United States v. Miotke

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-10560 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL RAY MIOTKE, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:97-CR-119-2-R December 22, 1998 Before JOHNSON, DUHE’, and STEWART, Circuit Judges. PER CURIAM:* Michael Ray Miotke appeals his sentence following his guilty plea conviction for producing and passing counterfeit money. He argues that the district court failed to consider the factors listed in 18 U.S.C. § 3553(a) when it ordered that his federal sentences were to run consecutively to his anticipated state sentence. We review a district court’s decision to have a defendant’s sentences run consecutively for an abuse of discretion, but whether the district court properly applied the sentencing guidelines will be reviewed de novo. See United States v. Richardson, 87 F.3d 706, 710 * Pursuant to 5th CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th CIR. R. 47.5.4. (5th Cir. 1996). After a careful review of the record, we hold that the district court made comments which sufficiently indicated an implicit general consideration of the section 3553(a) factors. See Richardson, 87 F.3d at 711; United States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991). Because the record is not so lacking as to illustrate a disregard of those factors, we find no error by the district court. Miotke also argues that the district court erroneously increased his offense level under U.S.S.G. § 2B5.1(b)(2). He contends that Application Note 4 of that section should be interpreted to disallow the enhancement if the money was photocopied. Miotke’s arugment was rejected and is foreclosed by United States v. Wyjack, 141 F.3d 181, 183-84 (5th Cir. 1998). AFFIRMED. 2