United States v. Roseshell Hamilton , 583 F. App'x 572 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1482
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Roseshell Hamilton
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: November 10, 2014
Filed: November 18, 2014
[Unpublished]
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Before BYE, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Roseshell Hamilton was sentenced on October 6, 2010, in Arkansas state court,
for delivery and possession of methamphetamine with the intent to deliver. She was
paroled on October 10, 2012, with a parole discharge date of April 27, 2020. She
violated her parole on February 13, 2013, by possessing methamphetamine with
intent to distribute, and on February 20, 2013, the state moved to revoke her state
parole.
Hamilton was indicted in federal court on March 11, 2013, for the actions that
also violated her state parole. Her parole was revoked on May 17, 2013, leading to
a six-year state prison sentence. Hamilton also pleaded guilty in federal court on July
8, 2013, to possession of methamphetamine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). She was sentenced on February 7, 2014, to 120 months’
imprisonment and 3 years’ supervised release.
On appeal, Hamilton contends the district court1 erred by failing to mention
at sentencing whether her federal sentence was to be served concurrently or
consecutively with her state sentence. She failed to raise this objection before the
district court, so we review the district court’s actions for plain error.2 United States
v. Miller, 557 F.3d 910, 916 (8th Cir. 2009) (“Procedural sentencing errors are
forfeited, and therefore may be reviewed only for plain error, if no objection was
raised in the district court.”). “To establish plain error, [the defendant] must prove
that (1) there was error, (2) the error was plain, and (3) the error affected [her]
substantial rights.” Id. “We will exercise our discretion to correct such an error only
if the error seriously affects the fairness, integrity, or public reputation of judicial
1
The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
2
Hamilton’s attorney did mention at sentencing that Hamilton “has a state
charge in which she has been sentenced, and I believe she’s been sentenced first in
that case, so I guess the state has her first. So she’s getting this punishment that you
will affix today, plus some punishment the state’s given to her. I would ask the Court
to take those things into consideration as it – as it sentences her.” Thus, it appears
Hamilton’s attorney understood that Hamilton’s federal sentence would run
consecutive to her state sentence, and he asked the district court to take that “into
consideration” when imposing her sentence.
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proceedings.” Id. (quotation and alteration omitted). “In the sentencing context, an
error was prejudicial only if there is a reasonable probability that the defendant would
have received a lighter sentence but for the error.” Id.
1. Section 5G1.3(b)
Under United States Sentencing Guidelines § 5G1.3(b), a defendant’s federal
sentence should run concurrently to “a term of imprisonment result[ing] from another
offense that is relevant conduct to the instant offense of conviction under . . . § 1B1.3
(Relevant Conduct) and that was the basis for an increase in the offense level for the
instant offense under Chapter Two . . . or Chapter Three.” Thus, to establish the
applicability of § 5G1.3(b), Hamilton must prove that the conduct for which she was
sentenced in state court is relevant conduct to the federal offense and resulted in an
increase to her federal sentence under the specified Guidelines.
Hamilton is correct that her state revocation of parole was because of her acts
on February 13, 2013, and that her federal indictment, conviction, and sentence were
based on her actions on that date. The fact that Hamilton’s offense conduct
supporting her federal conviction also served as the basis for revoking her state
parole, however, “does not make the state conviction ‘relevant conduct’ to the federal
conviction for purposes of section 5G1.3(b).” United States v. Jones, 628 F.3d 1044,
1049 (8th Cir. 2011); see also United States v. Woods, 717 F.3d 654, 657–58 (8th
Cir. 2013); United States v. Broadnax, 536 F.3d 695, 702 (7th Cir. 2008); United
States v. Contreras-Martinez, 409 F.3d 1236, 1239–40 (10th Cir. 2005); United
States v. Fifield, 432 F.3d 1056, 1062–63 (9th Cir. 2005). In addition, her state
conviction did not increase the offense level for her federal conviction. See USSG
§ 5G1.3(b). The district court did not err by not applying the concurrent sentencing
rules under § 5G1.3(b), because that section does not apply to the facts of Hamilton’s
case.
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2. Section 5G1.3(c)
Under § 5G1.3(c), the district court has discretion to make a defendant’s
sentence run concurrent or consecutive to another undischarged term of
imprisonment. As noted in the commentary to that section, however, “[c]onsistent
with the policy set forth in Application Note 4 and subsection (f) of § 7B1.3
(Revocation of Probation or Supervised Release), the Commission recommends that
the sentence for the instant offense be imposed consecutively to the sentence imposed
for the revocation.” USSG § 5G1.3(c) cmt. n.3(C). Had the district court considered
on the record whether § 5G1.3(c) applied, the express recommendation would have
been to run the sentences consecutively—which is what the district court did in this
case. Thus, even if we assume for purposes of analysis that the district court erred in
not expressly considering and discussing this guideline provision at sentencing,
Hamilton fails to demonstrate that there is a reasonable probability she would have
received a lighter sentence if the district court had done so. See United States v.
Atteberry, 447 F.3d 562, 564 (8th Cir. 2006); see also 18 U.S.C. § 3584(a) (“Multiple
terms of imprisonment imposed at different times run consecutively unless the court
orders that the terms are to run concurrently.”).
For the reasons above, we affirm.
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