United States v. Tyvion Benson , 888 F.3d 1017 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2094
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Tyvion Wanye Benson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 9, 2018
Filed: May 1, 2018
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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Tyvion Wanye Benson pled guilty to conspiracy to violate 18 U.S.C. §
922(g)(1) (felon in possession of a firearm), in violation of 18 U.S.C. § 371. The
district court1 sentenced him to 54 months’ imprisonment to run consecutively to a
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
related, undischarged state sentence. Benson appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
At the time of sentencing, Benson was serving a 60-month state sentence for
possessing a firearm. The state conviction arose from the same conduct as the federal
offense. In the plea for the federal offense, the parties agreed to recommend the
statutory maximum of 60 months. They also recognized that the district court would
decide whether to credit Benson for time served for his related state sentence.
In his sentencing memorandum, Benson requested that his federal sentence run
concurrently with the remainder of his undischarged state sentence. At sentencing,
he did not renew this request. However, he did request credit for time served for his
state sentence. The district court gave him partial credit for time served (6 months).
It sentenced him to 54 months to run consecutively to the undischarged portion of his
state sentence (19 months). Benson did not object. He now appeals.
Benson believes his federal sentence should run concurrently to his
undischarged state sentence. This court reviews “a district court’s decision to impose
a consecutive or concurrent sentence for reasonableness.” United States v.
McDonald, 521 F.3d 975, 980 (8th Cir. 2008).2
2
The government argues this court should review for plain error because
Benson did not object to the consecutive sentence at sentencing. In United States v.
Poe, this court applied plain error review because the defendant “did not raise this
issue before the district court at sentencing.” Poe, 764 F.3d 914, 916 (8th Cir. 2014)
(emphasis added). See United States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003)
(applying plain error review where defendant did not “object at sentencing”)
(emphasis added). But, in United States v Naranjo, this court applied plain error
review because the defendant failed to raise the issue “either in the sentencing
memoranda or at sentencing.” Naranjo, 459 Fed. Appx. 579, 580 (8th Cir. 2012).
Here, the issue is further complicated by the fact that Benson did not object to a
consecutive sentence in his sentencing memorandum. Rather, he only requested a
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A district court may order a federal sentence consecutive to an undischarged
state sentence. 18 U.S.C. § 3584(a) (“[I]f a term of imprisonment is imposed on a
defendant who is already subject to an undischarged term of imprisonment, the terms
may run concurrently or consecutively.”). See Setser v. United States, 566 U.S. 231,
244 (2012) (holding section 3584 applies to state sentences). If unspecified,
“[m]ultiple terms of imprisonment imposed at different times run consecutively.” 18
U.S.C. § 3584(a). In determining whether sentences run concurrently or
consecutively, district court “shall consider . . . the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b).
Benson believes the district court failed to consider the § 3553(a) factors in
imposing a consecutive sentence. This belief has no merit. The district court said:
“This sentence of 54 months, which will be consecutive to the state sentence, I do
find to comply with statutory objectives. I think it’s sufficient but not more than
necessary to accomplish the objectives of justice.” It thus considered the § 3553(a)
factors and explained that a consecutive sentence was necessary “to accomplish the
objectives of justice.” See McDonald, 521 F.3d at 980 (holding the district court was
“well within its broad discretion” in ordering consecutive sentences where the district
court said the sentence was appropriate “under the advisory [G]uidelines” and it
“considered all the other statutory factors”).
Benson argues the consecutive sentence violates U.S.S.G. § 5G1.3(b)(2) which
says that when “a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense of conviction . . . the sentence for the instant offense
shall . . . run concurrently to the remainder of the undischarged term of
concurrent sentence. This court need not decide the issue here.
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imprisonment.” U.S.S.G. § 5G1.3(b)(2). But the guidelines are advisory, and section
5G1.3(b)(2) does not prohibit the district court from exercising its statutory authority
to impose a consecutive sentence. United States v. Martinez Rodriguez, 508 Fed.
Appx. 573, 575 (8th Cir. 2013) (“Section 5G1.3(b) . . . is merely advisory, and the
district court retains statutory authority to impose a partially consecutive sentence.”),
citing 18 U.S.C. § 3584; United States v. Lone Fight, 625 F.3d 523, 525-26 (8th Cir.
2010) (“Even if the guidelines do not recommend that sentences run consecutively,
the district court has broad statutory authority, pursuant to 18 U.S.C. § 3584, to
impose consecutive terms.”).
For the first time in his reply, Benson argues the sentence was substantively
unreasonable. This argument is waived. Jenkins v. Winter, 540 F.3d 742, 751 (8th
Cir. 2008) (“This court does not consider issues raised for the first time on appeal in
a reply brief unless the appellant gives some reason for failing to raise and brief the
issue in his opening brief.”) (internal quotation marks omitted).
The district court’s decision to impose a consecutive sentence was reasonable.
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The judgment is affirmed.
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