NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0207n.06 No. 10-3826/10-3827 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff - Appellee ,

v. J ASON EDDY , Def endant - Appellant.

______________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O OP INION

Before: BOGG S and WHITE , Circuit Judges; BERTEL SMAN, Distr ict Judge. *

HELE NE N. WHI TE , C ir c ui t J ud g e . D e f e n d a n t- A p p e ll a n t Jason Eddy appea ls the twenty

one-month sentenc e imposed for violating the terms of his probation. He raises sever al proce dural and substantive rea sonablene ss challeng es, including that the dist ri ct co u rt did not appre ciate its discretion to impose a c oncurr ent sentenc e for the violations. W e REMAND for r esente ncing

. I. On Dec ember 15, 2008, Eddy pleade d g uilty to a single count of d i s tributing a controlled substance, 21 U.S.C. § 841(a) (1) and (b)( 1)(C), based on Eddy ’s sale of .86 g rams of cra ck coca ine

on J une 18, 2007. The district court sentenc ed E d d y t o t h ree y ear s’ probation, with the specia l conditions that Eddy participa te in a drug -treatment prog ram and, for the first six months, a L ocation

The Honora

ble Wil liam O. Be rtelsman, United States District J udg e for the Easter n * District of Ke ntucky , sitti ng by desig nation.Monitoring Prog ram (“ L MP”). On April 21, 2009, two months after Eddy was sente nced, he was indicted for a new, more serious offe nse: conspirac y to distribute and possess with intent to distribute 50 or more g rams of coca ine base, 21 U.S.C. §§ 846, 841(a) (1), and 841(b)( 1)(B ). After his arr est

on April 22, 2009, Eddy tested positive for coca ine use. On April 23, 2009, the probation office filed

a probation-violation repor t in Eddy ’s ear lier case . I n addition to cer tain L MP violations, the probation-violation repor t lists the indictment in Eddy ’s conspirac y case , as well as the positive drug test, as new violations. On November 24, 2009, Eddy pleade d g uilty to the conspirac y char g es. The rec ord does not ref lect that Eddy ’s first case was transfer red from the judg e who plac ed Eddy on probation, Judge Wells, to the judge presiding over the conspirac y case , J udg e Boy ko, nor does the docket in Eddy ’s first case ref

lect a schedule d probation-violation hear ing. Eddy filed a sentenc ing memorandum in 1 the conspira cy

case that, among other things, argued for the mandator y minimum of ten y ear s, but made no r efe renc e to the probation violations

. A sentenc ing hear ing took pla ce on J une 17, 2010, befor e J udg e Boy ko, presiding over the conspirac y case . At the beg inning of the proce eding , he stated, “[w]e are here today for sentenc ing and to address the violations .” Tr. at 2 (empha sis added)

. The district court als o co n fi rm ed t h at Eddy ’s counsel had spoken with E ddy about the probation violations. After arguing for the mandatory

minimum , Eddy ’s counse l made the f ollowing state ment: I n terms of the probation violation in the case which was in front of J udg e Wells, we admit the violation contained within that repor t

. I have rea d the rec ommendation from the Probation Depa

rtment that Mr. Eddy

rec eive between 15 and 21 months. We know that that is to be serve d consec utively with his other case . We w ould a sk

The prese ntence investigati o n r e p o r t (“PSR”) in the conspirac y case ref ers in passing 1 to the probation-violation re port filed in Eddy ’s first ca se. PSR at 16. 2this Court that i n l i gh t of all of the circ umstances outlined in the sentenc ing

memorandum and in particula r the substantial amount of time that J ason must serve in prison, that this C ourt only sentenc e him to the minimum of 15 months. Tr. at 4. The probation office r then rea d into the rec ord the violations to which Eddy admitted. At

no point during the sentenc ing proce eding did Eddy object to J udg e Boy ko addre ssing the probation violations. The dist rict court co n s idere d the § 3553(a) fac tors, including Eddy ’s criminal history , and imposed the ten-y ear mandatory -minimum sent en ce for the conspirac y . The district court then turned to the probation violations : Be fore I g et to the rest of the conditions, the violations, we have two g rade A’s, two g rade C’s. The rang e is 15 to 21 under the application, and we have – since we have g rade A vi olations here, first of all, they must be run consec utive, and we’re g oing to put 21 months onto that, so another 21 months for the violations consec utive to the 120 months, for g oing ahea d and d ru g d ea l ing while on community control in Common P leas a

nd awa iting sente ncing in District Court. Id. at 20-21. The district court enter ed judgme nt in both case s four day s later on J une 21, 2010. This
appea l followed.
II. Eddy challeng es the proce dural and substantive rea sonablene ss of his sentenc e. Be cause his
proce dural challeng e has merit, we need not addre ss his s u b s t an t i v e claim. See United States v. Steeby , 350 F. App’ x . 50, 51 (6th Cir. O ct. 29, 2009). We r eview sentenc es – including se ntence s imposed on revoc ation of probation – under an abus e- o f-discr etion standard. See Gall v. United 2
States , 552 U.S. 38,41 (2007); see also United States v. ( Jame s) Johnson , 640 F.3d 195, 201 (6th Cir.

I n the briefs, the parties raised a threshold Bostic issue over which standard of revie w 2

– plain err or or abuse of discretion – appli es t o E ddy ’s arguments involving notice. See United States v. Bostic , 371 F.3d 865, 872 (6th Cir. 2004). Be cause our decision does not turn on the notice que stion, however, the standard of revie w issue is moot. 32011) (re viewing revoc ation of probation for abuse of discretion). A sent en ce is proce durally

unrea sonable “if the district court fails to calc ulate (or improperly calc ulates) the Guidelines rang e,
trea ts the Guidelines as mandatory , fails to c onsider the § 3553(a) fac tors, selec ts a sentenc e based

on clea rly err oneous fac ts, or fails to adeq u at el y ex p l ain the chosen sentenc e.” United States v. Bake r , 559 F.3d 443, 448 (6th Cir. 2009). I n this circ u i t , within-g uidelines sentenc es raise a rebuttable presumption of rea sonablene ss. See United States v. Christ man , 607 F.3d 1110, 1117 (6th Cir. 2010). Eddy attacks the proce dural rea sonablene ss o f h i s s entence from two ang les. First, Eddy contends that he did not have advanc e written notice of the probation-r evocation hear ing and, rela tedly , that J udg e Boy

ko was not authorized to conduct that hear ing beca use Eddy ’s first case had
not been transfe rre d in acc ordanc e with local ru l es . N. D. Ohio Crim. R. 57.9(b). Second, Eddy contends th at t h e district court improperly trea ted the g uidelines as mandatory when it imposed a

consec utive sentenc e for his probation violations. We addre ss Eddy ’s second arg ument first beca

use it controls the dispositi on of the c ase. United States Sentencing Guideline § 7B 1.3(f) provides: Any term of imprisonment imposed upon the revoc ation of probation or supervised rele ase shall be order ed to be serve d consec utively to any sentenc e of imprisonment that the def

en d an t is serving , whether or not the sentenc e of imprisonment being serve d resulted from the conduct that is the basis of the revoc ation of probation or supervised r elea se. 3 Although couche d in mandatory terms, we have he ld that a district court c ommits reve rsible error

Application Note 4 to U .S.S.G. § 7B1.3 states, “[s] imilarly , it is the commission’s 3 rec ommend ati on that any sentenc e of imprisonment for a criminal offense that is imposed afte r revoc ation of probation or supervis ed release be run consec utively to any term of imprisonment impos ed upon re vocation.” 4when it mistakenly believes tha

t the Guidelines compel the imposition of a conse cutive sente nce. United States v. Jack

son , No. 05-6884, 244 Fe d. App’x. 727, 728-29 (6th Cir. Aug

. 9, 2007); United States v. Gree n , 157 F. App’x 853, 858 (6th Cir. 2005); United States v. Sparks , 19 F.3d 1099, 1101 (6th Cir. 1994); accord U nited States v. Gibbs , 506 F.3d 479, 483 ( 6th Cir. 2007). This court addre ssed a simil ar situation in Jack son , an unpublished opinion. I n Jack son , the defe ndant’s counsel stated that “[i] t’s my understanding under 7B1.3( f), any term of imprisonment for this re vocation has to r un consec utive to a

ny other sentenc e. Of course , I ’d like to a rg ue that it would run concur

rent, but if that’s the g uideline and that’s the rules, that’s the rules.” 244 F. App’x. at 728. Neither

the court nor the g overnme nt c orre cted the defe ndant’s counsel’s e rrone ous belief in Jack son . Id. I n s en t en ci n g t h e defe ndant, the district court in Jack son stated that “bec ause of U.S.S.G. § 7B1.3( f), [defendant’ s] term of imprisonment must be serve d consec utively to the state
sentenc e.” Id. (empha sis in orig inal). On appea l, we held the district court’s statement constituted plain err or. The g overnme nt has not distinguished Jack son in any meaning ful way and eff ectively

conce ded at oral argument that the district court’s statement was incorre ct as a matter o f l aw . I nstead, in the g overnme nt’s view, the district court made two statements that demonstrate i t understood its discretion. First, in lay ing out the leg al standard for i m p o s i n g sentenc e, the court mentio n ed the seminal Supreme Court case holding that the Sentencing Guidelines are advisory , United States v. Booke r , 543 U.S. 220, 259 (2005) (seve ri n g an d ex cising the provision of the Sentencing Reform Act of 1984 making the Senten ci n g Guidelines mandatory ). A revie w of the
transcr ipt, howeve r, reve als that the district court was simply setting forth the analy tical framework for a rriving at an a

ppropriate sentenc e:

5Under the United States versus Booke r and the U.S. Sen t en ci ng Commi ssion,

probation does a three -step analy sis: fir s t, d e te r mi n e s th e a

p propriate g uideline rang e; second, identifies any possible g uideline depar tures; and third, deter

m i nes if a n o ng uideline sentenc e, that is, a varia nce can be considere d under the 3553(a) fac tors.

. . . An d Ms. Small has not identified any fac tors that may war rant a depar ture. Tr. at 14- 15. Next, the gove rnment hig hlights the following statement by the district court: Shall I g ive y ou life? Do y ou want to die i n prison, Mr. Eddy ? . . . Be cause befor e we leave here , I could g ive y ou life. Do y ou know that? Do y ou understand that, that I ’m not bound by the 120 months? That’s the mandatory minimum

. What’s it g oing to take to g et it throug h y our hea d to stay out of trouble? Id

. at 19-20. Ba sed on this statement combined with the ref ere nce to Booke r , the g overnme nt arg ues

weakly , “[i] t follows that, if the court understood its discretion to impose g reater than the 120-month mandatory

minimum sentenc e on the drug conspirac y offe nse, the court also understood it ha d the discretion to impose either co n curr ent or consec utive sentenc es on the probation violation.” Appellee ’s B r. at 25. This sy llogism lacks logica l forc e. T h e re cord reve als that the di strict court completed its analy sis of the conspirac y sentenc e, stating “[l] et’s g o ahea d and sentenc e y ou. All rig ht, Mr. Eddy , it’s the judgme nt of this Court that y ou are committed to the custody of the Bur eau of Prisons for a
term of 120 months.” Tr. at 20. Then , the district court turned to the probation violations from the first case . The district court ref ere nced Booke r at the beg inning of i t s d i s cu s s i o n of the §3553(a) fac tors, not when it was re viewingthe proba tion violations

. The rec ord indicates that t he question whether sentenc es for probation violations must be

serve d consec utively was distinct from the court’s consideration of the § 3553(a) fac tors. Moreove r, Eddy ’s counsel err oneously conce ded that the Guidelines mandated a consec utive sentenc e, and the district court li kewise stated that the s ent en ce s “m u st” be consecutive. Although the g overnme nt

6did state at the sentenc ing hear ing that the Gui delines “re commend” a consec utive sentenc e, this

passing ref

ere nce prec eded the court’s statement and is not sufficie nt to overc ome Eddy ’s counsel’s

conce ssion and the district court’s expli cit statement. The rec ord s u p p o rt s that the district court

err oneously believed Eddy ’s sentenc e must be serve d consec utively , and his sentenc e must there fore be rema nded. Acc ording ly , we need not addre ss Eddy ’s additional proce dural reas o n ablene ss arguments. 4
III. For the fore g oing r easons, we REMAND for r esente ncing

.

Eddy also raises the issue whether t h e written judgme nt in the conspirac y case 4 confor ms to the district court’s oral pronounce ment. Specifica lly , Eddy contends the district court only stated that the twenty -one- month sentenc e for the probation revoc ation would be serve d consec utively to the 120-month sentenc e in the conspirac y case , but the district court order s never

theless made b o th sentenc es consec utive to eac h other. Be cause this opinion rela tes to both order s, howeve r, the district court’s order s in both case s must be modified to be consistent with this opinion. Thus, Eddy ’s ar g ument on this iss ue is moot. 7