United States v. Roderick F. Sutton

51 F.3d 274 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Roderick F. SUTTON, Defendant-Appellant. No. 94-1936. United States Court of Appeals, Sixth Circuit. March 24, 1995. Before: JONES, CONTIE and BATCHELDER, Circuit Judges. ORDER [1] The defendant appeals the 24 month consecutive sentence imposed pursuant to his plea of guilty to a charge of conspiracy in violation of 18 U.S.C. Sec. 371. The government has filed a confession of error and moves to remand this case to the district court for resentencing. Counsel for the defendant has submitted a letter stipulating to the remand. [2] At the time of sentencing, the defendant was serving a term of imprisonment pursuant to a state parole violation. The district court rejected the defendant's request for a concurrent sentence and imposed a 24 months term of incarceration, to be served consecutive to the undischarged state sentence. As explained by the government, the district court believed that it lacked discretion to impose a concurrent sentence. Pursuant to 18 U.S.C. Sec. 3584, a district court has discretion to impose a sentence concurrently or consecutively on a defendant who is subject to an undischarged term of imprisonment. United States v. Coleman, 15 F.3d 610, 611 (6th Cir.1994). Insofar as it appears that the district court was unaware of its discretion in this matter, we believe it is appropriate to remand this case to the district court to determine whether a concurrent or consecutive sentence should be imposed. In making this determination, the district court should consider the applicable guidelines and policy statements in effect at the time of sentencing. United States v. Coleman, 15 F.2d at 612; see also United States v. Hunter, 993 F.2d 127, 129-30 (6th Cir.1993). [3] It therefore is ORDERED that the defendant's sentence is vacated and this matter remanded to the district court for resentencing consistent with the principles set forth above.