Submitted: April 9, 2018
from United States District Court for the District of
Minnesota - St. Paul
GRUENDER, MELLOY, and BENTON, Circuit Judges.
BENTON, CIRCUIT JUDGE.
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
court sentenced him to 54 months'
imprisonment to run consecutively to a related, undischarged
state sentence. Benson appeals. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
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.
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
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.
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).
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").
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 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
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).
district court's decision to impose a consecutive