           Case: 13-11102   Date Filed: 08/13/2014   Page: 1 of 10


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11102
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:12-cr-00026-MTT-CHW-1



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                               versus

WILLIE JAMES HAUGABROOK,

                                                      Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (August 13, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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          Willie James Haugabrook was convicted by a jury of, having been convicted

of a crime punishable by imprisonment for a term exceeding one year, knowingly

receiving and possessing a firearm that had been previously shipped and

transported in interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). He was sentenced to a 120-month term of imprisonment, to run

consecutively with a prior undischarged state sentence. He appeals both the

conviction and sentence. We will address each challenge in turn.

                                             I.

          Haugabrook argues on appeal that the district court erred by giving the flight

instruction, because there was insufficient evidence in his case to support the

inferential chain from flight to guilt for the charged offense. He contends that the

evidence was equally compatible with the conclusion that he fled because he was

accosted in a high crime area or because of an outstanding parole warrant for his

arrest.

           Haugabrook also argues that the flight instruction given was inadequate

and misleading because it failed to expressly identify multiple possible reasons for

his flight and to incorporate safeguards of which we and other courts have

approved. Haugabrook acknowledges that in United States v. Williams, 541 F.3d

1087, 1089 (11th Cir. 2008), we upheld a flight instruction analogous to the

instruction given in his case, but he asks us to overturn Williams.


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      We review a district court’s jury instructions under an abuse of discretion

standard. See Williams, 541 F.3d at 1089 (11th Cir. 2008). We review the legal

correctness of a jury instruction de novo, but defer to the district court on questions

of phrasing, absent an abuse of discretion. United States v. Prather, 205 F.3d

1265, 1270 (11th Cir. 2000).

      Evidence of flight is generally admissible as circumstantial evidence of guilt.

See United States v. Borders, 693 F.2d 1318, 1324-1326 (11th Cir. 1982); see also

United States v. Blakey, 960 F.2d 996, 1000 (11th Cir. 1992). Giving the flight

instruction is not an abuse of discretion where the evidence could lead a reasonable

jury to conclude that the defendant fled to avoid apprehension for the charged

crime. Williams, 541 F.3d at 1089. When reviewing the sufficiency of the

evidence for a flight instruction, we view the evidence in the light most favorable

to the government. See United States v. Wright, 392 F.3d 1269, 1279 (11th Cir.

2004).

      We have approved the flight instruction even where the evidence could

support more than one motive for flight, indicating that “it is for the jury to infer”

the source of the defendant’s guilt. Wright, 392 F.3d at 1279. For example, in

Williams, we held that the district court’s flight instruction was not an abuse of

discretion in a trial for a drug possession charge, where police officers’ impetus for

pursuing the defendant was an outstanding arrest warrant. 541 F.3d at 1088-89.


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The defendant led the officers on a high speed chase, and, once they apprehended

him, the officers found drugs in the defendant’s car. Id. at 1088. See also Wright,

392 F.3d at 1271-72, 1277-79 (concluding the district court did not plainly err by

giving flight instruction at trial on a firearm possession charge, where police

attempted to arrest defendant for driving under the influence, he resisted arrest, and

police later found firearm in his car).

      District courts have broad discretion in crafting jury instructions, provided

the charge as a whole accurately reflects the law and the facts. United States v.

Kennard, 472 F.3d 851, 854 (11th Cir. 2006). We examine whether the charge

sufficiently instructed the jurors so that they understood the issues and were not

misled. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001).

      We have indicated that a flight instruction is not an abuse of discretion if it

informs jurors that it is up to them to determine whether the evidence proved flight.

See Borders, 693 F.2d at 1328. We have upheld flight instructions of varying

degrees of specificity. See e.g. Williams, 541 F.3d at 1089 (upholding flight

instruction with less detail than the flight instruction in the instant case); Borders,

693 F.2d at 1327-28 (upholding flight instruction with significantly more detail

than the instruction in the instant case).

      In this case, the evidence permitted the jury to conclude that Haugabrook’s

flight was motivated by his knowledge that he illegally possessed a firearm. The


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evidence showed that Haugabrook began to slowly flee as soon as the officers

approached, and that once he saw that the officers continued to pursue him, he ran.

The evidence, viewed in the light most favorable to the government, also showed

that Haugabrook discarded a firearm as he was being chased. While the evidence

may have permitted the jury to conclude that Haugabrook fled for other reasons,

the reason for a defendant’s flight is a question for the jury, Wright, 392 F.3d at

1279. Accordingly, the district court did not abuse its discretion by giving the

flight instruction.

       Further, the flight instruction given was not an abuse of discretion because it

informed the jurors that it was up to them to determine whether the evidence

proved flight. Borders, 693 F.2d at 1328. The jury instruction stated:

       The flight of a Defendant is a circumstance which may be taken
       into consideration with all other facts and circumstances of the
       evidence. If you find from the evidence beyond any reasonable
       doubt that the Defendant fled, and that his flight was for the
       purpose of avoiding arrest for the charge in the indictment, as
       opposed to some other reason, you may take this fact into
       consideration in determining the Defendant’s guilt or
       innocence.

       The district court expressly instructed the jury to take Haugabrook’s flight

into consideration as circumstantial evidence of guilt only if it found, beyond a

reasonable doubt, that he fled to avoid the charged crime. Williams, 541 F.3d at




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1089. Accordingly, the district court did not abuse its discretion in its choice of

flight instruction.1

                                              II.

       Haugabrook also argues on appeal that the district court erred in not relating

its consideration of the factors in 18 U.S.C. § 3553(a) and his arguments for a

sentence under the guideline range to its decision to impose his 120-month

sentence to run consecutively to his undischarged state sentence. He

acknowledges that the district court considered the § 3553(a) factors and his

arguments in issuing the 120-month prison term.

       We review the reasonableness of a district court’s sentence under a

deferential abuse of discretion standard. See Peugh v. United States, 133 S.Ct.

2072, 2080, 186 L.Ed.2d 84 (2013). The party challenging the sentence has the

burden of establishing its unreasonableness. United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). We review objections raised on appeal that were not timely

raised in the district court, including objections to reasonableness of a sentence, for

plain error. See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315-16

(11th Cir. 2005) (applying plain error review to challenge based on district court’s

failure to treat the Guidelines as advisory); see also United States v. Irey, 612 F.3d
       1
              Haugabrook asks us to overturn our precedent upholding flight instructions
analogous to the instruction given in his case. However, only this Court sitting en banc or the
Supreme Court may overrule a prior panel decision. United States v. Woodard, 938 F.2d 1255,
1258 (11th Cir. 1991).

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1160, 1223 n.44 (11th Cir. 2010) (en banc) (post-Booker decision explaining when

plain error review is warranted).

      Plain error review requires that we find “an ‘error’ that is ‘plain’ and that

‘affect[s] substantial rights.’” Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). The “plain”

requirement means that, “at a minimum [we] cannot correct [the] error . . . unless

the error is clear under current law.” Id. 507 U.S. at 734, 113 S.Ct. at 1777.

Moreover, the Supreme Court has indicated that we should decline to correct a

forfeited error unless it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. 507 U.S. at 732, 113 S.Ct. at 1776

(citations omitted).

      Multiple terms of imprisonment, imposed at different times, run

consecutively unless the district court orders that the terms run concurrently.

18 U.S.C. § 3584(a). The district court must consider the factors set forth in

18 U.S.C. § 3553(a) in determining whether a consecutive sentence is appropriate,

including the nature and circumstances of the offense, the history and

characteristics of the defendant, the Sentencing Guidelines, and any pertinent

policy statements issued by the Sentencing Commission. 18 U.S.C. § 3584(b);

18 U.S.C. § 3553(a)(1),(4),(5). However, the court is not required to state on the

record that it has explicitly considered each of the § 3553(a) factors or to discuss


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the factors individually. Cf. Talley, 431 F.3d at 786 (discussing procedural

reasonableness of sentences, generally). It is sufficient if the court acknowledges

that it has considered the defendant’s arguments and the § 3553(a) factors. See

United States v. McNair, 605 F.3d 1152, 1231 (11th Cir. 2010) (discussing

reasonableness of sentences, generally).

      A policy statement in the Guidelines provides that, except in special cases

not applicable here, a sentence may be imposed to run concurrently, partially

concurrently, or consecutively to any prior undischarged sentence in order to

achieve a reasonable punishment for the instant offense. U.S.S.G. § 5G1.3(c). The

Sentencing Commission recommends a consecutive sentence if, as here, the

defendant was on probation, parole, or supervised release at the time of the instant

offense and has had such probation, parole, or supervised release revoked.

U.S.S.G. § 5G1.3(c), comment. (n.3(C)); see also § 7B1.3(f) (recommending a

consecutive sentence in cases involving federal revocation of probation or

supervised release).

      As an initial matter, plain error review applies because Haugabrook did not

object in any way to the consecutive nature of his sentence before the district court.

Next, Haugabrook is correct that the district court did not separately explain its

reasons for issuing a consecutive sentence. However, the record indicates that the

district court was aware of Haugabrook’s arguments and the § 3553(a) factors


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when it pronounced the consecutive nature of his sentence, because earlier it

acknowledged the maximum release date for his state sentence and, as Haugabrook

acknowledges, explicitly stated its consideration of the § 3553(a) factors and his

arguments with regard to its issuance of a 120-month prison term. In addition,

before issuing the sentence, the court noted its consideration of the presentence

investigation report, which stated the Sentencing Commission’s preference for

consecutive sentences in cases like Haugabrook’s.

      Moreover, Haugabrook has not demonstrated that any error in his case was

“plain,” because our precedent does not clearly establish that the district court must

separately explain its reasons for issuing a consecutive sentence. See Olano, 507

U.S. 733, 113 S.Ct. 1777. In addition, any error in this case has not “seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings.”

See id., 507 U.S. at 732, 113 S.Ct. at 1776. The district court’s decision to issue a

consecutive sentence was in accordance with the policy recommendations in the

Sentencing Guidelines. Moreover, the record shows that the district court took

Haugabrook’s arguments and the § 3553(a) factors into account, generally, in

issuing its sentence. See McNair, 605 F.3d at 1231. As a result, the district court’s

failure to restate its consideration of the § 3553(a) factors and Haugabrook’s

arguments or to specifically explain its reasons for issuing a consecutive sentence

did not constitute plain error.


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       Accordingly, because the district court did not abuse its discretion in giving

the flight instruction in this case or plainly err in failing to relate its consideration

of the Guidelines and the reasons for its chosen sentence to its decision to issue a

consecutive sentence, we affirm Haugabrook’s conviction and sentence.

       AFFIRMED.




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