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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12176
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00122-WS-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD LEE WATTS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(December 31, 2015)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Defendant Richard Watts appeals his 24-month sentence imposed after he
pleaded guilty to being a felon in possession of ammunition, in violation of 18
U.S.C. § 922(g). On appeal, Defendant argues that his sentence is procedurally
unreasonable because the district court relied on clearly erroneous facts to support
its decision to run his federal sentence consecutive to an undischarged state
sentence. After careful review, we affirm.
I. BACKGROUND
In 2014, law enforcement officers received information that Defendant was
in possession of stolen firearms. Officers traveled to Defendant’s home, and he
consented to a search of the residence. Officers found ammunition, but did not
find any firearms. After receiving additional information the next day, officers
returned to Defendant’s residence and located three firearms and ammunition.
A federal grand jury subsequently issued an indictment, charging Defendant
with being a felon in possession of ammunition, in violation of § 922(g)(1).
Defendant later pleaded guilty without the benefit of a plea agreement.
According to the presentence investigation report (“PSR”), in 2012,
Defendant pled guilty to receiving stolen property in state court and received a
15-year suspended sentence and 3 years’ probation. However, due to Defendant’s
involvement in the present offense, the State of Alabama therefore revoked his
probation in 2014 and sentenced him to 15 years’ imprisonment.
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At his sentencing in the present case, Defendant urged the district court to
consider this 15-year state sentence in deciding the appropriate sentence for the
federal offense. Specifically, because it was the federal offense that caused his
probation to be revoked, Defendant requested that the district court direct that any
federal sentence run concurrently with the state sentence.
The district court stated that there was no reason for the federal sentence to
run concurrent to the state sentence because the state conviction predated the
instant federal offense and the two convictions were not related. The district court
then went on to say:
I will tell you that it’s my understanding and experience that the State
of Alabama is looking to release their inmates into Federal custody.
So probably what’s going to happen to you is you’re going to get
paroled into Federal custody as soon as they find out you’ve been
sentenced in Federal Court, which will work to your benefit, get you
out of a State institution into a Federal institution. So I’m going to
order that the sentence run consecutive just because there’s no reason
to run it concurrent at this time.
Ultimately, the district court sentenced Defendant to 24 months’ imprisonment,
which was at the low end of the guideline range, to run consecutive to his state
sentence.
II. DISCUSSION
Using a two-step process, we review the reasonableness of a district court’s
sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892
(11th Cir. 2014), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the
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district court committed any significant procedural error, such as miscalculating
the advisory guideline range, treating the Sentencing Guidelines as mandatory,
failing to consider the 18 U.S.C. § 3553(a) factors, 1 selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence. Id.
Then we examine whether the sentence is substantively reasonable in light of the
totality of the circumstances. Id. The party challenging the sentence bears the
burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179,
1189 (11th Cir. 2008).
When a defendant raises a sentencing argument on appeal that was not
raised before the district court, including a challenge to the procedural
reasonableness of his sentence, we review for plain error. See United States v.
Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Under plain error review, we
will reverse where there is “(1) an error (2) that is plain and (3) that has affected
the defendant’s substantial rights; and . . . (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (quotations and alteration omitted).
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness 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
education 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 unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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“[I]f a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment,” the district court may impose
the sentences to run concurrently or consecutively. 18 U.S.C. § 3584(a). The
district court must consider the § 3553(a) factors when determining whether the
sentences should run concurrently or consecutively. Id. § 3584(b). The
Sentencing Guidelines further provide that “the sentence for the instant offense
may be imposed to run concurrently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve a reasonable punishment for
the instant offense.” U.S.S.G. § 5G1.3(d). If the defendant was on federal or state
probation, parole, or supervised release at the time of the instant offense, and has
had such probation, parole, or supervised release revoked, the Guidelines
recommend that the sentence for the instant offense run consecutively to the
sentence imposed for the revocation. Id. § 5G1.3, comment. (n.4(C)) (emphasis
added).
On appeal, Defendant only challenges the procedural reasonableness of his
sentence. Specifically, he argues that the district court procedurally erred in
imposing a consecutive sentence because it relied on clearly erroneous facts,
namely that Defendant’s state and federal convictions were not related and that the
State of Alabama would “probably” parole Defendant into federal custody upon
learning of his federal sentence. Because Defendant did not challenge the
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procedural reasonableness of his sentence before the district court, we review his
arguments on appeal for plain error. See Vandergrift, 754 F.3d at 1307.
The district court did not plainly err in imposing a 24-month sentence to run
consecutively to Defendant’s undischarged state sentence. In determining whether
to run Defendant’s sentence consecutively or concurrently, the district court
considered the § 3553(a) factors and noted that it was imposing a consecutive
sentence because Defendant’s state conviction predated his federal offense and the
two convictions were not related. See 18 U.S.C. § 3584(a), (b).
Contrary to Defendant’s contentions on appeal, the district court did not rely
on clearly erroneous facts. The evidence in the record showed that the present
federal offense for being a felon in possession of ammunition was not related to
Defendant’s 2012 conviction for receiving stolen property. In fact, Defendant
explicitly stated at the sentencing hearing that the convictions were not related.
While Defendant is correct that the federal offense caused his state probation to be
revoked, this does not mean the convictions are related, as Defendant’s 2012
conviction did not serve as a basis for an increase in his offense level or qualify as
relevant conduct for his federal offense. See U.S.S.G. § 5G1.3(b) (providing for a
concurrent sentence where an undischarged term of imprisonment is for an offense
that is relevant conduct to the instant offense). Notably, the Guidelines
recommend the imposition of a consecutive sentence in situations such as this case,
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where the defendant was on state probation at the time of the instant offense and
has since had that probation revoked. Id. § 5G1.3, comment. (n.4(C)).
We are also not persuaded that Defendant’s sentence is procedurally
unreasonable because of the district court’s statement that the State of Alabama
would “probably” parole Defendant. First, the record does not show that the
district court actually made a finding regarding whether the state would parole
Defendant. But in any event, there is no indication that the district court relied on
this statement in deciding to impose a consecutive sentence. See United States v.
Hall, 314 F.3d 565, 566 (11th Cir. 2002) (noting that plain error review generally
requires that the error “affected the outcome of the proceedings”); cf. United States
v. Slaton, 801 F.3d 1308, 1320 (11th Cir. 2015) (indicating that district court’s
reliance on a clearly erroneous fact may have affected the decision to grant a
downward variance). Indeed, the district court explained that it was imposing a
consecutive sentence before it made this statement. Therefore, the district court
did not err, much less plainly err, by ordering Defendant’s sentence to run
consecutive to his undischarged state sentence.
For all of these reasons, Defendant has not shown that his 24-month
sentence is procedurally unreasonable, and we affirm.
AFFIRMED.
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