Submitted: May 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
RILEY and BEAM, Circuit Judges, and ROSSITER,  District
ROSSITER, District Judge.
Lee Davis ("Davis") appeals from the district
court's decision to impose a 210-month prison
sentence and recommend that his federal sentence be served
consecutively to potential future state court sentences. For
the reasons stated below, we affirm Davis's sentence.
and 2013, Davis was convicted in Iowa state court of numerous
crimes, including one count of identity theft, one count of
burglary, two counts of theft, and ten counts of forgery. On
February 4, 2015, an Iowa state court sentenced Davis to
suspended sentences for all of those crimes and placed him on
being indicted in federal court on methamphetamine charges,
Davis pled guilty on November 16, 2016 to Attempted
Manufacture and Aiding and Abetting the Manufacture of
Methamphetamine. Davis was sentenced on April 12, 2016. At
the time of sentencing, probation-revocation proceedings were
pending in Iowa state court based on the methamphetamine
arrest. After discussing the 18 U.S.C. § 3553(a)
factors, the district court noted that state-court probation
revocation proceedings were pending but specifically stated,
"I did not consider the pending cases in deciding on a
disposition." The district court sentenced Davis to 210
months in prison, recommending to the Bureau of Prisons that
the sentence be served consecutively to any term of state
imprisonment resulting from the probation revocation.
clear that the district court has the discretion to
"order that [Davis's] sentence run consecutively to
his anticipated state sentence in the probation revocation
proceeding." Setser v. United States, 566 U.S.
231, 244-45 (2012). This case presents the novel issue of
whether it is error for a district court to explicitly not
consider the possibility of a state court sentence when
ordering that a federal sentence be consecutive to any
possible state-court sentence.
argues his sentence is substantively unreasonable because the
district court failed to consider the potential state prison
time. The government claims that Davis's argument is
really one of procedural error. After careful review, we conclude
the district court neither procedurally erred in determining
Davis's sentence nor imposed a substantively unreasonable
Standards of Review
Davis failed to object to any procedural error, we review for
plain error. United States v. Cottrell, 853 F.3d
459, 462 (8th Cir. 2017). "To establish plain error, [a
defendant] must prove (1) there was error, (2) the error was
plain, and (3) the error affected his substantial
rights." Id. (quoting United States v.
Grimes, 702 F.3d 460, 470 (8th Cir. 2012)).
review the substantive unreasonableness of sentences under a
standard akin to an abuse-of-discretion standard, cognizant
that it will be the unusual case when we reverse a district
court sentence-whether within, above, or below the applicable
Guidelines range-as substantively unreasonable."
United States v. Edwards, 820 F.3d 362, 366 (8th
Cir. 2016) (quoting United States v. Sayles, 754
F.3d 564, 567 (8th Cir. 2014)). "A sentence may be
unreasonable if the district court fails to consider a
relevant factor which should have received significant