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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11102
Non-Argument Calendar
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D.C. Docket No. 5:12-cr-00026-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE JAMES HAUGABROOK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 13, 2014)
Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Willie James Haugabrook was convicted by a jury of, having been convicted
of a crime punishable by imprisonment for a term exceeding one year, knowingly
receiving and possessing a firearm that had been previously shipped and
transported in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He was sentenced to a 120-month term of imprisonment, to run
consecutively with a prior undischarged state sentence. He appeals both the
conviction and sentence. We will address each challenge in turn.
I.
Haugabrook argues on appeal that the district court erred by giving the flight
instruction, because there was insufficient evidence in his case to support the
inferential chain from flight to guilt for the charged offense. He contends that the
evidence was equally compatible with the conclusion that he fled because he was
accosted in a high crime area or because of an outstanding parole warrant for his
arrest.
Haugabrook also argues that the flight instruction given was inadequate
and misleading because it failed to expressly identify multiple possible reasons for
his flight and to incorporate safeguards of which we and other courts have
approved. Haugabrook acknowledges that in United States v. Williams, 541 F.3d
1087, 1089 (11th Cir. 2008), we upheld a flight instruction analogous to the
instruction given in his case, but he asks us to overturn Williams.
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We review a district court’s jury instructions under an abuse of discretion
standard. See Williams, 541 F.3d at 1089 (11th Cir. 2008). We review the legal
correctness of a jury instruction de novo, but defer to the district court on questions
of phrasing, absent an abuse of discretion. United States v. Prather, 205 F.3d
1265, 1270 (11th Cir. 2000).
Evidence of flight is generally admissible as circumstantial evidence of guilt.
See United States v. Borders, 693 F.2d 1318, 1324-1326 (11th Cir. 1982); see also
United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). Giving the flight
instruction is not an abuse of discretion where the evidence could lead a reasonable
jury to conclude that the defendant fled to avoid apprehension for the charged
crime. Williams, 541 F.3d at 1089. When reviewing the sufficiency of the
evidence for a flight instruction, we view the evidence in the light most favorable
to the government. See United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.
2004).
We have approved the flight instruction even where the evidence could
support more than one motive for flight, indicating that “it is for the jury to infer”
the source of the defendant’s guilt. Wright, 392 F.3d at 1279. For example, in
Williams, we held that the district court’s flight instruction was not an abuse of
discretion in a trial for a drug possession charge, where police officers’ impetus for
pursuing the defendant was an outstanding arrest warrant. 541 F.3d at 1088-89.
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The defendant led the officers on a high speed chase, and, once they apprehended
him, the officers found drugs in the defendant’s car. Id. at 1088. See also Wright,
392 F.3d at 1271-72, 1277-79 (concluding the district court did not plainly err by
giving flight instruction at trial on a firearm possession charge, where police
attempted to arrest defendant for driving under the influence, he resisted arrest, and
police later found firearm in his car).
District courts have broad discretion in crafting jury instructions, provided
the charge as a whole accurately reflects the law and the facts. United States v.
Kennard, 472 F.3d 851, 854 (11th Cir. 2006). We examine whether the charge
sufficiently instructed the jurors so that they understood the issues and were not
misled. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001).
We have indicated that a flight instruction is not an abuse of discretion if it
informs jurors that it is up to them to determine whether the evidence proved flight.
See Borders, 693 F.2d at 1328. We have upheld flight instructions of varying
degrees of specificity. See e.g. Williams, 541 F.3d at 1089 (upholding flight
instruction with less detail than the flight instruction in the instant case); Borders,
693 F.2d at 1327-28 (upholding flight instruction with significantly more detail
than the instruction in the instant case).
In this case, the evidence permitted the jury to conclude that Haugabrook’s
flight was motivated by his knowledge that he illegally possessed a firearm. The
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evidence showed that Haugabrook began to slowly flee as soon as the officers
approached, and that once he saw that the officers continued to pursue him, he ran.
The evidence, viewed in the light most favorable to the government, also showed
that Haugabrook discarded a firearm as he was being chased. While the evidence
may have permitted the jury to conclude that Haugabrook fled for other reasons,
the reason for a defendant’s flight is a question for the jury, Wright, 392 F.3d at
1279. Accordingly, the district court did not abuse its discretion by giving the
flight instruction.
Further, the flight instruction given was not an abuse of discretion because it
informed the jurors that it was up to them to determine whether the evidence
proved flight. Borders, 693 F.2d at 1328. The jury instruction stated:
The flight of a Defendant is a circumstance which may be taken
into consideration with all other facts and circumstances of the
evidence. If you find from the evidence beyond any reasonable
doubt that the Defendant fled, and that his flight was for the
purpose of avoiding arrest for the charge in the indictment, as
opposed to some other reason, you may take this fact into
consideration in determining the Defendant’s guilt or
innocence.
The district court expressly instructed the jury to take Haugabrook’s flight
into consideration as circumstantial evidence of guilt only if it found, beyond a
reasonable doubt, that he fled to avoid the charged crime. Williams, 541 F.3d at
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1089. Accordingly, the district court did not abuse its discretion in its choice of
flight instruction.1
II.
Haugabrook also argues on appeal that the district court erred in not relating
its consideration of the factors in 18 U.S.C. § 3553(a) and his arguments for a
sentence under the guideline range to its decision to impose his 120-month
sentence to run consecutively to his undischarged state sentence. He
acknowledges that the district court considered the § 3553(a) factors and his
arguments in issuing the 120-month prison term.
We review the reasonableness of a district court’s sentence under a
deferential abuse of discretion standard. See Peugh v. United States, 133 S.Ct.
2072, 2080, 186 L.Ed.2d 84 (2013). The party challenging the sentence has the
burden of establishing its unreasonableness. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). We review objections raised on appeal that were not timely
raised in the district court, including objections to reasonableness of a sentence, for
plain error. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16
(11th Cir. 2005) (applying plain error review to challenge based on district court’s
failure to treat the Guidelines as advisory); see also United States v. Irey, 612 F.3d
1
Haugabrook asks us to overturn our precedent upholding flight instructions
analogous to the instruction given in his case. However, only this Court sitting en banc or the
Supreme Court may overrule a prior panel decision. United States v. Woodard, 938 F.2d 1255,
1258 (11th Cir. 1991).
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1160, 1223 n.44 (11th Cir. 2010) (en banc) (post-Booker decision explaining when
plain error review is warranted).
Plain error review requires that we find “an ‘error’ that is ‘plain’ and that
‘affect[s] substantial rights.’” Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). The “plain”
requirement means that, “at a minimum [we] cannot correct [the] error . . . unless
the error is clear under current law.” Id. 507 U.S. at 734, 113 S.Ct. at 1777.
Moreover, the Supreme Court has indicated that we should decline to correct a
forfeited error unless it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. 507 U.S. at 732, 113 S.Ct. at 1776
(citations omitted).
Multiple terms of imprisonment, imposed at different times, run
consecutively unless the district court orders that the terms run concurrently.
18 U.S.C. § 3584(a). The district court must consider the factors set forth in
18 U.S.C. § 3553(a) in determining whether a consecutive sentence is appropriate,
including the nature and circumstances of the offense, the history and
characteristics of the defendant, the Sentencing Guidelines, and any pertinent
policy statements issued by the Sentencing Commission. 18 U.S.C. § 3584(b);
18 U.S.C. § 3553(a)(1),(4),(5). However, the court is not required to state on the
record that it has explicitly considered each of the § 3553(a) factors or to discuss
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the factors individually. Cf. Talley, 431 F.3d at 786 (discussing procedural
reasonableness of sentences, generally). It is sufficient if the court acknowledges
that it has considered the defendant’s arguments and the § 3553(a) factors. See
United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010) (discussing
reasonableness of sentences, generally).
A policy statement in the Guidelines provides that, except in special cases
not applicable here, a sentence may be imposed to run concurrently, partially
concurrently, or consecutively to any prior undischarged sentence in order to
achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3(c). The
Sentencing Commission recommends a consecutive sentence if, as here, the
defendant was on probation, parole, or supervised release at the time of the instant
offense and has had such probation, parole, or supervised release revoked.
U.S.S.G. § 5G1.3(c), comment. (n.3(C)); see also § 7B1.3(f) (recommending a
consecutive sentence in cases involving federal revocation of probation or
supervised release).
As an initial matter, plain error review applies because Haugabrook did not
object in any way to the consecutive nature of his sentence before the district court.
Next, Haugabrook is correct that the district court did not separately explain its
reasons for issuing a consecutive sentence. However, the record indicates that the
district court was aware of Haugabrook’s arguments and the § 3553(a) factors
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when it pronounced the consecutive nature of his sentence, because earlier it
acknowledged the maximum release date for his state sentence and, as Haugabrook
acknowledges, explicitly stated its consideration of the § 3553(a) factors and his
arguments with regard to its issuance of a 120-month prison term. In addition,
before issuing the sentence, the court noted its consideration of the presentence
investigation report, which stated the Sentencing Commission’s preference for
consecutive sentences in cases like Haugabrook’s.
Moreover, Haugabrook has not demonstrated that any error in his case was
“plain,” because our precedent does not clearly establish that the district court must
separately explain its reasons for issuing a consecutive sentence. See Olano, 507
U.S. 733, 113 S.Ct. 1777. In addition, any error in this case has not “seriously
affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
See id., 507 U.S. at 732, 113 S.Ct. at 1776. The district court’s decision to issue a
consecutive sentence was in accordance with the policy recommendations in the
Sentencing Guidelines. Moreover, the record shows that the district court took
Haugabrook’s arguments and the § 3553(a) factors into account, generally, in
issuing its sentence. See McNair, 605 F.3d at 1231. As a result, the district court’s
failure to restate its consideration of the § 3553(a) factors and Haugabrook’s
arguments or to specifically explain its reasons for issuing a consecutive sentence
did not constitute plain error.
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Accordingly, because the district court did not abuse its discretion in giving
the flight instruction in this case or plainly err in failing to relate its consideration
of the Guidelines and the reasons for its chosen sentence to its decision to issue a
consecutive sentence, we affirm Haugabrook’s conviction and sentence.
AFFIRMED.
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