[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15291 ELEVENTH CIRCUIT
JULY 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00124-CR-2-JHH-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC JAVARIS MOORE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 23, 2010)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
Cedric Javaris Moore pled guilty to both counts of a two-count indictment
charging him, in Count One, with possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1), and, in Count Two, possession of a firearm
during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). On
October 6, 2009, the district court then sentenced him to consecutive prison terms
of 57 months on Count One and 60 months on Count Two. Moreover, the court
fashioned Moore’s total sentence consecutively to a prior state sentence imposed in
Alabama for revocation of probation. Moore raises two arguments on appeal,
which we address seriatim.
I. Downward Departure
First, Moore argues that the district court erred in denying his motion for a
downward departure from the Guidelines sentencing range because he continues to
suffer serious health problems as the result of a gunshot wound that he incurred in
July 2008, when he was shot by law enforcement officers during an arrest for
robbery in another case. Moore cites a case from the Ninth Circuit Court of
Appeals in support of his argument that his residual health problems from being
shot by law enforcement constitute continuing punishment for which he should
have received a downward departure. He argues that the district court “did not
adequately consider the issue of [Moore’s] extraordinary physical impairment, and
if so, whether those factors justified a downward departure.”
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We generally lack the authority to review a district court’s refusal to issue a
downward departure under the Sentencing Guidelines. United States v. Chigbo, 38
F.3d 543, 546 (11th Cir. 1994). However, we may review a district court’s refusal
to make a downward departure if it was based on the court’s misapprehension of its
statutory authority to depart from the sentencing guideline range. United States v.
Fossett, 881 F.2d 976, 979 (11th Cir. 1989). In this case, the record reveals that
the district court did not erroneously believe that it lacked the authority to depart
downward, nor does Moore even raise this argument. We therefore do not review
court’s refusal to depart downward in this appeal.
II. Reasonableness of Consecutive Sentences
Next, Moore argues that the court erred by denying his request to fashion his
sentences concurrently with those imposed in his other pending cases in state and
federal court. He argues, for the first time, that his Alabama state court sentence
for revocation of probation was “relevant conduct” under U.S.S.G. § 5G1.3, and
the court should have adjusted his sentence under Count One to reflect the three
years that he had already served under his state sentence. Alternatively, Moore
argues that it was unreasonable under 18 U.S.C. § 3553(a) not to run his total 117
months’sentence concurrently with his prior undischarged state sentence because
his criminal history was largely juvenile, his minimum release date for the state
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sentence will be in 2025, and he was also sentenced in another federal case on the
same day that he was sentenced in the present case. In short, Moore argues that the
court should have credited his present sentence under Count One for the time he
had already served under an Alabama state sentence, or alternatively, fashioned his
total sentence “concurrently with either the state sentence, the subsequent federal
sentence, or both, so as to achieve a reasonable sentence.”
a. Credit for Moore’s undischarged state sentence
“Where a defendant raises a sentencing argument for the first time on
appeal, we review for plain error.” United States v. Aguillard, 217 F.3d 1319,
1320 (11th Cir. 2000). “For the Court to correct plain error: (1) there must be
error; (2) the error must be plain; and (3) the error must affect substantial rights.”
United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995). We review a
district court’s interpretation and application of the Sentencing Guidelines de novo.
United States v. Amedeo, 487 F.3d 823, 831 (11th Cir. 2007). “The commentary
and application notes of the Sentencing Guidelines are authoritative unless they are
plainly erroneous, inconsistent with the regulation they interpret, or contrary to the
Constitution or federal law.” United States v. Caraballo, 595 F.3d 1214, 1230 n.2
(11th Cir. 2010).
The Sentencing Guidelines provide direction regarding the imposition of a
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sentence for a defendant who is subject to an undischarged term of imprisonment.
See U.S.S.G. § 5G1.3. In pertinent part, sub-section (b) provides that if:
a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense of conviction 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
(Adjustments), the sentence for the instant offense shall be imposed as
follows: (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.
U.S.S.G. § 5G1.3(b) (emphasis added). However, the application notes provide
that subsection (b) does not apply when “the prior offense was a crime of violence
for which the defendant received an increased base offense level under § 2K2.1.”
U.S.S.G. § 5G1.3, comment. (n.2(B)).
Here, Moore did not raise the argument before the district court that his
sentence under Count One should have been reduced by the period of
imprisonment that he had already served under his Alabama sentence, and thus we
review his argument for plain error. Moore’s argument is without merit, and he
cannot demonstrate any error under U.S.S.G. § 5G1.3(b) because his base offense
level was increased due to a prior crime of violence, § 5G1.3(b) does not apply to
him, and, therefore, he fails to show any error in the district court’s application of
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U.S.S.G. § 5G1.3(b).
b. Reasonableness of Moore’s sentence
We review a defendant’s sentence for reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct.
586, 594, 169 L.Ed.2d 445 (2007). Similarly, we review the imposition of a
consecutive sentence for an abuse of discretion. United States v. Covington, 565
F.3d 1336, 1346 (11th Cir. 2009).
As we have explained, “[r]eview for reasonableness is deferential.” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “In our evaluation of a
sentence for reasonableness, we recognize that there is a range of reasonable
sentences from which the district court may choose.” Id. “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in light of both [the] record and the factors in section 3553(a).” Id.
Section 3553(a) provides that district courts must consider, inter alia, (1) the
applicable Guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (5) the need for adequate deterrence to
criminal conduct; (6) protection of the public from further crimes of the defendant;
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and (7) the kinds of sentences available. See 18 U.S.C. § 3553(a)(1)-(6). “The
weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (quotations and alterations omitted). “[A]n acknowledgment by the
district court that it has considered the defendant’s arguments and the factors in
section 3553(a) is sufficient under Booker.” Talley, 431 F.3d at 786 (citing to
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).
“The sentencing judge should set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356,
127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). A sentence may be substantively
unreasonable “if it does not achieve the purposes of sentencing stated in
§ 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)
(quotation omitted). Under 18 U.S.C. § 3584(b), the district court may impose a
concurrent or consecutive sentence, provided that the court has considered the
factors set forth above under § 3553(a). See 18 U.S.C. § 3584(b); see also
Covington, 565 F.3d at 1346-47.
Moore’s claim of substantive unreasonableness is without merit; we thus
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conclude that his sentences are reasonable in light of the record and the § 3553(a)
factors. While Moore argues that his sentences are unreasonable by virtue of the
district court’s decision to fashion his total sentence consecutively with his
undischarged state court sentence, the district court explained in detail its reasons
for doing so under § 3553(a). Under Talley, no further articulation of the court’s
reasoning was necessary. Based on the § 3553(a) sentencing factors, the court
reasonably determined that the sentences should run consecutively to Moore’s
undischarged Alabama state-sentence. Moreover, the court did not abuse its
discretion in declining to fashion its sentences around another pending, but not yet
final, federal sentence. In short, Moore’s sentences, which are within the
Guidelines sentencing ranges, are supported by the § 3553(a) factors, and Moore
has not met his burden to show that the court abused its discretion.
AFFIRMED.
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