NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0147n.06 No. 11-3898

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. SHAWN F EARS, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: CLAY, COOK , and ROT H, Circuit Judges. * CLAY, Circuit Judge. Def endant Shawn Fe ars was indicted along with twenty -four others in a fifty -nine count indictment for crimes arising out of a conspirac y to distribute cra ck cocaine. After pleading g uilty to conspirac y to possess with the intent to distribute, in violation of 21 U.S.C. § § 8 4 1 (a )(1), 841(b)( 1)(A) , & 846, the district court sentenc ed Def endant to 120 months’ imprisonment on the conspirac y count and 32 months’ imprisonment for violating the terms of his

s u p ervised rele ase to run consec utively

. Def endant appea ls his sentenc e claiming that i t wa s proce durally

unrea sonable. F or the re asons that follow, we AF F IRM Def endant’ s sentence
.

The Honor able Jane R. Roth, Senior Circuit Judge for the U nited States Court of Appea ls * for the T hird Circuit, sitti ng by desig nation.No. 11-3898 BACK GR OUND I n 1992, Def

endant Shawn Fe ars pleade d g uilty to a fede ral coca ine distribution offe nse. For that crime, Fe ars was sentenc ed to 240 months’ imprisonment followed by ten y ear s of supervised rele ase. H e wa s relea sed fr om prison in 2008 and beg an his ten-y ear term of supe rvised re lease

. On Marc h 2, 2011, a fede ral g rand jury for the Norther n District of Ohio indicted Def endant, char g ing him with one count of conspirac y to possess with the intent to distribute five kilogr ams or

more of coca ine and/or fifty g rams or more of coca ine base, in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(A) , & 846; one count of conspirac y to possess with the intent to distribute and conspirac y to distribute five kilogr ams or more of coca ine, in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(A) , & 846; one count of attempted possession with the intent to distribute f ive hundred g rams or more of coca ine, in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(A) , & 846; a nd thirteen counts of use of a communication fac ility to fac ilitate a drug traff icking offe nse, in violation o f 21 U.S.C. § 843(b). Def endant pleade d g uilty to conspirac y to possess with the intent to distribute coca ine. The district court sentenc ed Def

endant to 120 months’ imprisonment for the conspirac y count and 32 months’ imprisonment for violating the ter m s o f h is supervised rele ase with the two sentenc es to run

consec utively

to one another

. STANDARD OF REVIEW We g ener ally revie w sentenc es for “re asonable ness under an abuse of discretion standard,”

ev al u at i n g both the proce dural and substantive rea sonablene ss of the sentenc e. United States v. Brown , 579 F.3d 6 7 2 , 677 (6th Cir. 2009). I n doing so, we revie w the district court’s leg al conclusions de novo and its finding s of fac t for clea r err or. Id

. Howeve r, wher e, as here , a defe ndant

2No. 11-3898

fails to object to his sentenc e, revie w is limit ed to plain err or. United States v. Herrera- Zuniga , 571 F.3d 568, 589 (6th Cir. 2009); see also Fe d. R. Crim. P. 5 2 (b ). P l ai n err or require s that the defe ndant show (1) err or, (2) that is clea r or obvious, and (3) that aff ects his “substantial rig hts”; (4) if those elements are satisfied, this Court may exercise its discretion to reme dy the er ro r if it “ser iously aff

ects the fairne ss, i n t egr i t y o r public reputation of judicial proce eding s.” Puck ett v. United States , 556 U.S. 129, 135 (2009). DISCUSSIO N Def endant argues that the district court was proce durally unrea sonable in sentenc ing him for two rea sons. First, he claims that the district court err ed in sentenc ing him to consec utive terms of imprisonment beca

use the district court treated the policy statement in United States S en t en cing Guidelines Manua l section 7B1.3( f) a s mandatory . Second, he claims that the district court fa iled to adequately

justify the conse cutive sente nces. 1. U.S.S.G. § 7B1.3(f) Section 7B1.3( f) contains the policy statement that “[a]n y term of imprisonment imposed upon the revoc ation of probation or supervised rele ase shall be order ed to be se rved c onsecutively to any sentenc e of imprisonment that the defe ndant is se rving .” U.S.S.G. § 7B1.3( f). Thoug h this statement rea ds as mandatory , as with the rest of the Guidelines, it “is not binding on t h e d i s t ri ct court, and construing it to be mandatory would be reve rsible err or.” United States v. Johnson , 640 F. 3 d 1 95, 208 (6th Cir. 2011); see also Herrera- Zuniga , 571 F.3d at 581 (“A fter United States v. Booke r , 543 U.S. 220 (2005), the sentenc ing Guidelines are ‘advisory ’ only .”). I n Def endant’ s case , howeve r, the district cour t did not construe § 7B 1.3(f) as mandatory
.

3No. 11-3898

Def endant attempts to cher

ry -pick a few statements by the district court to support his claim. Def endant first points to the district c ourt’s statement that Def endant’ s g uilty plea would “expose[ him] to additional prison time” for violation of supervised rele ase. Fa r from showing that the district court believed that any supervised- rele ase sentenc e had to be run consec utive, this sta t em en t was intended to inform Def

endant of the fac t that by pleading g uilty to the conspirac y char g e, he would also be violating the terms of his prior c ase’ s supervised r elea se. Def endant ne x t points t o this ex chang e betwe en the pr osecutor a nd the district court. PROS ECUTOR: [Defenda nt] is in violation of his supervised rele ase, and althoug h I d o n ’t rec all g etting the officia l - - if an officia l notification violation came out. I think he’s exposed to about a y ear and a half to two y ear s, I think , as a result of that violation. I cer

tainly defe r to the expert here , an d I b eli eve that that has to be c onsecutive, if I rec all corr ectly

. THE COURT: Correc t. I t looks like his rang e rig ht now is 27 to 33 [months’

imprisonment]

. Def endant contends th at t h i s s h o ws that the district court ag ree d with the prosec utor that the sentenc es had to be consec utive. Contrary to Def endant’ s contention, howeve r, the district court was not ag ree ing with that aspec t of the statement. The district was instead corr ecting the prosec utor that the supervised- rele ase violation exposed Def endant not to “about a y ear and a half to two y ear s” but rathe r to “27 to 33” months. Our conclusion that the district court did not treat U.S.S.G. § 7B1.3( f) as mandatory is further bolstered when the entirety of the sentenc ing hear ing is considere d. At various times, the district court discusses the adv is o r y nature of the Guidelines and its discretion in deter mining the appropr iate

4No. 11-3898

sentenc e. There fore , we do n o t fi n d that the district court treated Guidelines section 7B1.3( f) as mandatory

in sentencingDef

endant. 2. Justif

ication for Consecutive Sentence s Def endant next argues that his sentenc e was proce durally unrea sonable beca use the district court failed to a dequate ly justify the consec utive sentenc es. I n Rita v. United States , 551 U.S. 338 (2007), the Supreme Court mandated that a sentenc ing j udg e “set forth enoug h to satisfy the appellate court that he has considere d the parties’ arguments and has a rea soned basis for exercising his own leg al decisionmaking authority .” Id. at 356. We have rec ently elabor ated on what a district court must do in the context of consecutive se ntence s. I n order to ensure the ability for “mea ningf ul appellate revie w,” we held in United States v. Cochrane , 702 F.3d 334 (6th Cir. 2012), that “a district court must indicate on the rec ord its rationale [ for imposing consec utive sentenc es], either expressly or by ref ere nce to a discussion of re l ev an t considerations contained elsewhe re.” Id

. at 3 4 6

. S p ecifically , we stated, “What the di strict court may not do is sa

y nothing at all” with respe ct to the consec utive nature of the sentenc es, id ., which is what the dis t rict court did here

. Although the district court listed the § 3553(a) fac tors and discussed eac h aspec t of the prese ntence repor t, there is not h i n g t y i n g these discussions to the

consec utive nature of the s en t en ce imposed, rathe r than to the rationale for the leng th of the conspirac y sentenc e. There fore , we conclude that the d i s t ri ct court committed Cochrane err or in failing to “make ‘g ener ally clea r the rationale u

n d e r wh ic h it has imposed the consec utive sentenc e.’” Cochrane , 702 F.3d at 346 (quoting United States v. Owens , 159 F.3d 221, 230 ( 6th Cir. 1998)).

5No. 11-3898

Having conclude d that the district court err ed, we next turn to the three additional prong s of plain err or review that Def endant must prove in o rd er to war rant rever sal. First is the questi on of whether the err or was clea r or o b v i o u s. Although Cochrane came down afte r the district court imposed its sentenc e on Def endant, we have held that for the purposes of plain err or revie w the err or must be “plain under curr ent law,” which is “the law that exis ts at the time of revie w.” United States

v. Crosgrove , 637 F.3d 64 6 , 6 5 6

– 5 7 (6th Cir. 2011). There fore , beca use the district court’s explanation was clea

rly insufficient under Cochrane , Def endant has met the second prong of plain

err or revie w. He has, howeve r, failed to make any arg ument with respe ct to the prejudice he suffe red

as a result of this e rror , which he is r equire d to do under the third prong of plain er ror. See United States v. Olano , 507 U.S. 725, 734 (1993) (“I t is the defe ndant rathe r than the Gover nment who bear s the burden of persua s i o n with respe ct to prejudice .”). Where, as here , Def endant rec eived the sentenc e that the Guidelines advised that he shoul d re ceive (i.e., a consec utive one), see U.S.S.G. § 7B1.3( f), we are not persua ded that he was prejudice d by this err or an d wi l l n o t exercise our discretion under plain err or revie w to r emand this c ase for re- sentenc ing. See Puck ett , 556 U.S. at 135. CONCLUSION For the fore g oing r easons, we AF F IRM Def endant’ s sentence
.

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