Terse §3553(a) Explanations and Anticipated State Revocation Consecutive Orders: Sixth Circuit Affirms Sentencing Discretion Under Setser and U.S.S.G. §5G1.3(d)

Introduction

In United States v. Clinton Lee Scott, No. 24-5947 (6th Cir. Oct. 28, 2025) (not recommended for publication), the Sixth Circuit affirmed a 240-month sentence—the statutory maximum under 21 U.S.C. § 841(b)(1)(C)—imposed on a defendant who conspired to distribute methamphetamine while serving a Georgia state sentence and while on probation in another Georgia case. The panel rejected two procedural challenges:

that the district court inadequately considered and explained the sentencing factors under 18 U.S.C. § 3553(a); and
that the court erred by ordering the federal sentence to run consecutively to any future state sentence imposed following anticipated probation revocation.

The opinion clarifies two recurring sentencing issues. First, on plain-error review, a district court’s brief explanation can suffice when the mitigation arguments are conceptually simple and the record shows the court considered them. Second, a federal court may order a federal sentence to run consecutively to an anticipated state revocation sentence—even when no state revocation term exists at the time of federal sentencing—and need not conduct a separate § 3553(a) analysis for that concurrency decision, provided the court’s rationale is generally clear and consistent with Sentencing Commission policy statements (notably U.S.S.G. §5G1.3(d) and application note 4(C)) and Supreme Court precedent (Setser v. United States).

Summary of the Opinion

The district court calculated Scott’s advisory guidelines range as 360 months to life, based on a base offense level of 38 (driven by at least 4.5 kilograms of actual methamphetamine), a leadership enhancement, acceptance of responsibility, and a Criminal History Category VI. Because the statutory maximum under § 841(b)(1)(C) is 20 years, U.S.S.G. §5G1.1(a) reduced the operative guideline range to 240 months. The court imposed 240 months and ordered it to run consecutively to any sentence later imposed upon revocation in Scott’s pending Dade County, Georgia probation case.

On appeal, the Sixth Circuit (Judge Ritz) held:

The sentence was not procedurally unreasonable. Applying plain-error review (due to no contemporaneous objection), the court concluded that the district court sufficiently considered the § 3553(a) factors and Scott’s mitigation arguments—even if briefly—consistent with Rita and Vonner, and distinguished the more exacting circumstances in Thomas-Mathews.
The district court did not plainly err in ordering the sentence to run consecutively to any anticipated state probation-revocation sentence. Setser and Sixth Circuit authority (including Mitchell) recognize such discretion. Although the presentence report referenced U.S.S.G. §5G1.3(a), the district court did not rely on it; rather, its authority was consistent with §5G1.3(d) and application note 4(C), which recommend consecutive terms upon revocation. No separate § 3553(a) analysis was required for the consecutivity decision because the court had already addressed § 3553(a) in determining length, and its rationale was clear.

The judgment was affirmed.

Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007) and Rita v. United States, 551 U.S. 338 (2007):
These decisions anchor the appellate framework: sentences are reviewed for procedural and substantive reasonableness, with the district court required to calculate the guidelines, treat them as advisory, and explain the sentence. Rita emphasizes that the explanation need only be sufficient to show reasoned decision-making and that brevity can suffice where the arguments are simple.
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc):
Underpins the Sixth Circuit’s approach to plain-error review of sentencing explanations. Vonner tolerates concise explanations when the record shows the court heard and considered the parties’ arguments. Scott’s case applies Vonner to uphold a tersely explained sentence because the district court addressed the defendant’s main mitigation themes.
United States v. Inman, 666 F.3d 1001 (6th Cir. 2012) (per curiam):
Sets out the four-element plain-error standard. The court applied this standard because Scott did not object contemporaneously to the adequacy of the § 3553(a) explanation or the consecutivity order.
United States v. Thomas-Mathews, 81 F.4th 530 (6th Cir. 2023):
Scott relied on Thomas-Mathews, where the court found plain error due to non-responsiveness to mitigation arguments. The panel distinguishes Thomas-Mathews: unlike there, Scott’s court specifically noted it considered his background, upbringing, opportunities, education, and criminal history—the core of his mitigation plea—showing responsiveness.
United States v. Humphries, No. 23-3411, 2024 WL 1134628 (6th Cir. Mar. 15, 2024); United States v. Verburg, 588 F. App’x 434 (6th Cir. 2014); United States v. Davy, 713 F. App’x 439 (6th Cir. 2017); United States v. Stephens, 393 F. App’x 340 (6th Cir. 2010); United States v. Lapsins, 570 F.3d 758 (6th Cir. 2009); United States v. Mayberry, 540 F.3d 506 (6th Cir. 2008):
Collectively illustrate the Sixth Circuit’s willingness, especially on plain-error review, to affirm sentences where the district court’s § 3553(a) discussion is concise but shows substantive engagement with the parties’ arguments and allows meaningful appellate review.
United States v. Corsey, 723 F.3d 366 (2d Cir. 2013):
Cited by Scott to argue that a statutory-maximum sentence requires independent § 3553(a) analysis even when §5G1.1(a) caps the guideline range. The Sixth Circuit distinguishes Corsey: unlike the district court there, Scott’s district court expressly treated the capped range as advisory, acknowledged its duty to consider § 3553(a), and did so.
Setser v. United States, 566 U.S. 231 (2012):
Controlling Supreme Court authority recognizing a federal court’s discretion to decide whether a federal sentence runs concurrently with or consecutively to an anticipated state sentence not yet imposed. Scott’s case applies Setser directly to probation-revocation scenarios.
United States v. Berry, 565 F.3d 332 (6th Cir. 2009) and United States v. Mitchell, 107 F.4th 534 (6th Cir. 2024):
Berry and Mitchell teach that a court should consider § 3553(a) when deciding concurrency but need not repeat a separate § 3553(a) analysis if it already considered those factors for length; it must simply make its rationale generally clear. Mitchell, a published 2024 decision, endorses ordering federal time to run consecutive to yet-to-be-imposed state sentences and approves concise explanations referencing the separate and indeterminate nature of state proceedings.
United States v. Fox, No. 20-6039, 2021 WL 3747190 (6th Cir. Aug. 25, 2021) and United States v. Moore, 512 F. App’x 590 (6th Cir. 2013):
Both support the proposition that courts may order consecutivity with respect to state supervision violations that may later yield imprisonment, consistent with U.S.S.G. §5G1.3(d) and its commentary.

Legal Reasoning

1) Adequacy of the § 3553(a) Explanation

Because Scott did not object to the sufficiency of the district court’s explanation, the panel applied plain-error review. The court reiterated Rita’s standard: the sentencing judge must say enough to demonstrate that he considered the parties’ arguments and had a reasoned basis—even if briefly, when the arguments are conceptually simple.

Scott’s mitigation pitch emphasized his difficult background, addiction, lack of violent history, and acceptance of responsibility. The district judge expressly addressed those themes, explaining that he combined “the crime that was committed” with Scott’s “background and upbringing, the chances [he’d] had in life, [his] education or lack of education, and [his] criminal past.” The judge acknowledged Scott’s troubled past but spoke to rehabilitation opportunities and the statutory cap that limited the otherwise higher guideline range.

Under Vonner, that level of responsiveness suffices on plain-error review. The court distinguished Thomas-Mathews, where the district judge ignored mitigation arguments about the defendant’s personal history; here, the judge directly referenced the precise mitigation topics Scott raised. Moreover, the court noted that while the discussion of some § 3553(a) factors was cursory, any omissions did not plausibly affect the sentence’s length, particularly given the statutory cap and the judge’s explicit recognition that the guidelines were advisory.

The panel rejected Scott’s reliance on Corsey. Unlike the Corsey record, which suggested the district court may have treated the statutory maximum as per se reasonable due to a pre-cap range exceeding the maximum, the sentencing judge here clearly recognized the capped guideline range as advisory and independently consulted § 3553(a).

2) Ordering Federal Time Consecutive to an Anticipated State Revocation Sentence

The panel next addressed Scott’s challenge to the consecutivity order. The district court had directed that the federal sentence run consecutively to "any revocation sentence that might be imposed" in Scott’s pending Dade County probation case. The presentence report had quoted U.S.S.G. §5G1.3(a), which mandates consecutivity to an undischarged term of imprisonment when the federal offense is committed during service of another sentence. But that provision was tied to Scott’s Whitfield County case, which had concluded before federal sentencing and thus no longer presented an “undischarged” term to which to run the federal time.

Crucially, the district court did not expressly rely on §5G1.3(a). Its authority aligns instead with:

Setser, which allows federal courts to anticipate state sentences when deciding concurrency or consecutivity; and
U.S.S.G. §5G1.3(d) & application note 4(C), in which the Commission recommends that a federal sentence be imposed consecutively to a state sentence imposed upon revocation of probation.

Following Fox, Mitchell, and Moore, the panel reaffirmed that a district court may order a federal sentence to run consecutively to a yet-to-be-imposed state revocation sentence. As to explanation, Berry and Mitchell instruct that a separate § 3553(a) analysis is not required for the concurrency decision where the court already analyzed § 3553(a) for sentence length; the court need only make its rationale “generally clear.” Here, the judge’s acknowledgment that a revocation sentence “might be imposed,” together with the record’s description of Scott’s state supervision status and the Commission’s policy, was enough. No plain error occurred.

Impact

Sentencing explanations on plain-error review: The opinion underscores that in the Sixth Circuit, a succinct § 3553(a) discussion will often withstand plain-error challenges if the district court explicitly engages with the defendant’s principal mitigation arguments and recognizes the guidelines’ advisory status. Defense counsel should object contemporaneously if the explanation seems inadequate; otherwise, Vonner’s deferential plain-error regime is a formidable barrier to relief.
Consecutive orders to anticipated state revocations: The panel doubles down on Setser and its Sixth Circuit applications (notably Mitchell) by blessing consecutive orders directed to as-yet-unimposed state revocation sentences. Practically, district courts in the Sixth Circuit may confidently invoke §5G1.3(d) and application note 4(C) to recommend or order consecutivity in revocation contexts, even if a PSR elsewhere references §5G1.3(a). Clear, concise acknowledgment of the possible state action suffices.
Guidelines cap at the statutory maximum does not end the analysis: While §5G1.1(a) caps the operative guideline range at the statutory maximum, courts remain obligated to consult § 3553(a). This opinion affirms that obligation was met where the court recognizes the advisory nature of the capped range and articulates—however briefly—its consideration of the statutory factors.
Unpublished but harmonized with published authority: Although “not recommended for publication,” the decision tracks published Sixth Circuit precedent (e.g., Mitchell, Berry) and Supreme Court law (Setser). It will be persuasive in district courts and appeals within the circuit, particularly on the interplay between Setser and §5G1.3(d) in probation-revocation settings.
Practice pointers:
- Defense counsel should develop a robust, specific mitigation record and object to inadequate explanations at sentencing to preserve abuse-of-discretion review.
- When concurrency is important, counsel should address §5G1.3(d) and application note 4(C) head-on and distinguish revocation-based policies where appropriate.
- Probation officers drafting PSRs should tailor §5G1.3 discussions to the correct subsection and application notes to avoid confusion between (a) and (d) scenarios.

Complex Concepts Simplified

Procedural reasonableness: On appeal, courts first check whether the sentencing judge followed proper steps: correctly calculated the guideline range, treated it as advisory, considered § 3553(a), relied on accurate facts, and adequately explained the sentence. Only after that do courts review for substantive reasonableness (the overall fairness of the sentence).
Plain-error review: If a defendant fails to object at sentencing, the appellate court will reverse only for an “obvious” error that affected the defendant’s substantial rights and seriously undermined the fairness, integrity, or public reputation of the proceedings. It is a demanding standard, rarely met.
U.S.S.G. §5G1.1(a) (statutory cap): When the guideline range is higher than the statutory maximum, the guideline “range” becomes the statutory maximum. The court still must consider § 3553(a) factors, but it cannot exceed the statutory cap.
U.S.S.G. §5G1.3(a) vs. §5G1.3(d):
- Section 5G1.3(a) applies when the federal offense was committed while serving another sentence and requires that the federal sentence run consecutive to any undischarged portion of that other term.
- Section 5G1.3(d) (and application note 4(C)) addresses other situations, including state revocations, and recommends consecutive terms for sentences imposed upon revocation of probation, parole, or supervised release.
Consecutive vs. concurrent sentences: “Consecutive” means the federal sentence begins after the other sentence ends; “concurrent” means they run at the same time. Under Setser, the federal judge may decide concurrency even with respect to a state sentence that has not yet been imposed.
“Conceptually simple” mitigation arguments: Courts may provide shorter explanations when the arguments (e.g., difficult upbringing, addiction, acceptance of responsibility) are straightforward and widely understood, so long as the record shows the court actually considered them.
Probation revocation: When a defendant violates probation conditions, a state court may revoke probation and impose a term of imprisonment. The Sentencing Commission recommends that a new federal sentence run consecutive to such revocation sentences to recognize the separate breach of trust inherent in supervision violations.

Conclusion

United States v. Scott reinforces two practical and doctrinal points in Sixth Circuit sentencing:

On plain-error review, a district court’s concise § 3553(a) explanation will be upheld if the record makes clear that the judge engaged the defendant’s mitigation case and recognized the advisory status of the guidelines—even when §5G1.1(a) caps the guidelines at the statutory maximum.
District courts retain broad discretion, under Setser and U.S.S.G. §5G1.3(d) & application note 4(C), to order federal sentences to run consecutively to anticipated state probation-revocation sentences without a separate § 3553(a) analysis for concurrency, provided the rationale is generally clear.

Although unpublished, the opinion harmonizes with—and is strengthened by—published circuit law, particularly Mitchell and Berry. It serves as a cautionary note to defense counsel on the importance of timely objections to preserve more favorable standards of review and as a practical guide for district courts crafting clear, concise sentencing explanations and concurrency decisions in cases involving overlapping state supervision and federal prosecutions.