Submitted: May 13, 2019
from United States District Court for the Southern District
of Iowa - Davenport
BENTON, WOLLMAN, and GRASZ, Circuit Judges.
Dean Bonnell pled guilty to being a felon in possession of
ammunition, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). The district court sentenced him to 84 months'
imprisonment, consecutive to his undischarged state
sentences. He appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
parties agree U.S.S.G. § 5G1.3(d) controls here:
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
§ 5G1.3(d) (emphasis added). See 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.") (emphasis added). Section 5G1.3(d) does
not require a federal sentence to run consecutive to an
undischarged state sentence. See United States v.
Becker, 636 F.3d 402, 408 (8th Cir. 2011) ("[A]
district court has the discretion to impose a sentence
concurrently or consecutively.").
challenges the application of section 5G1.3(d), arguing the
district court erred "in concluding that a consecutive
sentence was required." This court first looks for
procedural error, United States v. Thorne, 896 F.3d
861, 864 (8th Cir. 2018), reviewing "the district
court's decision to impose consecutive sentences for
reasonableness." United States v. Rutherford,
599 F.3d 817, 820 (8th Cir. 2010), citing Gall v. United
States, 552 U.S. 38, 51 (2007). However, Bonnell did not
object to consecutive sentences at sentencing. This court
reviews for plain error. Under plain error review, Bonnell
must show (1) error, (2) that is plain, (3) that affects
substantial rights, and (4) that "seriously affects the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Keller, 413 F.3d
706, 710 (8th Cir. 2005), quoting Johnson v. United
States, 520 U.S. 461, 466-67 (1997).
district court said:
Now, realistically the state system is very, very overcrowded
the way the federal system is so what we see happen typically
is you get a sentence of this size, you get an 84-month
sentence, the states sees that, and they immediately kick you
to the federal government so in practical terms, even if I
run these sentences consecutively, which I think under the
Guidelines and under various case law is the right thing to
do, in practical terms it doesn't mean you are going to
do two complete sentences. I have yet to see the state
actually keep somebody when they know the federal government
wants them and so I do order here, because these were
separate convictions, they're serious convictions, and
your revocation had little to do or was only in part based
upon what happened that brought you to Federal Court, I do
order these sentences to run consecutively, the federal
sentence to run consecutively to the state sentence as noted
in PSR Paragraphs 36, 38, and 39; but in practical terms, Mr.
Bonnell, they're going to almost immediately give you to
the federal prison sentence and so that will discharge your
Now, if that doesn't happen, let me know; but I am
guessing that within a period of months that is what is going
district court did not plainly err. Nothing in the record
indicates the court "concluded that it was required to
impose a consecutive sentence." Rather, it recognized
the Sentencing Guidelines as "advisory," and noted
its options of imposing the sentence to "run
concurrently or consecutively or some combination
thereof." See Rutherford, 599 F.3d at 821
("A sentencing court should consider the Guidelines
calculation as a first step to finding a reasonable
sentence," but not one that mandates a result). The
court reasoned that a consecutive sentence was "the
right thing to do" based on the Guidelines and case law.
As the record shows, the district court properly interpreted
section 5G1.3 as discretionary, not mandatory.
district court's discussion of the prison system in
practical terms also is not error. See Becker, 636
F.3d at 406 (the district court did not plainly err in making
comments that "were merely an academic discussion"
of "what might happen in the state system"). The
district judge acknowledged she was "guessing" when
Bonnell would be released to federal custody. See
id., at 407-08 (no plain error when the sentencing court
recognized the possibility of early parole was a "great
unknown"). "The district court did not base its
decision to impose a consecutive sentence solely on the
possibility of [Bonnell's] early release from state
prison. Moreover, that possibility was not a clearly improper
consideration." See United States v. James, 428
F. Appx. 533, 536 (6th Cir. 2011). In fact, the court
properly considered "[t]he time served on the
undischarged sentence and the time likely to be served before
release," "[t]he fact that the prior undischarged
sentence may have been ...