United States of America v. Delmain Fannin

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0273n.06
No. 13-3812
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DELMAIN FANNIN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
SOUTHERN DISTRICT OF
OHIO
BEFORE: SUHRHEINRICH, ROGERS, and SUTTON, Circuit Judges.
ROGERS, Circuit Judge. While on supervised release, Delmain Fannin robbed a bank.
As a result, the district court revoked Fannin’s supervised release and sentenced him to 18
months of imprisonment, to be served concurrently with the 84-month prison term imposed
separately for his bank robbery conviction. Fannin challenges the district court’s decision to
impose consecutive sentences, arguing that the court gave no explanation for that decision and
thus appellate review is impossible. Because the district court provided an adequate explanation
for the sentence imposed by making it clear that the court’s reasons were the same for choosing
Fannin’s substantive sentence and for running the two sentences consecutively, the imposition of
consecutive sentences was procedurally reasonable.

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In 2005, Fannin pled guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §922(g) and §924(a)(2), and was sentenced to 84 months of imprisonment
and a three-year term of supervised release. In 2012, while Fannin was on supervised release, he
pled guilty to two counts of bank robbery under 18 U.S.C. § 2113(a), for which he was sentenced
to 84 months of imprisonment and a three-year term of supervised release. On October 9, 2012,
a Petition for Warrant was filed, alleging that Fannin had violated the conditions of his
supervised release by committing a bank robbery.
At his revocation hearing on October 16, 2012, Fannin admitted that the bank robbery
constituted a violation of the conditions of his supervised release. Before imposing Fannin’s
sentence upon revocation of supervised release, the court observed that Fannin’s decision to rob
the bank “obviously wasn't well-reasoned and [] was based upon a constellation of impairments.”
The court noted that “[Fannin’s] actions were based more on impaired judgment than any
intention to commit an act motivated by greed, [but . . . w]hether someone acts to rob a bank
through impaired judgment or greed, the safety of the community is equally at risk. The only
way I know to address this is to follow Dr. [Massimo] De Marchis’s recommendation.” 1 The
district court acknowledged that the policy Guidelines for supervised release violations were
1 The court ordered Dr. De Marchis to render an opinion as to Fannin’s mental status as
well as prognosis and treatment for any mental status found. The report from Dr. De Marchis’s
mental status evaluation of April 29, 2013, is not in the record, but was discussed by the parties
via teleconference and at Fannin’s sentencing hearing. Fannin’s counsel agreed with Dr. De
Marchis’s finding that Fannin has a history of engaging in co-dependent relationships, that such
co-dependency led him down a “dangerous path,” and that counseling to address his anger
management and co-dependencies might return Fannin to the “path to make the right decisions.”

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“advisory only,” and reviewed the factors of sentencing set forth in 18 U.S.C. § 3553(a). The
court stated:
I believe the safety of the community is at risk from this Defendant. I believe the
public’s interest in fair punishment, in rehabilitation, and in deterrence has been
considered and will be addressed by the Court and I have also considered the need
to avoid unwanted disparities in the sentence to be imposed on this Defendant as
opposed to others similarly situated who have committed similar crimes in the
future.
The district court found that Fannin had violated his supervised release, that the
violations were Grade A violations, that Fannin’s criminal history category was VI, and that the
advisory sentencing range was 33–41 months with a 24-month maximum. “With all of that in
mind,” the district court revoked Fannin’s supervised release and sentenced him to 18 months of
imprisonment, to run consecutively to the 84-month sentence imposed on the underlying bank
robbery conviction. The district court then said: “For the reasons that the Court has stated, it is
the order of this Court that the 18-month sentence be run consecutively to or after the 84-month
sentence imposed [for the bank robbery conviction].” On appeal, Fannin challenges only the
adequacy of the district court’s explanation for its decision to impose consecutive sentences.
The district court did not plainly err in simultaneously explaining the reasons for the
sentence and for making the sentence consecutive. We review only for plain error because
Fannin’s counsel did not object when presented with the Bostic question. See United States v.
Vonner, 516 F.3d 382, 385 (6th Cir. 2008). “When a defendant is subject to an undischarged
sentence of imprisonment, the district court generally has authority to impose a term of
imprisonment on the current offense to run concurrently with or consecutively to the prior

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undischarged term.” United States v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011) (citing 18
U.S.C. § 3584(a)). In exercising that authority, the district court must consider the factors listed
in 18 U.S.C. § 3553(a), including any applicable Guidelines or policy statements issued by the
Sentencing Commission. Id. (citing 18 U.S.C. § 3584(b)).
The policy statement in U.S.S.G. § 7B1.3(f) provides that:
Any term of imprisonment imposed upon the revocation of . . . supervised release
shall be ordered to be served consecutively to any sentence of imprisonment that
the defendant is serving, whether or not the sentence of imprisonment being
served resulted from the conduct that is the basis of the revocation of . . .
supervised release.
U.S.S.G. § 7B1.3(f). Although not binding, “the district court must consider § 7B1.3(f) when it
is applicable and may exercise its discretion to apply it when determining whether to impose a
consecutive sentence.” Johnson, 640 F.3d at 208. In addition, Application Note 4 to U.S.S.G.
§ 7B1.3(f) elaborates:
Subsection (f) provides that any term of imprisonment imposed upon the
revocation of probation or supervised release shall run consecutively to any
sentence of imprisonment being served by the defendant. Similarly, it is the
Commission’s recommendation that any sentence of imprisonment for a criminal
offense that is imposed after revocation of probation or supervised release be run
consecutively to any term of imprisonment imposed upon revocation.
United States Sentencing Commission, Guidelines Manual, § 7B1.3(f), cmt. 1 (Nov. 2013).
Fannin challenges only the adequacy of the district court’s explanation for his consecutive
sentence.
Facing this question under an abuse of discretion standard, this court held in Johnson that
an explanation is sufficient “[w]here, as here, the court makes generally clear the rationale under

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which it has imposed the consecutive sentence.” 640 F.3d at 209 (quoting United States v.
Owens, 159 F.3d 221, 230 (6th Cir.1998)). “There is no requirement that the district court state a
‘specific reason’ for a consecutive sentence.” Id. at 208–09. In Johnson, “[t]he district court’s
determination of the length of Johnson’s sentence and his decision to impose the sentence
consecutively to the undischarged state sentence were intertwined”; likewise, here, the district
court relied upon the same reasoning when imposing Fannin’s substantive sentence and making
the sentence consecutive. See Johnson, 640 F.3d at 208. In Johnson, the district court simply
noted that it “ha[d] the discretion to make the sentence run concurrent or consecutive,” and
indicated that a consecutive sentence was appropriate in light of several § 3553(a) factors, before
ordering Johnson’s federal sentence to be served consecutively to his state sentence. Id. In
Fannin’s case, the district court imposed the sentence consecutively “[f]or the reasons that the
Court has stated,” including a prior evaluation of the § 3553(a) factors as applied to Fannin’s
case. The district court thus did not plainly err in imposing a consecutive sentence.
It is true that in Cochrane we held that a district court’s decision to impose a consecutive
sentence was procedurally unreasonable because it did not provide any rationale for imposing a
consecutive sentence on a supervised release violation. United States v. Cochrane, 702 F.3d
334, 346–47 (6th Cir. 2012). However, Cochrane is distinguishable from this case. First, unlike
in Cochrane, where the standard of review was abuse of discretion, here it is plain error.
Second, unlike in Cochrane, where the defendant’s counsel requested concurrent sentences at the
sentencing hearing, here neither Fannin nor his counsel made such a request. See Cochrane, 702
F.3d at 340. Most importantly, the district court in Cochrane did not indicate that its reasons for

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imposing consecutive sentences were the same as those for which it determined the length of
defendant’s sentence, or indeed provide any rationale whatsoever. By contrast, here the district
court provided exactly the type of explanation that was lacking in Cochrane—an indication that
the reasons for imposing consecutive sentences were the same as those for which it determined
the length of defendant’s sentence. This court in Cochrane explicitly acknowledged that an
explanation is sufficient when the district court “make[s] clear that its reasons for choosing a
substantive sentence and for running two sentences consecutively are the same.” Cochrane, 702
F.3d at 346 (citing Johnson, 640 F.3d at 208). The district court’s reference to its analysis prior
to imposing Fannin’s substantive sentence was adequate under this standard.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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