United States of America v. Clyde Dear

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0198n.06
No. 22-5647
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLYDE DEAR,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
OPINION
Before: GIBBONS, THAPAR, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. While on supervised release from federal prison, Clyde
Dear allegedly committed various state crimes in Arkansas and Tennessee, for which he was
indicted in those states. These developments prompted a hearing in the Western District of
Tennessee for revocation of the supervised release and for additional punishment. The district
court revoked Dear’s release and sentenced him to thirty-seven months’ imprisonment for
violating his supervised-release conditions. The district court based its decision on a finding that
the government had established by a preponderance of the evidence that Dear committed robbery
in Arkansas.
The issue on appeal is whether the district court’s sentencing order was in error because it
deferred to the state courts on whether the new federal sentence will run concurrently or
consecutively to potential sentences that may result from pending or future state charges. Because
the district court has the discretion to make this deferral and did not abuse that discretion, we
AFFIRM.

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I.
In 2011, Dear pleaded guilty to bank robbery, including aiding and abetting, and use of a
firearm during and in relation to a crime of violence. He was sentenced to 132 months’
imprisonment followed by three years of supervised release. Dear began his supervised release on
September 19, 2019. On April 15, 2022, the district court issued an arrest warrant based on Dear’s
alleged criminal conduct while on supervised release. The warrant alleged that Dear violated the
conditions of his supervised release by committing the following Arkansas crimes: robbery,
possession of a firearm by certain persons, five counts of aggravated assault, five counts of first-
degree kidnapping/false imprisonment, and theft of $25,000 or more from a building. In addition,
the warrant alleged that Dear committed the following Tennessee crimes: evading arrest, felon in
possession of a handgun, theft of property under $1,000, theft of property over $1,000, and
possessing a firearm during commission/attempt to commit a dangerous felony.
At a violation of supervised-release hearing on June 1, 2022, the government offered the
testimony of three witnesses: Dear’s probation officer, a police officer from West Memphis,
Arkansas, and a West Memphis sergeant detective. The testimony brought out that on April 13,
2022, Dear had allegedly committed crimes on both sides of the Mississippi River, starting on the
Arkansas side in West Memphis and ending in Memphis, Tennessee. On the second day of the
hearing, held on July 26, 2022, the district court found, based on a preponderance of the evidence,
that Dear had committed robbery in Arkansas and thus had violated the terms of his supervised
release. The court did not address the other crimes for which Dear may be prosecuted in the two
states.
The district court sentenced Dear to thirty-seven months’ imprisonment. It declined to
make that sentence consecutive or concurrent to any potential yet-to-be-imposed sentences for

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No. 22-5647, United States v. Dear
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pending state charges against Dear. Instead, the district court left it for the state sentencing courts
in those cases to decide whether the sentences they imposed, if any, would be concurrent or
consecutive to the sentence imposed for Dear’s violation of supervised release. Dear timely
appealed.
II.
We review the district court’s imposed sentence upon revocation of supervised release for
abuse of discretion. United States v. Melton, 782 F.3d 306, 312 (6th Cir. 2015) (citations omitted).
This review also involves examining the procedural and substantive reasonableness of the
sentence. United States v. Johnson, 640 F.3d 195, 201–02 (6th Cir. 2011) (citations omitted).
Procedural reasonableness review looks for “[a] significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence—including . . . any deviation from the Guidelines
range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). And we review the district
court’s legal conclusions de novo. See United States v. Kontrol, 554 F.3d 1089, 1091–92 (6th Cir.
2009) (citations omitted).
Dear argues that the district court abused its discretion and committed procedural error by
failing to recognize its authority to run the federal sentence concurrently with any yet-to-be-
imposed state sentence. In doing so, Dear challenges the district court’s legal conclusion
concerning its authority, a conclusion we review de novo. Dear relies on Setser v. United States,
566 U.S. 231 (2012), arguing that the district court must choose to run Dear’s sentence
concurrently or consecutively. In Setser, the Supreme Court recognized the authority of district
courts to “select whether the sentences they impose will run concurrently or consecutively” when

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they “anticipate[] a state sentence that has not yet been imposed.” Id. at 236–37. But the Court
also recognized that “in some situations, a district court may have inadequate information and may
forbear.” Id. at 242 n.6. By this language, the Court acknowledged that it is well within the
discretion of district courts to refrain from imposing anticipatory consecutive or concurrent
sentences.
That is what happened here. After hearing arguments from both the government and
defense counsel as to whether the federal sentence should run consecutive or concurrent to any
later state sentences, the district court stated that “what’s appropriate is that I sentence him as is
appropriate here and that other courts would decide whether their sentences, if any, would be
consecutive or concurrent.” Supervised Release Violation Hr’g Tr., R. 122, Page ID 301. This
statement suggests that the district court understood that it had the ability to impose a consecutive
or concurrent sentence but elected to defer. Because the district court correctly understood the
scope of its authority, Dear’s challenge fails.
III.
For the foregoing reasons, the district court did not abuse its discretion. Accordingly, we
AFFIRM.

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