[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 30, 2009
No. 09-10353 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00036-CR-1-MHS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON PATRICK PATTERSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 30, 2009)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jason Patrick Patterson appeals his 120-month sentence imposed after he
pled guilty to: conspiracy to receive, possess, and transfer an unregistered machine
gun, in violation of 18 U.S.C. § 371; aiding and abetting receipt and possession of
an unregistered machine gun, in violation of 26 U.S.C.§§ 5812, 5845(a) and (b),
5861(d), and 5871, and 18 U.S.C. § 2; aiding and abetting the transfer of an
unregistered machine gun, in violation of 26 U.S.C. §§ 5812, 5845(a) and (b),
5861(e), and 5871, and 18 U.S.C. § 2; and unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Patterson
committed the federal offenses between March 7 and March 16, 2006. The district
court directed Patterson’s 120-month sentence run consecutive to his undischarged
state sentence of life plus 120 years’ imprisonment, which he received based on his
actions during a March 25, 2006, home invasion. This appeal raises the following
issues: (1) whether the district court plainly erred in applying U.S.S.G. § 5G1.3(c)
and directing Patterson’s federal sentence run consecutive to his state sentence, and
(2) whether the district court imposed an unreasonable sentence by directing
Patterson’s federal sentence run consecutive to his undischarged state sentence.
I.
Patterson first argues the district court erred in applying U.S.S.G.
§ 5G1.3(c) and directing his federal sentence run consecutive to his state sentence.
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He contends the district court should have directed his federal sentence run
concurrent to his undischarged state sentence pursuant to § 5G1.3(b).
We review de novo a district court’s determination a defendant’s sentence
should run consecutively to his undischarged state sentence. United States v.
Fuentes, 107 F.3d 1515, 1520 (1997). However, we review issues not raised
before the district court for plain error. United States v. Gerrow, 232 F.3d 831,
835 (11th Cir. 2000). Under plain error review, we may, in our discretion, correct
an error where (1) an error occurred, (2) the error was plain, (3) the error affects
substantial rights, and (4) “the error seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Olano, 113 S. Ct.
1770, 1777-79 (1993).
Section 5G1.3 of the Federal Sentencing Guidelines provides, in relevant
part:1
(b) If subsection (a) does not apply, and a term of imprisonment
resulted from another offense that is relevant conduct to the
instant offense of conviction under 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
Subsection (a) of U.S.S.G. § 5G1.3 is not discussed because the parties agree, and it is
clear, it does not apply in this case.
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(1) the court shall adjust the sentence for any period of
imprisonment already served on the discharged 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; and
(2) the sentence for the instant offense shall be imposed to
run concurrently to the remainder of the undischarged
term of imprisonment.
(c) (Policy Statement) In any other case involving an undischarged
term of imprisonment, 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(b), (c) (2008).
“Sections 5G1.3 and 1B1.3 interact to protect a criminal defendant from
duplicative prosecutions . . . These sections seek ‘to provide one, uniform
punishment for the same criminal activity.’” United States v. Bidwell, 393 F.3d
1206, 1209 (11th Cir. 2004) (citing Fuentes, 107 F.3d at 1522). When evaluating
whether two or more offenses are part of the same course of conduct as provided
for under U.S.S.G. § 1B1.3, the sentencing court should consider the degree of
similarity between the offenses, the regularity (repetition) of the offenses, and the
time interval between the offenses. U.S.S.G. § 1B1.3, cmt. n.9(B); see also
Fuentes, 107 F.3d. at 1525.
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Here, Patterson relies upon our decision in Fuentes for the proposition the
district court erred by failing to sua sponte treat his state offenses as part of the
same course of conduct as his federal offenses pursuant to § 1B1.3.2 This
argument lacks merit because, unlike the offenses in Fuentes, Patterson’s state and
federal offenses were not “nearly identical,” and there is no indication the offenses
“were committed with clear regularity.” See Fuentes, 107 F.3d at 1525. While
Patterson and his co-defendant did possess two of the firearms present during the
March 16 weapons transaction, the March 25 home invasion also involved
kidnaping, aggravated assault, and armed robbery. The present case is also
distinguishable from Fuentes because this case did not involve “a deliberate
attempt by the Government to manipulate the application of the sentencing
guidelines.” Bidwell, 393 F.3d at 1211. Accordingly, the district court did not
plainly err by applying § 5G1.3(c) in this case.
II.
Patterson next argues, even if § 5G1.3(c) applies, the district court
disregarded its ability to impose a concurrent sentence. He contends the district
2
In Fuentes, the district court sentenced the defendant to a federal sentence to run
consecutively to an undischarged state court one, in which both cases involved the dismantling of
automobiles to sell their parts for money. 107 F.3d at 1516. This Court concluded the conduct
underlying the state and federal offenses constituted the same course of conduct and held the federal
sentence was to run concurrently with the state sentence. Id. at 1525.
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court’s failure to impose a concurrent sentence resulted in an unreasonable
sentence.
The imposition of consecutive rather than concurrent sentences is an issue of
law subject to plenary review. United States v. Perez, 956 F.2d 1098, 1101 (11th
Cir. 1992). In determining whether to impose a concurrent or consecutive term,
the district court must consider, inter alia, the factors set forth in 18 U.S.C. § 3584
(referencing § 3553(a)), the type and length of the undischarged sentence, the time
served on the undischarged sentence, and any other relevant circumstances.
U.S.S.G. § 5G1.3, cmt. n.3. “Multiple terms of imprisonment imposed at different
times run consecutively unless the court orders that the terms are to run
concurrently.” 18 U.S.C. § 3584(a). We have concluded 18 U.S.C. § 3584
“evince[s] a preference for consecutive sentences when imprisonment terms are
imposed at different times.” United States v. Ballard, 6 F.3d 1502, 1506 (11th Cir.
1993).
“We review the final sentence imposed by the district court for
reasonableness.” United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir. 2007).
The reasonableness standard is synonymous with the abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007). In considering the § 3553(a)
factors, the district court need not discuss each of them individually. Rather, “an
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acknowledgment by the district court that it has considered the defendant’s
arguments and the factors in section 3553(a) is sufficient.” United States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005). Ordinarily, we would expect a sentence within
the guideline range to be reasonable. Id. at 788.
Here, the district court considered the length of Patterson’s undischarged
state sentence prior to imposing the federal sentence. The district court also
discussed other factors relevant under § 3584. For example, the district court
stated it had fashioned the federal sentence to address “the goals of deterrence,
punishment, and incapacitation and the violent nature of the defendant,” and it
noted it had taken into account the § 3553(a) factors. Furthermore, the sentence
was within the guideline range. Based on the district court’s consideration of the
relevant factors and the facts of this case, we conclude the district court did not err
in directing Patterson’s federal sentence run consecutive to his undischarged state
sentence, and Patterson’s federal sentence is not unreasonable. Accordingly, we
affirm.
AFFIRMED.
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