In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-3226

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

S TANLEY F. JACKSON,
                                            Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
             No. 07 CR 23—John C. Shabaz, Judge.
                        ____________

      A RGUED M AY 15, 2008—D ECIDED O CTOBER 7, 2008
                        ____________



  Before R IPPLE, K ANNE, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Stanley F. Jackson pled guilty
to one count of possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841(a)(1). Jackson was on
probation and supervised release when he committed the
charged offense so he received a four-year sentence from
the state court for violating the terms of his release. The
district court then sentenced Jackson to 170 months’
imprisonment for the drug offense and imposed its sen-
tence to run consecutively to that state sentence.
2                                               No. 07-3226

  Jackson challenges the consecutive nature of his sentence,
arguing that because the state sentence was imposed in
part for conduct that was taken into consideration by
the district court in calculating his Guidelines range, he
was punished excessively for one course of conduct.
Although the district court had the discretion to impose a
consecutive sentence in this case pursuant to Section
5G1.3(c) of the United States Sentencing Guidelines
(“U.S.S.G.”), we are not confident that the district court
considered the relevant factors before doing so. Therefore,
we must remand for resentencing.


                   I. BACKGROUND
  On August 18 and 19, 2006, a confidential informant
cooperating with law enforcement purchased .6 gram
and .3 gram quantities of heroin from Jackson at a gas
station in Madison, Wisconsin. Based on these sales, the
state authorities searched Jackson’s residence on
August 26, 2006, and found more heroin.
  At this time, Jackson was on probation for several bail
jumping convictions and extended supervision with
electronic monitoring for a 2001 felony crack cocaine
distribution conviction, both of which were imposed by
a Wisconsin state court. The state court revoked Jackson’s
probation and supervised release and sentenced him
to four years in prison.
  Jackson subsequently pled guilty in federal court to one
count of knowingly and intentionally possessing heroin
with the intent to distribute. A probation officer prepared
No. 07-3226                                              3

a presentence investigation report (“PSR”) using the
November 2006 Sentencing Guidelines. The probation
officer concluded that Jackson was a career offender
under U.S.S.G. § 4B1.1 because he had two prior felony
convictions for controlled substance offenses. One was
the 2001 state felony crack cocaine conviction and the
other was a 2000 state court conviction for cocaine dis-
tribution. As a career offender, Jackson was assigned a
base offense level of 32 and a criminal history category of
VI. The probation officer subtracted three levels for
acceptance of responsibility, which resulted in a total
offense level of 29. Based on these calculations, the PSR
suggested a sentencing range of 151-188 months’ imprison-
ment. The probation officer noted in the PSR that the
Wisconsin state court had revoked Jackson’s supervised
release and sentenced him to a four-year term of imprison-
ment that he had begun serving.
  Jackson did not object to the PSR. At sentencing, Jackson
requested that the district court sentence him on the low
end of the Guidelines range and concurrently to his four-
year state sentence, noting that had he not qualified as a
career offender, his sentencing range would have been
51 to 63 months’ imprisonment.
  The district court sentenced Jackson to 170 months’
imprisonment, which is in the middle of the advisory
Guidelines range, and stated that the sentence should
be served consecutively to Jackson’s four-year state
sentence. It also imposed three years’ supervised release
to follow the term of imprisonment. Before pronouncing
the sentence, the district court considered the factors set
forth in 18 U.S.C. § 3553(a) and then stated, “Given the
4                                               No. 07-3226

nature of the offense, the quantities of controlled sub-
stance and the history and characteristics of this
defendant, a sentence at the middle of the guidelines
range may be sufficient, it’s certainly reasonable, it may
even be sufficient to satisfy the statutory purposes of
sentencing.” After pronouncing the sentence term, the
court stated that it would run consecutively to his undis-
charged state sentence in accordance with U.S.S.G. § 5G1.3.
This meant Jackson faced an overall sentence (when
combining the state sentence with the federal sentence)
of 218 months’ imprisonment.


                       II. ANALYSIS
  Jackson challenges his sentence on appeal, claiming that
the district court erred in imposing a consecutive sentence.
In reviewing sentences, we first look at whether the
lower court committed any procedural error, such as
improperly calculating the Guidelines range, failing to
adequately explain the chosen sentence, treating the
Guidelines as mandatory, or failing to consider the
§ 3553(a) factors. Gall v. United States, 

, 597
(2007); United States v. Broadnax, No. 07-1985, ___ F.3d ___,

, at *7 (7th Cir. Aug. 4, 2008). Then we
consider whether the court’s sentence is reasonable.
Broadnax, 

, at *7.


    A. The district court had discretion to impose a consec-
       utive sentence
  Jackson does not dispute that the district court imposed
a sentence within the properly calculated Guidelines
No. 07-3226                                                5

range. However, he contends that the district court erred
in imposing its sentence consecutively to the state sentence.
  Section 5G1.3 of the Sentencing Guidelines governs the
imposition of a sentence on a defendant subject to an
undischarged term of imprisonment. We have noted
that “by providing that an appropriate total sentence is
imposed for all relevant conduct, no matter how that
conduct is ultimately divided and charged [this Guideline]
is meant to ensure that a defendant is not punished
excessively for one particular episode of offense conduct.”
United States v. Johnson, 

, 878 (7th Cir. 2003).
  The Guideline contains three subsections which provide:
    (a) If the instant offense was committed while the
    defendant was serving a term of imprisonment
    (including work release, furlough, or escape status)
    or after sentencing for, but before commencing
    service of, such term of imprisonment, the sen-
    tence for the instant offense shall be imposed to
    run consecutively to the undischarged term of
    imprisonment.
    (b) If subsection (a) does not apply, and a term of
    imprisonment resulted from another offense that
    is relevant conduct to the instant offense of con-
    viction under the provisions of subsections (a)(1),
    (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and
    that was the basis for an increase in the offense
    level for the instant offense under Chapter Two
    (Offense Conduct) or Chapter Three (Adjust-
    ments), the sentence for the instant offense shall
    be imposed as follows:
6                                                No. 07-3226

        (1) the court shall adjust the sentence for
        any period of imprisonment already served
        on the undischarged term of imprisonment
        if the court determines that such period of
        imprisonment will not be credited to the
        federal sentence by the Bureau of Prisons;
        and
        (2) the sentence for the instant offense shall
        be imposed to run concurrently to the
        remainder of the undischarged term of
        imprisonment.
    (c) (Policy Statement) In any other case involving
    an undischarged term of imprisonment, the sen-
    tence for the instant offense may be imposed to
    run concurrently, partially concurrently, or con-
    secutively to the prior undischarged term of im-
    prisonment to achieve a reasonable punishment
    for the instant offense.
U.S.S.G. § 5G1.3(a)-(c).
  Subsection (b) addresses situations where a district
court “shall” impose a concurrent sentence. This subsec-
tion is applicable when a state charge is “relevant con-
duct” (as defined by U.S.S.G. § 1B1.3(a)) to a defendant’s
federal offense and is used to determine the appropriate
offense level. Broadnax, 

, at *6; 

; see also United States v. Heard, 

, 549 (D.C. Cir. 2004). Although Jackson argues
that the district court “effectively” double-counted Jack-
son’s 2001 state conviction, he does not contend that the
conduct underlying that conviction was “relevant conduct”
No. 07-3226                                            7

under U.S.S.G. § 1B1.3. Therefore, subsection (b) is not
at issue here.
  Subsection (c) applies when a defendant commits an
offense while on supervised release. Although the lan-
guage of subsection (c) states only that a district court
may impose its sentence concurrently, partially concur-
rently, or consecutively to a prior undischarged sentence
to “achieve a reasonable punishment,” the commentary
to Guideline 5G1.3 specifies that subsection (c) applies
in cases where a defendant commits an offense while
on supervised release, and recommends “that the sen-
tence for the instant offense be imposed consecutively
to the sentence imposed for the revocation.” U.S.S.G.
§ 5G1.3 cmt. n. 3(C).
  The district court’s application of subsection (c) was
appropriate because Jackson was on state supervised
release and probation when he committed the instant
offense. The state court revoked Jackson’s supervised
release and probation and sentenced Jackson to four
years in prison based on the revocation. So, under the
Sentencing Guidlines, the district court had the discre-
tion to impose Jackson’s sentence for the instant offense
consecutively to the state sentence.
  Jackson argues that he was twice punished for the
conduct underlying his 2001 state controlled substance
conviction because it was used to qualify him as a
career offender (which raised his base offense level) and
then his sentence was imposed consecutively to his state
sentence based on the same offense. Had the court not
considered the 2001 conviction, Jackson’s Guidelines
8                                                 No. 07-3226

range would have been 51-63 months instead of 151-188
months. Because this greater sentence was imposed
consecutively to the state sentence, Jackson received
what he deems an “excessive” punishment for the same
course of conduct. Jackson maintains that the proper
course would have been for the district court to impose
its sentence to run concurrently with the state sentence.
  It bears mentioning that Jackson does not challenge
the calculation of the applicable Guidelines range, nor
does he challenge his status as a career offender under
the Guidelines. His sole argument is that the district
court’s application of U.S.S.G. § 5G1.3 was erroneous.
However, he points to no authority (and we can find
none ourselves) prohibiting consecutive sentences in
these circumstances. Cf. 

(rejecting
argument that concurrent sentence was required where
prior offenses were part of the calculation that led to
career offender designation and higher Guidelines range).
  Nevertheless, it is true that the combination of Jackson’s
sentence with his state sentence results in a lengthy term
of imprisonment for Jackson and that both sentences
were based in some part on overlapping conduct. The
government responds that there is no double counting
issue because the state’s revocation of Jackson’s proba-
tion vindicated a different interest than Jackson’s
federal sentence. That is, the state court’s sentence for
violating the terms of his supervised release is meant to
punish that breach of trust. See, e.g., United States v. Wyatt,

, 245 (7th Cir. 1996) (“revocation of supervised
release is . . . designed to meet objectives entirely distinct
from punishing the subsequent misconduct”).
No. 07-3226                                               9

  But this issue—whether the imposition of a consecutive
sentence to a pre-existing state sentence for a crime used
to enhance the federal sentence under the career offender
guideline raises double counting issues—is one we need
not decide today. At the time of his federal crime, Jackson
was on supervised release and probation for a number
of offenses in addition to the 2001 crack cocaine convic-
tion. For example, Jackson was also on probation for
various bail jumping offenses. The state court’s four-year
sentence reflects punishment for violating the term of
probation for those offenses as well as Jackson’s conduct
underlying the 2001 state court conviction. Therefore, the
conduct underlying the 2001 conviction which qualified
Jackson for career offender status was not the exact same
conduct that resulted in Jackson’s four-year state sen-
tence. Compare United States v. Blum, 

, 612 (7th
Cir. 2008) (“The presence of some factual overlap is not
sufficient to trigger the prohibition on double counting,
however, where the two enhancements address distinct
aspects of a defendant’s conduct.”). Therefore, the
district court did not err in imposing a consecutive sen-
tence in this case.


  B. The district court did not provide adequate expla-
     nation for rejecting Jackson’s arguments in favor
     of a concurrent sentence
  That the district court was not required to impose a
concurrent sentence, however, does not mean it could not
have done so. At the sentencing hearing, Jackson’s
counsel correctly argued that the district court had the
10                                               No. 07-3226

discretion to impose a concurrent sentence and urged the
court to impose such a sentence, noting Jackson’s youth
at the time he committed the offenses that qualified him
for career offender status and the relatively minor nature
of those offenses. (His first offense occurred when he
was eighteen years old and involved less than five grams
of drugs, and his second offense occurred when he was
nineteen years old and again involved less than five
grams of drugs.) Because Jackson’s status as a career
offender had already increased his Guidelines range
(from 51-63 months to 151-188 months), counsel argued
that tacking that sentence onto Jackson’s four-year state
sentence (which had just begun) would be greater than
necessary to reflect the seriousness of the offense. This
was not a frivolous argument given the circumstances of
this case, where there is some overlap between the
conduct used to calculate Jackson’s sentence here and the
conduct driving the state sentence.
  After hearing both parties’ arguments, the district court
reviewed Jackson’s abusive childhood, the fact that he
had “earned” his place as a career offender through his
prior convictions, and his noncompliance with super-
vision, and then stated:
     The fact is that his criminal history as well as this
     particular offense does suggest a sentence at the
     middle of the guideline range. It’s suggested at the
     top of the guideline range. He was on state super-
     vision which included electronic monitoring at the
     time of this federal offense. Based on this history
     there is a high likelihood that the defendant will
No. 07-3226                                                11

   continue to engage in criminal activity and will
   present a significant risk to the safety of the com-
   munity. . . . Given the nature of the offense, the
   quantities of controlled substance and the history
   and characteristics of this defendant, a sentence
   in the middle of the advisory guideline imprison-
   ment range may be sufficient, it’s certainly reason-
   able, it may even be sufficient to satisfy the statu-
   tory purposes of sentencing. . . . The term of im-
   prisonment will serve to hold the defendant ac-
   countable, protect the community from further
   criminal activity, serve as a deterrent and achieve
   parity with sentences of similarly situated offend-
   ers.
   As to Count 3 of the superseding indictment it is
   adjudged that the defendant is committed to the
   custody of the Bureau of Prisons for imprisonment
   for a term of 170 months. This term of imprison-
   ment is to run consecutive to his state revocations
   imposed in Dane County Circuit Court . . . in
   accordance with Section 5G1.3, Note 3(c). You
   don’t get a bonus in this court because you have
   engaged in more criminal activity than others. It
   doesn’t work that way.
  Later, the district court entered a Statement of Reasons
which states that it “declines to run the sentence concur-
rent to his state revocations as suggested by defendant
being of the opinion that would unduly depreciate the
seriousness of the offense.”
  The Guidelines contain an application note for U.S.S.G.
§ 5G1.3(c). That note states:
12                                                  No. 07-3226

     (A) In General.—Under subsection (c), the court
     may impose a sentence concurrently, partially
     concurrently, or consecutively to the undischarged
     term of imprisonment. In order to achieve a rea-
     sonable incremental punishment for the instant
     offense and avoid unwarranted disparity, the
     court should consider the following:
     (i) the factors set forth in 18 U.S.C. § 3584 (referenc-
     ing 18 U.S.C. § 3553(a));
     (ii) the type (e.g., determinate, indetermi-
     nate/parolable) and length of the prior undis-
     charged sentence;
     (iii) the time served on the undischarged sentence
     and the time likely to be served before release;
     (iv) the fact that the prior undischarged sentence
     may have been imposed in state court rather than
     federal court, or at a different time before the
     same or different federal court; and
     (v) any other circumstance relevant to the determi-
     nation of an appropriate sentence for the instant
     offense.
U.S.S.G. § 5G1.3 cmt. n. 3(A) (“Application Note 3(A)”).
  “[W]henever a district judge is required to make a
discretionary ruling that is subject to appellate review, we
have to satisfy ourselves, before we can conclude that the
judge did not abuse his discretion, that he exercised his
discretion, that is, that he considered the factors relevant
to that exercise.” United States v. Cunningham, 

,
No. 07-3226                                                13

679 (7th Cir. 2005). The court’s explanation for its ruling
consists only of its cryptic remark—“You don’t get a
bonus in this court because you have engaged in more
criminal activity than others. It doesn’t work that
way.”—and its later statement that a concurrent sentence
would “unduly depreciate the seriousness of the offense.”
Contrary to the government’s assertion, the district court’s
discussion of the section 3553(a) factors does not explain
its decision to impose a consecutive sentence. We read
that discussion as explaining only the court’s decision
to impose a sentence in the middle of the advisory Guide-
lines range.
   We do not have confidence that the district court con-
sidered any of the relevant factors in this case, where the
district court failed to address the principal argument
made by Jackson. See 

have much confi-
dence in the judge’s considered attention to the factors in
this case, when he passed over in silence the principal
argument made by the defendant even though the argu-
ment was not so weak as not to merit discussion, as it
would have been if anyone acquainted with the facts
would have known without being told why the judge had
not accepted the argument.”). “A district court may pass
over in silence frivolous arguments for leniency, but where
a defendant presents an argument that is ‘not so weak as
not to merit discussion,’ a court is required to explain
its reason for rejecting that argument.” United States v.
Schroeder, No. 07-3773, ___ F.3d ___, 

, at *7
(7th Cir. Aug. 5, 2008) (quoting United States v. Miranda, 

, 791 (7th Cir. 2007)). Jackson’s argument war-
14                                              No. 07-3226

ranted a reasonable explanation and the district court’s
brief, cryptic response does not provide sufficient ex-
planation for us to determine whether the court abused
its discretion.
  The government argues that because sentences
imposed at different times are presumed to run consecu-
tively unless the sentencing judge orders them to run
concurrently, the district court’s sentence should be
upheld. See 18 U.S.C. § 3584(a). Had the court remained
silent, the government reasons, the sentence would have
run consecutively by default. But the court did not
remain silent so it is not clear how this argument ad-
vances the government’s position in this case. Perhaps if
Jackson failed to request a concurrent sentence, and the
district court remained silent on whether its sentence
would run consecutively or concurrently to a pre-existing
sentence, Jackson might have a difficult time chal-
lenging the consecutive nature of the sentence. Cf.
Romandine v. United States, 

, 738 (7th Cir. 2000)
(“the final sentence of § 3584(a) makes the federal sentence
presumptively consecutive in all unprovided-for cases”)
(emphasis added). But here, where Jackson made a non-
frivolous argument for a concurrent sentence, which the
district court had the discretion to impose pursuant to
U.S.S.G. § 5G1.3(c), and where the court exercised its
discretion to deny Jackson’s request, we do not think the
court could simply have remained silent. See 

; cf. Broadnax, 

, at *7
(upholding a district court’s decision to impose a con-
secutive sentence where the district court “thoroughly
and on the record addressed the statutory factors as
required by § 3553(a), and only thereafter decided that
No. 07-3226                                        15

this situation called for Broadnax’s sentences to run
consecutively, rather than concurrently”).


                 III. CONCLUSION
  Accordingly, we V ACATE Jackson’s sentence and
R EMAND for resentencing.




                        10-7-08