                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             JAN 03 2008
                              No. 07-12988                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 07-00004-CR-1-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

REGINALD MOONEY,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (January 3, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Reginald Mooney, a federal prisoner, appeals his 37-month
sentence imposed following his guilty plea for escaping from a facility in which he

was lawfully confined, in violation of 18 U.S.C. § 751(a).

        Mooney was originally convicted for possession of a firearm in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c). Mooney was sentenced

on March 6, 2003, to 125 months imprisonment for that offense and was

committed to serve his sentence in the United States Penitentiary Camp. On

December 11, 2006, a prison employee observed an unidentified person throw a

bag over the camp fence to Mooney. The employee confronted Mooney, and

demanded the bag as well as Mooney’s prison identification card. Mooney gave

the employee the bag, jumped across the fence, and then fled into the community.

The United States Marshals eventually apprehended Mooney on December 13,

2006.

        At sentencing, the court reviewed Mooney’s criminal history scoring, noting

that he had a criminal history category of VI. The court then stated that Mooney

was a career offender, his adjusted offense level was 14, and his Guidelines

imprisonment range was 37 to 46 months imprisonment. In addition to asking the

court to sentence him within the applicable Guidelines range as though he were not

a career offender, Mooney asked the court to run the sentence concurrently to his

pre-existing sentence. Mooney acknowledged that U.S.S.G. § 5G1.3 advised the



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court to run his sentence consecutively to his current sentence; however, he stated

that the court had the statutory authority to run any sentence concurrently. The

court ultimately sentenced Mooney to 37 months imprisonment, stating that,

“[p]ursuant to [s]ection 5G1.3(a) of the guidelines, this sentence is imposed to run

consecutively to the undischarged term of imprisonment” for his 2003 firearm

possession conviction.

      The court then stated that it was sentencing Mooney to the low-end of the

applicable Guidelines range because: (a) Mooney otherwise exhibited good

behavior while in prison; (b) his decision to escape appeared to be impulsive and

unplanned, and if he had thought about the consequences of escaping, he probably

would not have done so considering that he was a “sufficiently intelligent” person;

and (c) he surrendered to law enforcement officers without resistance, and he did

not attempt to flee when confronted by them. The court also noted that, although a

sentence at the high end of the applicable Guidelines range would have been

justifiable, “a little mercy [might] be in order.” The court then stated that:

      I also think that the guideline range and the sentence that I have
      imposed are fair and reasonable considering the sentencing factors set
      forth in [18 U.S.C. § 3553(a)], specifically the nature and
      circumstances of the offense and the history and characteristics of the
      Defendant.

            . . . . And I’m required by the guidelines under the
      circumstances of the case to impose a sentence that is consecutive to

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      the sentence that he was serving at the time of his escape, and I think a
      sentence of roughly three years sends a sufficient message to other
      inmates at the camp what it’s going to cost them if they try to escape
      when they are serving a sentence like that of Mr. Mooney.

      At the conclusion of the hearing, Mooney mentioned the fact he had not

received needed medical care while in custody for the instant offense, and the court

noted that it considered that fact when it decided to impose a low-end sentence.

Mooney then stated that he had no objections to the court’s ultimate findings, its

Guidelines calculations, his sentence, or the manner in which it was pronounced.

      On appeal, Mooney argues that considering: (a) the unplanned and

nonviolent nature of his escape; (b) his peaceful surrender to law enforcement

officers; (c) his otherwise good conduct while in prison; (d) the “oppressive”

conditions of his pretrial incarceration; and (e) the additional sanctions he will

suffer for the same conduct, such as the loss of “good time” credits, the district

court abused its discretion in failing to order that his sentence run concurrently to

his pre-existing sentence. He asserts that in determining whether multiple terms of

imprisonment are to run concurrently or consecutively, the sentencing court is

required to consider the factors set forth in 18 U.S.C. § 3553(a). Mooney claims

that, while the court considered the § 3553(a) factors in determining that a low-end

sentence was appropriate, it did not consider the factors with respect to its decision

to run his sentence consecutively. Mooney contends that consideration of the

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applicable § 3553(a) factors mitigate in favor of a concurrent sentence, and the

court’s failure to consider these factors in deciding whether to impose a concurrent

sentence is an abuse of discretion.     We review the district court’s application of

the Guidelines de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th

Cir. 2004). Additionally, 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). “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). However, in determining whether to impose a

concurrent or consecutive term, the district court must consider the factors set forth

in 18 U.S.C. § 3553(a). 18 U.S.C. § 3584(b); see also United States v. Ballard, 6

F.3d 1502, 1505 (11th Cir. 1993) (explaining that district court’s discretion in

deciding whether sentence will run consecutively or concurrently is tempered by

requirement that court consider § 3553(a) factors). Those factors include “the

nature and circumstances of the offense and the history and characteristics of the

defendant,” the need to provide adequate deterrence to criminal conduct, the kinds

of sentence and the applicable sentencing range, and any pertinent policy

statements issued by the Sentencing Commission. 18 U.S.C. § 3553(a)(1), (2)(B),

(4), (5). Section 5G1.3(a), the Guidelines provision used to determine whether to



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impose a consecutive or concurrent sentence on a defendant subject to an

undischarged term of imprisonment, provides in pertinent part that:

             If the instant offense was committed while the defendant was
             serving a term of imprisonment (including work release,
             furlough, or escape status) or after sentencing for, but before
             commencing service of, such term of imprisonment, the
             sentence for the instant offense shall be imposed to run
             consecutively to the undischarged term of imprisonment.

U.S.S.G. § 5G1.3(a) (2006). Application Note 1 states that, “[u]nder subsection

(a), the court shall impose a consecutive sentence when the instant offense was

committed while the defendant was serving an undischarged term of imprisonment

or after sentencing for, but before commencing service of, such term of

imprisonment.” Id., comment. (n.1).

      Additionally, in Ballard, 6 F.3d at 1506, we held that both 18 U.S.C. § 3584

and U.S.S.G. § 5G1.3(a) “evince a preference for consecutive sentences when

imprisonment terms are imposed at different times.”

      Here, we conclude from the record that the district court did not abuse its

discretion when it ordered Mooney’s sentence to run consecutively to his pre-

existing sentence. The court sentenced Mooney to 37 months imprisonment and

indicated that his sentence was imposed to run consecutively. The court then

specifically took the § 3553(a) factors into account in justifying its reasons for

imposing a low-end sentence. The court considered the history and characteristics

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of Mooney when it indicated that he exhibited good behavior while in prison, was

a “sufficiently intelligent” person, and was denied needed medical care while in

pretrial custody. The court also considered the nature and circumstances of the

offense when it noted that Mooney peacefully surrendered to law enforcement

officers upon being confronted by them. Additionally, the court discussed how

Mooney’s sentence would send a sufficient message to other inmates at the camp

regarding the potential consequences of escaping. Also, the court considered the

applicable Guideline, U.S.S.G. § 5G1.3(a), in deciding to impose a consecutive

sentence. Contrary to Mooney’s argument that the court failed to consider

the § 3553(a) factors with respect to its decision to impose a consecutive sentence,

the record shows that the court’s decision to sentence Mooney consecutively

flowed logically from its decision to impose a low-end sentence. Further, as

shown above, Mooney’s consecutive sentence reflected consideration of the 18

U.S.C. § 3553(a) factors. Thus, we conclude that the district court did not abuse its

discretion when it imposed a consecutive sentence. Accordingly, we affirm

Mooney’s sentence.

      AFFIRMED.




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