No Plain Error from Silence on Anticipated State Concurrency (Absent Request) and No Guidelines Recalculation Required When Statutory Maximum Falls Within the Range

Introduction

In United States v. Eric Kelsey Shepherd, the Sixth Circuit reviewed a 600-month (50-year) federal sentence imposed after Shepherd pleaded guilty to enticing or coercing a minor to participate in the visual depiction of sexually explicit conduct, in violation of 18 U.S.C. § 2251(a). The case arose from an investigation in Lexington, Kentucky, after a school official reported that Shepherd—an adult—was engaging in sexual acts with a twelve-year-old student and recording those acts. A search warrant led to seizure of Shepherd’s phone containing explicit images.

The appeal raised two claimed procedural errors at sentencing:

• Whether the district court miscalculated the advisory Guidelines range by failing to account for the statutory maximum (50 years) when the court described the range as “360 months to life.”
• Whether the district court erred by not ordering the federal sentence to run concurrently with an anticipated state sentence in a pending related case involving the same victim.

Because Shepherd did not preserve these specific objections at sentencing, the Sixth Circuit applied plain-error review and affirmed.

Summary of the Opinion

Analysis

Precedents Cited

The decision is largely structured around procedural-review doctrines and sentencing-framework precedents:

• Gall v. United States (552 U.S. 38 (2007)): Established abuse-of-discretion review for sentencing reasonableness and identified procedural errors, including miscalculating the Guidelines range. The panel uses Gall to frame what counts as procedural error, then shifts to plain-error review because objections were not preserved.
• Holguin- Hernandez v. United States (589 U.S. 169 (2020)): Cited for the principle that unpreserved procedural defects are reviewed for plain error. It supports the panel’s threshold decision on the standard of review.
• United States v. Bostic (371 F.3d 865 (6th Cir. 2004)): The Sixth Circuit’s “Bostic question” rule: after imposing sentence, the court must ask whether there are objections not previously raised; if asked, unraised procedural objections are forfeited and reviewed only for plain error. This case is pivotal because it determines the review standard.
• United States v. Tate (516 F.3d 459 (6th Cir. 2008)) and United States v. Coots (408 F. App'x 968 (6th Cir. 2011)): Used to confirm that the district court’s phrasing here was sufficiently similar to satisfy Bostic.
• Greer v. United States (593 U.S. 503 (2021)) and Puckett v. United States (556 U.S. 129 (2009)): Supply the four-prong plain-error test and underscore how demanding it is. This provides the analytical lens through which both sentencing challenges are rejected.
• United States v. Grant (15 F.4th 452 (6th Cir. 2021)) and United States v. Russell (423 F. App'x 562 (6th Cir. 2011)): Support the proposition that a district court may calculate the Guidelines range and then apply the statutory maximum as a constraint; the statutory maximum does not retroactively “change” the Guidelines range when it lies within that range.
• Setser v. United States (566 U.S. 231 (2012)): Confirms district courts have discretion to decide whether federal sentences run concurrent with or consecutive to anticipated state sentences. This is the foundation for analyzing the concurrency issue.
• Beckles v. United States (580 U.S. 256 (2017)) and United States v. Hall (632 F.3d 331 (6th Cir. 2011)): Reinforce that Guidelines provisions (including U.S.S.G. § 5G1.3) are advisory; district courts have discretion in applying them, though they must consider them and explain departures when the issue is properly presented.
• United States v. Gomez (129 F.4th 954 (6th Cir. 2025)): Provides a key two-step requirement when a court “refuse[s] to apply” U.S.S.G. § 5G1.3(c): the court must (1) turn its attention to the guideline and (2) explain why it departed from it. Shepherd invoked this line, but the panel distinguishes it because no one asked the district court to apply § 5G1.3(c) to the pending case.
• Rosales-Mireles v. United States (585 U.S. 129 (2018)), United States v. Kechego (91 F.4th 845 (6th Cir. 2024)), and United States v. Al-Maliki (787 F.3d 784 (6th Cir. 2015)): These cases supply the “plainness” requirement: an error is “plain” only if clear or obvious under settled law; the absence of binding precedent on the precise question often defeats plain-error relief.
• United States v. Jackson (764 F. App'x 506 (6th Cir. 2019)) and United States v. Martin (371 F. App'x 602 (6th Cir. 2010)): Cited as examples involving requests for concurrency and the need for explanation when concurrency is denied—supporting the distinction between “issue raised and denied” versus “issue never raised.”
• United States v. Hubbert (35 F.4th 1068 (7th Cir. 2022)): Used as persuasive authority supporting the conclusion that a court’s failure to specify concurrency/consecutiveness—particularly under plain-error review—does not automatically warrant reversal.

Legal Reasoning

1) Standard of review: Bostic compliance triggers plain-error review

Shepherd attempted to avoid plain-error review by arguing that the district court did not properly solicit objections under United States v. Bostic. The Sixth Circuit rejected that argument, holding the court’s post-sentence inquiry—whether there was “any legal reason” the sentence should not be imposed—functioned as a Bostic question. Because Shepherd did not then raise the two procedural claims advanced on appeal, those claims were forfeited and subject to the stringent four-part plain-error framework from Greer v. United States.

2) Guidelines calculation: statutory maximum as a cap, not a recalculation

On the Guidelines issue, the panel treated Shepherd’s argument as a misunderstanding of how statutory maxima interact with the Guidelines. The district court calculated the advisory range as 360 months to life, then imposed 600 months because § 2251(e) capped the sentence at 50 years.

The Sixth Circuit relied on U.S.S.G. § 5G1.1(c), which instructs that in “any other case” (i.e., where the statutory max does not fall below the Guidelines minimum), a sentence may be imposed within the guideline range so long as it is not greater than the statutory maximum. In other words, a statutory maximum that lies within the guideline range operates as an external ceiling on the sentence the court can impose, but it does not rewrite the Guidelines range itself.

The panel further rejected the contention that the court had to “formally acknowledge” a truncated range top; it was enough that the record showed the court understood it could not exceed 600 months and that the PSR and the parties recognized the cap.

3) Anticipated state sentence: no “plain” error where concurrency was not requested

The concurrency argument implicated three legal layers: (1) statutory discretion under 18 U.S.C. § 3584(a), (2) authority to decide concurrency even as to an anticipated state sentence under Setser v. United States, and (3) advisory guidance under U.S.S.G. § 5G1.3(c) recommending concurrency when the anticipated state sentence will result from “relevant conduct.”

Shepherd relied on Sixth Circuit cases (notably United States v. Gomez) requiring district courts to consider § 5G1.3(c) and explain departures from it. But the panel distinguished those cases because they involved circumstances where the defendant requested concurrency and the district court denied the request—creating an identifiable decision to “refuse to apply” the guideline.

Here, the district court did not address concurrency with the pending state case involving the same victim, and “presumably” did so because no party raised it. Under plain-error review, the question became not whether the district court could have addressed the issue, but whether its omission was “clear or obvious” error in light of settled law. The Sixth Circuit held it was not, emphasizing (via Rosales-Mireles v. United States, United States v. Kechego, and United States v. Al-Maliki) that absent binding precedent squarely requiring a district court to sua sponte decide concurrency with an anticipated state sentence under § 5G1.3(c), the omission cannot be “plain.”

Impact

Although unpublished, the opinion signals two practical rules likely to shape Sixth Circuit sentencing litigation:

• Statutory caps do not necessarily “become” the Guidelines range: When a statutory maximum falls within the advisory range, the court may state the range (including “life” where applicable) and then apply the statutory maximum as the binding cap; defendants should not assume the Guidelines must be verbally reformulated to match the cap unless U.S.S.G. § 5G1.1(a) applies (statutory max below the Guidelines minimum).
• Concurrency with anticipated state sentences is an “ask-and-build-a-record” issue: The decision underscores the importance of requesting concurrency at sentencing and invoking U.S.S.G. § 5G1.3(c) on the record. Without a request, an appellate challenge is likely to fail under plain-error review because “plainness” depends on clearly established law requiring sua sponte action.

More broadly, the opinion reinforces that Bostic compliance meaningfully raises the cost of appellate procedural challenges: once the court asks an adequate “any legal reason/any objections” question, silence can lock defendants into plain-error review.

Complex Concepts Simplified

• Procedural reasonableness: Focuses on the process the sentencing court used (e.g., correct Guidelines calculation, consideration of arguments, explanation), not whether the sentence is “too high” or “too low.”
• Bostic question: A required end-of-sentencing inquiry in the Sixth Circuit designed to flush out objections. If the judge asks it and a party stays silent, later procedural complaints are typically reviewed only for plain error.
• Plain-error review: A demanding appellate standard for unpreserved issues. The defendant must show (1) error, (2) that is clear/obvious, (3) affecting substantial rights (often meaning it likely changed the outcome), and (4) seriously affecting the fairness or integrity of proceedings.
• Guidelines range vs. statutory maximum (U.S.S.G. § 5G1.1): The Guidelines produce an advisory range; statutes impose hard limits. If the statutory maximum is below the Guidelines minimum, the statutory max becomes the guideline sentence (U.S.S.G. § 5G1.1(a)). Otherwise, the statutory max simply caps what may be imposed (U.S.S.G. § 5G1.1(c)).
• Concurrent vs. consecutive sentences (18 U.S.C. § 3584(a)): “Concurrent” means served at the same time; “consecutive” means one after the other. Courts often have discretion to choose, and when sentences are imposed at different times they run consecutively unless the court orders concurrency.
• Anticipated state sentence & U.S.S.G. § 5G1.3(c): Sometimes a defendant will later be sentenced in state court for related conduct. Section 5G1.3(c) recommends concurrency when that future state sentence is expected to be for “relevant conduct” to the federal offense—though the recommendation is advisory after Beckles v. United States.
• Relevant conduct: Conduct related to the offense of conviction that the Guidelines treat as part of the same overall behavior for sentencing purposes (e.g., same victim/episode/series). If conduct is “relevant,” the Guidelines often try to avoid double-counting punishment across separate cases.

Conclusion

United States v. Eric Kelsey Shepherd affirms a statutory-maximum sentence where the district court (1) correctly treated the statutory maximum as a cap rather than a recalculation of the advisory Guidelines range, and (2) did not commit plain error by failing—without prompting—to order concurrency with an anticipated, related state sentence. The opinion’s practical takeaway is procedural: counsel must raise Guidelines-cap framing and § 5G1.3(c) concurrency requests at sentencing (especially after a proper Bostic inquiry) to preserve meaningful appellate review.