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opinion should not be published and is not precedent except under the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