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United States v. Lymon

United States Court of Appeals, Tenth Circuit

October 2, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
DAVON LYMON, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CR-04302-MCA-1)

          Marc Robert, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          C. Paige Messec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney and James R.W. Braun, Assistant United States Attorney, on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before MATHESON, McKAY, and EBEL, Circuit Judges.

          EBEL, Circuit Judge.

         Defendant Davon Lymon challenges the procedure by which the district court decided to order the three federal sentences imposed in this case to be consecutive. In particular, although U.S.S.G. § 5G1.2 indicated Lymon's sentences should run concurrently, the district court instead imposed them consecutively, citing 18 U.S.C. § 3584. The court did not procedurally err because the sentencing guidelines are only advisory, the district court considered the guidelines' recommendation before exercising its discretion under § 3584 to order consecutive sentences, and the court adequately explained why it did so. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we, therefore, AFFIRM.

         I. BACKGROUND

         Lymon pled guilty to three offenses charged in the same indictment: selling heroin to an undercover officer on two separate occasions (Counts 1 and 3), and being a previously convicted felon in possession of a gun (Count 2). Using the sentencing guidelines' grouping rules, see U.S.S.G. Ch.3, Pt. D, the district court established a single combined offense level for all three convictions. That offense level led to an advisory sentencing range of 77 to 96 months in prison. Lymon does not object to that starting guideline range, but he does object to the court's ultimate decision to vary upward from the range to a total sentence of 216 months as a result of running the sentences on each of the three counts of conviction largely consecutively instead of concurrently as called for in the guidelines.

         The district court imposed a sentence at the top of that range, ninety-six-months, for each of Lymon's three convictions, see U.S.S.G. § 5G1.2(b), and ordered the sentences for Counts 1 and 2 and part of the sentence for Count 3 to run consecutively, for a total prison sentence of 216 months. In doing so, the district court cited and relied on the statutory provision of 18 U.S.C. § 3584(b). [1]

         II. STANDARD OF REVIEW

         Lymon is challenging the procedural reasonableness of his sentence on grounds that he concedes he did not raise in the district court. Our review, then, is for plain error. See United States v. Wireman, 849 F.3d 956, 961-62 (10th Cir. 2017). "We will find plain error only when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 962 (internal quotation marks omitted). It is Lymon's burden to make this showing. See United States v. Francis, 891 F.3d 888, 899 (10th Cir. 2018).

         III. DISCUSSION

         Lymon's appellate arguments fall into three general categories. Our consideration of these arguments begins and ends with the first plain-error inquiry because we conclude Lymon failed to establish any procedural error.

         A. The district court had discretion under 18 U.S.C. § 3584 to impose consecutive sentences notwithstanding U.S.S.G. § 5G1.2's ...


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