from the United States District Court for the District of New
Mexico (D.C. No. 1:15-CR-04302-MCA-1)
Robert, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.
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.
MATHESON, McKAY, and EBEL, Circuit Judges.
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.
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.
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).
STANDARD OF REVIEW
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).
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.
The district court had discretion under 18 U.S.C. § 3584
to impose consecutive sentences notwithstanding U.S.S.G.
§ 5G1.2's ...