 1262. In sum, Kenny fails to show there was either “obvious”

error, Olano, 507 U.S. at 734, by the district court at the

revocation hearing or a “reasonable likelihood” that error

affected the district court’s imposition of Kenny’s consecutive

sentence, Gomez, 431 F.3d at 822. 

III.

As for Kenny’s remaining contention, “there is no

requirement that sentencing courts expressly list or discuss every

Section 3553(a) factor at the sentencing hearing.” United States

v. Knight, 824 F.3d 1105, 1110 (D.C. Cir. 2016). Kenny does

not suggest this standard is inapplicable to revocation of

supervised release. As Kenny also has not “asserted the import

of a particular § 3553(a) factor, nothing in the statute requires

the court to explain sua sponte why it did not find that factor

relevant to its discretionary decision.” Simpson, 430 F.3d at

1187. Kenny never sought further explanation by the district

court of its reasoning. United States v. Pinnick, 47 F.3d 434,

439 (D.C. Cir. 1995); see also United States v. Brinson-Scott,

714 F.3d 616, 625–26 (D.C. Cir. 2013) (quoting Rita v. United

States, 551 U.S. 338, 356–57 (2007)). 

Furthermore, the record is not as barren as Kenny

postulates. Kenny acknowledges that one of the statutory

factors — the “advisory sentencing range” — was discussed at

the revocation hearing. Appellant’s Br. 6; see 18 U.S.C.

§ 3553(a)(4). Given the hearing record, “it is impossible to

conclude that the District Court did not consider” that factor “as

part of the mix of considerations.” Knight, 824 F.3d at 1110. 

That another factor — “the nature and circumstances of the

offense and the history and characteristics of the defendant,” 18
8

U.S.C. § 3553(a)(1) — was considered at the hearing is evident

not only from the district court’s reliance on the prosecutor’s

recitation of Kenny’s drug history in opposing dismissal, but

from the prosecutor’s acknowledgment at the hearing that

Kenny’s Maryland arrest was his first infraction on supervised

release and defense counsel’s discussion of Kenny’s family and

employment history. Additionally, the district court considered

still another factor — the need to “afford adequate deterrence,”

18 U.S.C. § 3553(a)(2)(B) — referring to Kenny’s “continued

sale of drugs” and warning him of the severe consequences of

another offense. Rev. Hr’g Tr. 6. 

Accordingly, we affirm the judgment on revocation.