United States of America v. Lee Ayers

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2015 Decided July 31, 2015
No. 10-3069
UNITED STATES OF AMERICA ,
APPELLEE
v.
LEE AYERS ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00364)
Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.
John V. Geise, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief was Ronald C. Machen,
Jr., U.S. Attorney at the time the brief was filed, and
Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S.
Attorneys.
Before: BROWN, PILLARD and WILKINS , Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS .

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WILKINS , Circuit Judge:
Federal law disparately treats equal weights of powder
and crack cocaine. The “crack/powder disparity” has been the
subject of numerous lawsuits and policy proposals; it has
reached the Supreme Court and been debated in Congress.
This case presents an apparently novel question: whether a
district court must consider the crack/powder disparity before
deciding whether to assign concurrent or consecutive
sentences to a defendant. The defendant in this case sought to
convince the District Court that it should assign concurrent
sentences in order to account for the difference between the
twelve-year sentence to which he agreed in a plea agreement
and the three to four years that the United States Sentencing
Guidelines would have recommended had he been caught
with powder cocaine instead of crack cocaine. The District
Court was unconvinced, noting, among other things, that
Congress enacted a ten-year mandatory minimum sentence
for this offense, and ordered the defendant’s sentence to run
consecutive to a previously imposed sentence.
The gravamen of the defendant’s challenge on appeal is
that the District Court adopted a constrained view of its
discretion and that this constraint led the District Court to
impose a consecutive rather than a concurrent sentence.
Although we agree that the District Court misinterpreted one
aspect of the statute related to the assignation of concurrent or
consecutive sentences, we find it clear from the record that
this error did not materially affect the District Court’s
decision. We also reject the defendant’s other challenges to
the District Court’s reasoning. We therefore affirm.
I.
In September 2008, Lee Ayers was arrested after a high-
speed chase through residential areas of the District of

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Columbia. The chase began when Metropolitan Police
Department (“MPD”) officers attempted to conduct a traffic
stop of Ayers’s vehicle. Rather than pulling over, Ayers
accelerated in an attempt to flee. He fled for several blocks,
at one point driving the wrong way down a one-way street,
before losing control of his vehicle and crashing. J.A. 17.
A few days later, MPD officers executed a search warrant
for the vehicle. Police found a bag inside the vehicle
containing 98.1 grams of crack cocaine, a Beretta 9mm
handgun, ammunition, a glass cooking pot with cocaine
residue on it, and $3,800 in cash. Police also recovered a
Glock 27 handgun, a scale with cocaine residue on it, zip-lock
bags, and three grams of marijuana. J.A. 18.
A federal grand jury subsequently returned a four-count
indictment against Ayers: one count of possession with intent
to distribute 50 grams or more of cocaine base in violation of
21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii); one count of using,
carrying, and possessing a firearm during a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1); and two counts
of unlawful possession of a firearm and ammunition by a
felon in violation of 18 U.S.C. § 922(g)(1). J.A. 10-12.
Because Ayers had previously been convicted of possession
with intent to distribute cocaine, he was subject to sentencing
enhancements under 21 U.S.C. § 841(b) that could result in a
mandatory minimum of 20 years imprisonment for the drug
charge alone. J.A. 13.
On April 1, 2010, Ayers entered into a Rule 11(c)(1)(C)
plea agreement in which he agreed to a 144-month sentence
for possession with intent to distribute 50 grams or more of
crack cocaine. He also acknowledged that he had possessed
the two firearms and ammunition at the time of his arrest and
conceded that all of the government’s charges were based in

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fact. In exchange, the government agreed to request dismissal
of the three firearm-related counts of the indictment. J.A. 21-
24; see FED. R. CRIM . P. 11(c)(1)(A). The parties also
“agree[d] that [Ayers] may request for the agreed-upon
sentence to run concurrent to any other applicable sentence
[he] may be serving, but that the Government may oppose
such a request.” J.A. 22. This last provision was relevant
because of Ayers’s 2009 conviction in the Superior Court of
the District of Columbia of several counts related to “an urban
warfare-style shootout,” for which he was sentenced to nine
years in prison. J.A. 29-30. Ayers made clear, both at the
plea hearing and in his sentencing memorandum, that he
intended to argue for a concurrent or partially concurrent
sentence based on the crack/powder disparity and changes in
law related to this disparity. J.A. 42-43, 85.
The District Court held a sentencing hearing in July
2010. The only contested issue at the hearing was whether
Ayers’s twelve-year federal sentence should run consecutive
to or concurrent with his nine-year Superior Court sentence.
Ayers argued that a concurrent or partially concurrent
sentence was appropriate in order to account for the
punishment disparity between crack and powder cocaine. The
District Court rejected this argument. In the course of making
its sentencing decision, the District Court concluded that the
law contained a presumption of consecutive sentences for
separate crimes and that assigning fully concurrent sentences
would undercut the ten-year mandatory minimum Ayers faced
for the offense to which he pled guilty. J.A. 127-29. Having
found that the defendant’s history and the circumstances of
the crime justified fully consecutive sentences, the District
Court also rejected Ayers’s request for partially concurrent
sentences.

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Ayers contends that the District Court misinterpreted the
law as expressing a presumption in favor of consecutive
sentences and being incompatible with concurrent sentencing.
He also argues that the District Court wrongly determined that
the parties should have negotiated the question of concurrent
or consecutive sentences as part of the plea agreement and
therefore improperly refused to take into account the
crack/powder disparity. We review his claims in turn.
II.
A.
“Judges have long been understood to have discretion to
select whether the sentences they impose will run
concurrently or consecutively with respect to other sentences
that they impose, or that have been imposed in other
proceedings, including state proceedings.” Setser v. United
States, 132 S. Ct. 1463, 1468 (2012). This discretion is
guided by 18 U.S.C. § 3584(b), which provides that “[t]he
court, in determining whether the terms imposed are to be
ordered to run concurrently or consecutively, shall consider,
as to each offense for which a term of imprisonment is being
imposed, the factors set forth in section 3553(a).” The
§ 3553(a) factors include “the nature and circumstances of the
offense and the history and characteristics of the defendant,”
“the need for the sentence imposed to reflect the seriousness
of . . . and to provide just punishment for the offense,” “the
kinds of sentences available,” and “the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a). When imposing a sentence, a
district court is not required to explicitly address every factor,
see United States v. Simpson, 430 F.3d 1177, 1186-87 (D.C.
Cir. 2005), but a sentencing decision is normally remanded

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where the district court “based its decision on an
impermissible factor” such as a misunderstood statute, United
States v. Dozier, 162 F.3d 120, 128 (D.C. Cir. 1998).
However, “[i]f the party defending the sentence persuades the
court of appeals that the district court would have imposed the
same sentence absent the erroneous factor, then a remand is
not required . . . and the court of appeals may affirm the
sentence.” Williams v. United States, 503 U.S. 193, 203
(1992); see also FED. R. CRIM. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.”).
B.
Ayers argues that the District Court wrongly limited its
discretion by determining that concurrent sentencing ran
counter to a statutory presumption in favor of consecutive
sentencing and would undercut the mandatory minimum
regime. While we agree that the District Court misinterpreted
18 U.S.C § 3584(a) as “hav[ing] embedded in it a
presumption in favor of consecutive sentences for separate
conduct and offenses,” J.A. 127, we conclude that this error
did not sufficiently affect the District Court’s exercise of its
discretion to require remand and resentencing.
Our circuit has not yet considered whether § 3584(a)
creates a presumption in favor of consecutive sentencing.
Other circuits have arrived at conflicting understandings of
the statute. Compare Espinoza v. Sabol, 558 F.3d 83, 92 (1st
Cir. 2009) (“Espinoza was subject to the presumption in
§ 3584(a) that his 1997 sentence was to be served
consecutively to his 1987 sentence.”), and United States v.
Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006) (“When prison
terms for multiple offenses are imposed at different times, the
governing statute encourages consecutive sentencing.”), with

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United States v. Martin, 371 F. App’x 602, 606 n.2 (6th Cir.
2010) (“Insofar as the government is suggesting that the
statute somehow favors consecutive sentences, it is
incorrect.”). Upon review of the statute’s text, statutory
context, and legislative history, we are convinced that
§ 3584(a) addresses only how sentencing orders are to be
interpreted, and not how sentencing decisions are to be made.
“As always, we begin with the text of the statute.”
Limtiaco v. Camacho, 549 U.S. 483, 488 (2007); United
States v. Hite, 769 F.3d 1154, 1160 (D.C. Cir. 2014). In
relevant part, § 3584(a) states that “[m]ultiple terms of
imprisonment imposed at different times run consecutively
unless the court orders that the terms are to run concurrently.”
18 U.S.C. § 3584(a). Although the District Court’s confusion
is understandable, nothing in this language directs a trial court
to presume that imposing a consecutive sentence is the
preferred option. Moreover, unlike other statutes establishing
presumptions, this statute does not expressly indicate that a
presumption applies. Compare id., with, e.g., id. § 1201(b)
(in the context of federal kidnaping statute, “the failure to
release the victim within twenty-four hours after he shall have
been unlawfully seized . . . shall create a rebuttable
presumption that such person has been transported in
interstate or foreign commerce”), and id. § 3142(e)(2) (when
a judicial officer considers whether a violent or repeat
offender should be released pending trial, “a rebuttable
presumption arises that no condition or combination of
conditions will reasonably assure the safety of any other
person and the community if such judicial officer finds that,”
inter alia, the individual was on release pending trial when
the crime occurred). Congress knows how to write a statute
establishing a presumption; we hesitate to find an implied
presumption where Congress has not done so. Cf. Astrue v.

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Ratliff, 560 U.S. 586, 595 (2010); Hardt v. Reliance Standard
Life Ins. Co., 560 U.S. 242, 252 (2010).
The statute’s context reinforces the conclusion that
§ 3584(a) is not meant to include a presumption in favor of
consecutive sentencing. See Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 253 (2009) (“Our conclusions
regarding congressional intent can be confirmed by a statute’s
context.”). Section 3584(b), entitled “Factors to be
considered in imposing concurrent or consecutive terms,”
directs the court to consider the factors listed in § 3553(a).
Neither § 3584(b) nor § 3553(a) sets forth a presumption in
favor of consecutive terms for separate offenses. While
expresio unius est exclusio alterius is not always a useful
interpretive aid, the omission of any language suggesting a
presumption from a statute expressly setting forth the relevant
factors for a court to consider when deciding between
concurrent and consecutive sentences is a strong indicator that
Congress did not intend any such presumption to apply. Cf.
Indep. Ins. Agents of America, Inc. v. Hawke, 211 F.3d 638,
644 (D.C. Cir. 2000).
Though the statutory language provides the answer, we
note that the legislative history is also clear. The Senate
Judiciary Committee Report on the Comprehensive Crime
Control Act of 1984 stated that “[s]ubsection (A) is intended
to be used as a rule of construction in the cases in which the
court is silent as to whether sentences are consecutive or
concurrent, in order to avoid litigation on the subject.” See S.
Rep. No. 98-225, at 127 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3310. This is consistent with the
Supreme Court’s description of § 3584(a). See Setser, 132 S.
Ct. at 1467 (“The first subsection of [§ 3584] . . . says when
concurrent and consecutive sentences may be imposed, and
specifies which of those dispositions will be assumed in

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absence of indication by the sentencing judge . . . .”). In
keeping with the broad discretion vested in trial judges at
sentencing, we hold that § 3584(a) is neutral as to whether
concurrent or consecutive sentences should be imposed.
The question now becomes whether the District Court’s
error in misinterpreting § 3584(a) as establishing a
presumption in favor of consecutive sentencing affected the
District Court’s exercise of its discretion, thereby requiring
the remedy sought by Ayers—remand for a new sentencing
decision. In this case, the District Court gave a lengthy and
detailed explanation for its sentence, after hearing extensive
argument from the parties and reviewing their sentencing
memoranda. Based on a comprehensive review of the
sentencing proceedings, we conclude that the error does not
require remanding for resentencing.
C.
The first order of business for the District Court was to
determine whether to accept the 11(c)(1)(C) plea agreement
for a 144-month term of imprisonment. Both parties accepted
the findings of the presentence investigative report, and based
on the information in that report, the District Court calculated
the Sentencing Guidelines range for Ayers’s conduct. Under
the Sentencing Guidelines, a defendant is given an offense
level and a criminal history score, and the suggested range of
sentences is determined by cross-referencing the two scores
on an index. Ayers pled guilty to possession with intent to
distribute 50 grams or more of cocaine base, which carries an
offense level of 30.1 The crime involved dangerous weapons,
adding two offense levels. Ayers accepted responsibility for
his actions, however, leading to a three-level downward
1 The District Court performed all Guidelines calculations pursuant
to the then-applicable 2010 version of the Guidelines manual.

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adjustment and a total offense level of 29. Because of his
extensive criminal history—he was in fact on supervised
release when he committed his latest crime—Ayers was at the
top of criminal history category 5. The guidelines range was
therefore 140 to 175 months. J.A. 91-93.
The District Court gave both sides an opportunity to
present their arguments with respect to the agreed-upon
sentence. After hearing those arguments, based upon a
variety of factors, the District Court found that the 144 month
agreement was an appropriate sentence. The District Court
noted that Ayers’s crime carried a ten-year mandatory
minimum sentence and that had there been no plea agreement,
the government could have enhanced the drug charge to
change the mandatory minimum to 20 years based upon
Ayers’s prior felony drug conviction, and that Ayers also
would have been subject to a consecutive five-year mandatory
minimum sentence for possessing a firearm during a drug
trafficking offense. In other words, without the plea
agreement, Ayers could have faced a sentence of no less than
25 years if convicted of all of the charges. The District Court
also took into account that the instant offense was a serious
drug offense that involved the possession of multiple firearms
and dangerous flight from the police. In addition, the District
Court noted that Ayers committed this offense while he was
on release for another offense and that Ayers had a lengthy
criminal history that included violent offenses. The District
Court noted that the 144 month agreement was within the
Guidelines range, and that Ayers could have faced much more
time had he not reached this plea agreement with the
government. After consideration of the Section 3553(a)
factors, the District Court concluded that 144 months was an
appropriate sentence and accepted the Rule 11(c)(1)(C) plea
agreement. J.A. 125-26.

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The District Court then turned to the issue of whether to
make the twelve-year federal sentence fully or partially
concurrent to the nine-year Superior Court sentence. Again,
the parties were given an opportunity to present their
arguments. Ayers’s primary argument was that the District
Court should assign fully concurrent sentences to counteract
the unwarranted disparity between sentences for offenses
involving crack and powder cocaine. Ayers pointed out that
the Guidelines calculation for the same amount of powder
cocaine would have been in the range of three to four years,
so he requested that the District Court make his federal
sentence fully concurrent to the Superior Court sentence to
account for the disparity. Ayers also argued that there was a
relationship between the two offenses because some of the
evidence from the Superior Court trial might have been used
in the District Court; in particular, one of the handguns
recovered from Ayers’s vehicle had been used in the shooting
for which he had been sentenced in Superior Court. J.A. 113-
14. The Government’s primary response was that consecutive
sentencing was appropriate because the instant offense was
unrelated to the Superior Court sentence and that “it simply
does not make sense and is not in the interest of justice to
have that Superior Court sentence serve as a way to evade
responsibility in this case.” J.A. 98. The government pointed
out that a first offender pleading to this drug charge would
face no less than the ten-year mandatory minimum sentence,
so a fully concurrent sentence for Ayers, which would result
in only three additional years imprisonment for this offense,
would essentially reward Ayers for his commission of another
serious crime. J.A. 96-8. The government had a powerful
argument, because the Superior Court offense was a truly
serious one, in which Ayers, his brother, and a third
unidentified person engaged in a shootout with unknown
individuals on a residential street—the kind of crime that
terrorizes and destroys communities.

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During the exchange with the parties, the District Court
stated its agreement with the prosecution’s argument that
Section 3584(a) “basically contains a presumption for a
consecutive sentence but leaves it in the discretion of the
district court.” J.A. 102. As we held above, there is no such
presumption, and this statement was error. However,
throughout these arguments, the District Court also
consistently acknowledged that it had full discretion to assign
concurrent or consecutive sentences. See J.A. 97 (rejecting
argument that Sentencing Guidelines contains presumption
that “separate offenses deserve separate punishments”); J.A.
99 (noting that “whether to impose the sentence concurrent or
consecutive, is something that’s completely in my
discretion”); J.A. 127 (“[B]oth sides agree that this decision
on concurrent versus consecutive is at my discretion, and I
think that is true.”).
When rejecting the request to make the federal sentence
fully concurrent, the District Court indicated what it believed
was the “most important[]” factor, and it was not the alleged
presumption. J.A. 128. Instead, the District Court relied on
its conclusion that in this instance running Ayers’s sentences
fully concurrent would frustrate Congress’s intent that
someone committing this offense should serve a mandatory
minimum sentence of ten years. The District Court did not
conclude that Congress required consecutive sentences, or
indicate that it did not have discretion to make the sentences
run concurrently; it instead declined to accept Ayers’s
invitation to use concurrent sentencing as a way around the
statutory mandatory minimum in this instance. The District
Court agreed with the government’s contention that Ayers
should not effectively benefit from having committed another
serious and violent offense, J.A. 128, and this was a proper
exercise of its discretion.

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In rejecting Ayers’s request for partially concurrent
sentences, the District Court did not mention the alleged
presumption at all. Instead, the District Court found that
“there [were] plainly sufficient reasons for a 144-month
consecutive sentence in this case given all the considerations
of circumstances with respect to the defendant.” J.A. 129.
Among these considerations were that Ayers had committed
“an extremely serious crime with significant impact on the
community” involving firearms and “reckless flight by the
defendant that endangered himself and others,” J.A. 123, and
that Ayers “seems to have gotten very limited benefit, if any,
from his prior contact with the criminal justice system,” J.A.
124. The District Court acknowledged that it could be true to
the ten-year mandatory minimum sentence and still make 24
months of the federal sentence concurrent, but it declined to
do so because it ultimately believed that a twelve-year
sentence consecutive to the Superior Court sentence was
appropriate for Ayers, given “his past conduct and the
conduct relating to this offense and considerations of an even
higher sentence” had he not reached the plea agreement. J.A.
129.
Ultimately, while the District Court mentioned a
presumption in favor of consecutive sentences, it also
acknowledged that it had complete discretion to impose
concurrent sentences should it choose to do so, and it clearly
stated that the reasons that persuaded the court not to impose
fully or partially concurrent sentences in this case had nothing
to do with the erroneous presumption. We have held that a
district court can, in its discretion, properly decide not to
impose concurrent sentences if doing so would
inappropriately make the later offense “penalty-free,” United
States v. Heard, 359 F.3d 544, 552 (D.C. Cir. 2004), and the
District Court applied similar reasoning here. Under these
circumstances, the record conclusively demonstrates that the

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District Court would have made the same sentencing decision
even had it properly understood § 3584(a); its
misinterpretation of that provision was therefore harmless and
no remand is necessary.2 See United States v. Godines, 433
F.3d 68, 70 (D.C. Cir. 2006) (“[T]he District Court’s
alternative rationale rendered harmless its [improper]
mandatory application of the Sentencing Guidelines.”); see
also Williams, 503 U.S. at 203 (“[E]rror was harmless . . . [if]
the error did not affect the district court’s selection of the
sentence imposed.”). If we had any doubt as to whether the
erroneous understanding the District Court expressed about
§ 3584(a) affected the District Court’s sentencing decision,
we would not hold the error to be harmless. The District
Court’s detailed and legally sound justifications of the
sentence here, however, satisfy us that the District Court
would re-impose the same sentence on remand.
D.
Ayers further contends that the District Court improperly
determined that the parties either addressed or should have
addressed the issue of whether the federal sentence would run
consecutive to or concurrent with the Superior Court
sentence, and that the District Court failed to properly
understand the scope of its discretion as allowing the
consideration of the crack/powder disparity in making the
concurrent versus consecutive determination. The record
abundantly refutes the first contention. While the District
Court suggested that “all of this seems . . . to be something
2 Because we conclude that any error was harmless, we need not
consider the Government’s argument that Ayers failed to preserve
for appeal the argument that § 3584(a) does not contain a
presumption in favor of consecutive sentences and that the District
Court’s interpretation of the statute should be reviewed only for
plain error.

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that should have been discussed in entering into the plea and
deciding . . . the appropriate sentence,” J.A. 106, as shown
above, the District Court made clear on multiple occasions
that it understood that it had discretion to make the concurrent
versus consecutive determination.
As to the second contention, while it is well settled that
mitigating the disparity between the Guidelines range for
crack and powder cocaine is a relevant sentencing
consideration under § 3553(a), see Kimbrough v. United
States, 552 U.S. 85, 110 (2007); United States v. Pickett, 475
F.3d 1347, 1354-56 (D.C. Cir. 2007), the record amply
demonstrates that the District Court was well aware of that
factor; indeed, the District Court repeatedly mentioned the
need to consider adjusting for the disparity in the Guidelines
between crack and powder cocaine while determining an
appropriate sentence. See J.A. 95, 101, 106-07, 110, 127-28.
The record also shows that District Court was mindful of its
obligation, pursuant to 18 U.S.C. § 3553(a)(6), to avoid
unwarranted sentencing disparities among similarly situated
defendants. J.A. 99-100. The District Court was concerned
that the fact that Ayers could not point to any instances in
which a sentencing court used concurrent sentences to
mitigate the crack/powder differences raised the specter of
creating such an unwarranted disparity, since concurrent
sentences “d[id] not appear . . . to be a common way to
address that issue.” J.A. 127-28. The potential for creating
unwarranted disparity among similarly situated defendants
was highlighted because Ayers’s brother, who was convicted
as a codefendant in the Superior Court case and who also had
been sentenced for a separate federal crack possession
offense, received a federal sentence that was fully consecutive
with his Superior Court sentence. J.A. 117. All in all, the
record shows that the District Court did not improperly limit
its discretion by concluding that it could not consider the

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crack/powder disparity; it instead decided that it would not
address the crack/powder disparity through concurrent
sentencing. This decision was well within the “wide
discretion” afforded to the district courts in assigning
sentences. Paroline v. United States, 134 S. Ct. 1710, 1729
(2014). While there may be circumstances in which it would
be an abuse of discretion for a district court judge to refuse to
make a federal sentence fully or partially concurrent to
account for the crack/powder disparity, Ayers has not shown
that it was necessary to do so here.
III.
The District Court considered the appropriate factors in
determining whether Ayers’s federal sentence should run
concurrent with or consecutive to his previously imposed
Superior Court sentence. Although the District Court erred by
interpreting 18 U.S.C. § 3584(a) as establishing a
presumption in favor of consecutive sentences, this error was
harmless, as the District Court recognized that it had the
discretion to impose either a consecutive or concurrent
sentence and concluded that a consecutive sentence was
warranted based on factors independent of the supposed
statutory presumption. We therefore affirm the District
Court’s sentencing order.
So ordered.

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