Substantial-Identity Rule for Oral vs. Written Sentences and Minimal § 5G1.3(d) Explanation Under Plain-Error Review

I. Introduction

In United States v. Douglas James Wilmurth (6th Cir. Apr. 17, 2026), the Sixth Circuit affirmed a bottom-of-the-Guidelines sentence that (1) ran consecutively to the defendant’s undischarged Michigan Department of Corrections term and (2) imposed a supervised-release search condition. The appeal raised two recurring sentencing issues: whether the Sentencing Guidelines required concurrency under U.S.S.G. § 5G1.3 and whether minor differences between the district court’s oral pronouncement and the written judgment required correction.

The defendant, a convicted felon, was federally prosecuted after controlled drug buys and a search yielded multiple firearms and large quantities of controlled substances. While on federal bond, he absconded, removed monitoring equipment, and later incurred state breaking-and-entering convictions—creating an “undischarged term” when he returned to federal court for sentencing.

II. Summary of the Opinion

  • Consecutive sentence: The Sixth Circuit held there was no plain error in ordering the federal sentence consecutive to the undischarged state term. The court rejected the argument that U.S.S.G. § 5G1.3(b) applied because the state breaking-and-entering offense was not “relevant conduct” to the federal drug and firearms offenses.
  • Explanation under § 5G1.3(d): Even assuming § 5G1.3(d) governed, the district court did not plainly err by failing to recite the Application Note factors; considering the totality of the record and the adopted presentence report sufficed.
  • Oral vs. written sentence: The court found no discrepancy where the written judgment’s inclusion of “office” in the search condition was substantially identical to the oral directive covering premises where the defendant “lives or works,” and no real conflict existed between the oral and written consecutive-sentence language given the defendant’s undisputed custody status.

III. Analysis

A. Precedents Cited

1. United States v. Sears

United States v. Sears, 32 F.4th 569 (6th Cir. 2022), supplied the governing plain-error framework because Wilmurth did not raise his procedural sentencing objections below. The panel relied on Sears for the four-part test and the principle that plain error is reserved for “exceptional circumstances.”

2. Gall v. United States

Gall v. United States, 552 U.S. 38 (2007), anchored the general standard of review for sentencing: appellate review for reasonableness under an abuse-of-discretion standard. The Sixth Circuit used Gall (via Sears) to situate its procedural-reasonableness inquiry, even though the claim ultimately turned on plain-error forfeiture.

3. United States v. Potts

United States v. Potts, 947 F.3d 357 (6th Cir. 2020), played two roles:

  • It provided the articulation of procedural-reasonableness review (how the sentence was calculated and explained).
  • It supplied the key rule for § 5G1.3(d): a district court need not conduct a “separate recitation” of the Guideline provision or Application Note 4(A) factors so long as the rationale for consecutive sentencing is generally clear from the record (including by reference to the PSR).

4. United States v. Mitchell

United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024), was the most direct comparator. Mitchell reiterated Potts’s “totality of the record” approach for reviewing consecutive-sentence decisions under § 5G1.3(d) and emphasized that adoption of a PSR describing the undischarged term can be enough. The Wilmurth panel applied Mitchell to hold that explicit acknowledgment of the undischarged state sentence plus adoption of the PSR supported consecutiveness.

5. United States v. Booker

United States v. Booker, 994 F.3d 591 (6th Cir. 2021), controlled the oral-versus-written issue. Booker recognizes that while an oral pronouncement ordinarily governs, there is no reversible discrepancy when the written judgment uses different language to impose substantially identical requirements. Wilmurth extends that logic to a search condition where “office” in writing was deemed functionally encompassed by the oral condition addressing premises where the defendant “works.”

B. Legal Reasoning

1. Why § 5G1.3(b) did not apply

Wilmurth’s primary theory was that his undischarged state sentence “resulted from” relevant conduct to the federal case, triggering § 5G1.3(b) (which can require concurrency and an adjustment for time served). The Sixth Circuit rejected this as a misreading of the PSR: the PSR’s obstruction-of-justice discussion described how absconding and subsequent state custody impeded the federal process; it did not convert the separate breaking-and-entering offense into “relevant conduct” for the earlier federal drug/firearms offenses.

The panel’s reasoning reflects an important distinction: conduct that complicates or delays a prosecution (supporting an obstruction enhancement) is not automatically “relevant conduct” that becomes part of the same offense behavior for § 5G1.3(b) purposes.

2. Adequacy of explanation under § 5G1.3(d) and Application Note 4(A)

Wilmurth alternatively argued that even under § 5G1.3(d), the district court failed to consider Application Note 4(A)’s factors (including the 18 U.S.C. § 3553(a) factors, the type/length of the undischarged sentence, time served/remaining, and procedural posture).

The Sixth Circuit held the record was sufficient: the district court stated it was aware of the undischarged MDOC terms, considered § 3553(a) in selecting the sentence, and adopted a PSR that set out the state sentence (two years for breaking and entering, imposed Sept. 30, 2024, and still undischarged). Under Mitchell and Potts, that “generally clear” rationale defeats any claim of procedural error—particularly under plain-error review.

3. Oral pronouncement vs. written judgment

On supervised release, the oral condition allowed searches of enumerated items (person/property/house/vehicle/papers/computers/electronic devices) and required warning occupants of premises where he “lives or works,” limited by reasonable suspicion and reasonableness in time/manner. The written condition added “office” but kept the same reasonable-suspicion and reasonableness limitations. Applying United States v. Booker, the panel treated this as “substantially identical” rather than a conflict.

On consecutiveness, the oral pronouncement referenced undischarged terms “within the jurisdiction of the Michigan Department of Corrections,” while the written judgment said “any other undischarged terms.” Because Wilmurth conceded his only undischarged terms were in MDOC, the court found no practical divergence.

C. Impact

  • Reinforces a narrow lane for § 5G1.3(b): Defendants cannot bootstrap unrelated state crimes into “relevant conduct” merely because their later actions affected the federal case procedurally or supported an obstruction enhancement.
  • Confirms low “explanation” demands under § 5G1.3(d) in the Sixth Circuit: Following United States v. Mitchell and United States v. Potts, explicit recitation of Application Note 4(A) is unnecessary if the rationale is apparent from the sentencing record/PSR—especially when the issue is forfeited and reviewed for plain error.
  • Strengthens the “substantial identity” approach to oral/written differences: Minor drafting additions in the written judgment (e.g., “office”) will not require remand when they fall within the functional scope of the oral pronouncement and do not broaden the defendant’s obligations in a meaningful way.
  • Practical appellate lesson: The opinion underscores the steep consequences of failing to object at sentencing; plain-error review makes guideline-application and explanation challenges difficult to win.

IV. Complex Concepts Simplified

  • Undischarged term of imprisonment: A sentence the defendant is still serving (not yet completed) when the federal court imposes its sentence.
  • Consecutive vs. concurrent: “Consecutive” means the federal sentence starts after the other sentence ends; “concurrent” means they run at the same time.
  • Relevant conduct (U.S.S.G. § 1B1.3): Conduct that counts as part of the same overall offense behavior for guideline calculation—typically acts in the same course of conduct/common scheme as the offense of conviction. Not every related or later act qualifies.
  • Obstruction of justice (U.S.S.G. § 3C1.1): A guideline enhancement for willfully impeding the investigation, prosecution, or sentencing of the offense (e.g., absconding, tampering, or other interference). It does not automatically make a new, separate crime “relevant conduct.”
  • Plain error: A demanding appellate standard applied when the defendant did not object in the district court; the defendant must show a clear/obvious error that affected substantial rights and seriously harmed the fairness or integrity of the proceedings.
  • Reasonable suspicion search condition: A supervised-release term permitting probation searches only when there is an objective, articulable basis to suspect a violation and to believe the searched area contains evidence of it, and the search is reasonable in time and manner.

V. Conclusion

United States v. Douglas James Wilmurth solidifies two pragmatic Sixth Circuit sentencing principles: (1) § 5G1.3(b) concurrency is unavailable absent genuine “relevant conduct,” and (2) under § 5G1.3(d), a district court need not separately recite Application Note 4(A) so long as the record (often via the PSR and § 3553(a) discussion) makes the rationale for consecutiveness clear—particularly on plain-error review. It also reaffirms that written judgments may differ in wording from oral pronouncements without requiring remand when the conditions are substantially identical in scope and effect.