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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 . At sentencing, Jackson requested that the district court sentence him on the low end of the Guidelines range and concurrently to his four-year 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 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.


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). Then we consider whether the court’s sentence is reasonable.

Section 5G1.3 of the Sentencing Guidelines governs the imposition of a sentence on a defendant subject to an undischarged term of imprisonment.

The Guideline contains three subsections which provide (in part):

(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 (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.

There is no double counting based on the argument that both Jackson’s state sentence and federal sentence were based in some part on overlapping conduct. 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.

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 discretion to impose a concurrent sentence and 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 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.

The Guidelines contain an application note for U.S.S.G. § 5G1.3(c). That note states:

(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 undis-           charged 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, 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 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. “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). Jackson’s argument warranted 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.

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. But here, where Jackson made a non-frivolous 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.

Accordingly, we VACATE Jackson’s sentence and REMAND for resentencing.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit