[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 28, 2010
No. 09-14277 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-20759-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILFREDO RODRIGUEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 28, 2010)
Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Wilfredo Rodriguez appeals the 420-month sentence he received following
his convictions for various drug and firearm offenses. After a thorough review, we
affirm.
I. Background
In 2004, Rodriguez was convicted of conspiracy to possess five kilograms or
more of cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (Count 1);
conspiracy to violate the Hobbs Act, in violation of 18 U.S.C. § 1951(a) (Count 2);
conspiracy to use or carry a firearm during and in relation to a drug trafficking
crime or crime of violence, in violation of 18 U.S.C. § 924(o) (Count 3); attempted
possession with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 4); using or carrying a firearm during
and in relation to a drug trafficking crime or crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(I), (2) (Count 5); and possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) (Count 6). The court sentenced him to life
imprisonment, and his conviction was affirmed on direct appeal. Rodriguez then
filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court
granted the motion, vacated the sentences, and ordered a new sentencing hearing.
At resentencing, the court determined that the advisory guidelines range was
360 months’ to life imprisonment, with a mandatory 5-year consecutive sentence
on Count 5 under 18 U.S.C. § 924(a). Rodriguez objected to the consecutive
sentence on the ground that the other counts of conviction included a ten-year
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mandatory minimum sentence, which trumped the mandatory sentence under
§ 924(a)(1)(A). Rodriguez also presented mitigating evidence for the court to
consider in determining his sentence.
The district court rejected Rodriguez’s argument as to the consecutive
sentence and sentenced him to 360 months’ imprisonment as to Counts 1 and 4,
240 months’ imprisonment as to Counts 2 and 3, and 120 months’ imprisonment as
to Count 6, all to be served concurrently. The court imposed a consecutive
sentence of 60 months’ imprisonment on Count 5 to run consecutively to the other
sentences imposed, for a total sentence of 420 months’ imprisonment. Rodriguez
now appeals, challenging the 60-month consecutive sentence and the
reasonableness of his sentences.
II. Standards of Review
We review questions of statutory interpretation de novo. United States v.
Krawczak, 331 F.3d 1302, 1305 (11th Cir. 2003). We review a sentence imposed
by a district court for reasonableness, using an abuse of discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007).
III. Discussion
A. Consecutive Sentence
Rodriguez argues that § 924(c)(1)(A)’s prefatory clause does not permit the
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court to impose a minimum five-year sentence on the firearm count where there is
a greater mandatory minimum sentence imposed on the other counts. Rodriguez
acknowledges that we have previously considered and rejected this argument, but
he wishes to preserve the argument because of a circuit split on the issue.
Section 924(c)(1)(A) states:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation
to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of violence or
drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less
than 5 years . . . .
18 U.S.C. § 924(c)(1)(A) (emphasis added). This mandatory minimum sentence
must run consecutively to any other term of imprisonment imposed. Id.
§ 924(c)(1)(D)(ii).
Rodriguez’s challenge to the consecutive sentence is foreclosed by our
recent decision in United States v. Segarra, 582 F.3d 1269, 1271-73 (11th Cir.
2009) (holding that the plain language of § 924(c)(1)(A) requires courts to impose
consecutive sentences for § 924(c) offenses and underlying drug offenses), petition
for cert. filed (U.S. Jan. 8, 2010) (No. 09-8536). See also United States v. Tate,
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586 F.3d 936, 946-47 (11th Cir. 2009) (relying on Segarra), petition for cert. filed
(U.S. Jan. 28, 2010) (No. 09-8888).1
Based on our decisions in Segarra and Tate, the district court committed no
error by imposing the consecutive five-year mandatory minimum sentence under
§ 924(c)(1)(A)(i).
B. Reasonableness
Unreasonableness may be procedural or substantive. United States v. Hunt,
459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally
unreasonable if the court treated the guidelines as mandatory, failed to consider the
18 U.S.C. § 3553(a) factors, or failed to explain adequately the chosen sentence.
Gall, 552 U.S. at 51,128 S.Ct. at 597. The substantive reasonableness of a
sentence considers the totality of the circumstances. United States v. Livesay, 525
F.3d 1081, 1091 (11th Cir. 2008). In arriving at a substantively reasonable
sentence, the district court must give consideration to the sentencing factors listed
in § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The
factors in 18 U.S.C. § 3553(a) are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
1
We are aware that the Supreme Court has granted certiorari in two cases to address the
interpretation of § 924(c)(1)’s prefatory clause. But until the Supreme Court decides those
cases, our interpretation remains the law of this circuit.
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of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court is not required to discuss
each § 3553(a) factor. Id. Rather, “[t]he sentencing judge should set forth enough
to satisfy the appellate court that he considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” United
States v. Rita, 551 U.S. 338, 356 (2007). “[T]he weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.”
United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (citation omitted).
We will remand for resentencing only if we are “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515
F.3d 1179, 1191 (11th Cir. 2008) (citation and quotation marks omitted).
Rodriguez’s 360-month sentence, imposed on Counts 1 through 4 and 6, is
at the low end of the guideline range and is both procedurally and substantively
reasonable. The district court correctly determined the guideline range, treated the
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guidelines as advisory, and considered the § 3553(a) sentencing factors and the
parties’ arguments. The court noted Rodriguez’s lengthy criminal history and his
tendency towards recidivism. Rodriguez has not shown any procedural or
substantive error. Because we conclude that the sentences imposed were
reasonable, Rodriguez’s sentences are
AFFIRMED.
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