     Case: 09-31088 Document: 00511300494 Page: 1 Date Filed: 11/22/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 22, 2010
                                     No. 09-31088
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

QUINN J. DOMINGUE,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 6:08-CR-226-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Quinn J. Domingue pleaded guilty to possession of an unregistered
short-barreled shotgun, in violation of 26 U.S.C. § 5861(d). The district court
sentenced Domingue to 36 months in prison and ordered the sentence to run
consecutively to Domingue’s undischarged state probation revocation sentence
of five years. Domingue appeals, arguing that the district court was required to
impose a concurrent sentence pursuant to U.S. Sentencing Guideline (U.S.S.G.)
§ 5G1.3(b). Domingue also argues that his 36-month sentence is substantively

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-31088 Document: 00511300494 Page: 2 Date Filed: 11/22/2010

                                  No. 09-31088

unreasonable in light of 18 U.S.C. § 3553(a). For the reasons that follow, we
affirm.
      We review sentences, whether inside or outside the Guidelines, for
procedural error and substantive reasonableness in light of the Sentencing
Guidelines and the factors set out in § 3553(a). Gall v. United States, 552 U.S.
38, 46, 51 (2007); see United States v. Candia, 454 F.3d 468, 472 (5th Cir. 2006)
(applying the United States v. Booker, 543 U.S. 220 (2005), standard of review
to analyze the application of § 5G1.3(c)).       We review the district court’s
application of the Guidelines de novo, and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Multiple sentences of imprisonment are addressed in 18 U.S.C. § 3584,
which generally provides that “[m]ultiple 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).      Section 5G1.3 of the Guidelines
implements § 3584. See 28 U.S.C. § 994(a)(1)(D). Section 5G1.3(b) provides, in
pertinent part, as follows:
      If . . . a term of imprisonment resulted from another offense that is
      relevant conduct to the instant offense of conviction . . . and that
      was the basis for an increase in the offense level for the instant
      offense . . . the sentence for the instant offense shall be . . .
               (1)   adjust[ed] . . . for any period of imprisonment already
                     served on the undischarged term of imprisonment . . . ;
                     and
               (2)   . . . imposed to run concurrently to the remainder of the
                     undischarged term of imprisonment.

U.S.S.G. § 5G1.3(b). Subsection (b) does not apply “in cases in which the prior
offense increased the . . . offense level for the instant offense but was not
relevant conduct to the instant offense.” U.S.S.G. § 5G1.3 cmt. n.2(B). The term
“relevant conduct” has the meaning ascribed to it in § 1B1.3(a)(1), (2), or (3) of
the Guidelines. U.S.S.G. § 5G1.3(b).




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      Subsection (c) of § 5G1.3 indicates that in other cases involving an
undischarged term of imprisonment, “the sentence for the instant offense may
be imposed to run concurrently, partially concurrently, or consecutively . . . to
achieve a reasonable punishment for the instant offense” as determined by the
district court and its consideration of a number of factors. U.S.S.G. § 5G1.3(c)
& cmt. n.3(A).
      In the instant case, state law enforcement officers arrested Domingue and
charged him with possession with intent to distribute hydrocodone.               In
connection with the arrest, the officers seized a short-barreled shotgun which
had never been registered as required by federal law. Domingue pleaded guilty
to the state drug offense and received a sentence of five years, three years of
which were suspended pending the successful completion of supervised
probation. When state officers later arrested Domingue and charged him with
additional drug offenses, Domingue’s probation was revoked and he was
sentenced to five years in state prison (probation revocation sentence).
      Domingue was serving his probation revocation sentence when he was
sentenced in connection with the instant offense. Because Domingue’s probation
revocation sentence “resulted” not from his original state drug offense, which
was “relevant conduct to the instant offense . . . and . . . was the basis for an
increase in the offense level for the instant offense” but rather from his probation
violation, which was based on separate, unrelated criminal offenses, § 5G1.3(c)
controlled the outcome in the instant case. See United States v. Reyes-Lugo, 238
F.3d 305, 308-10 (5th Cir. 2001). Thus, the district court did not clearly err in
imposing a consecutive federal sentence. See id. Furthermore, because the
imposition of consecutive sentences was in keeping with § 5G1.3(c), the sentence
imposed on Domingue is a within-guidelines sentence entitled to the
presumption of reasonableness in all respects. See Candia, 454 F.3d at 471, 473,
478-479. Thus, Domingue’s arguments regarding the district court’s imposition



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                                     No. 09-31088

of a consecutive federal sentence are unavailing. See id. at 478-79; Reyes-Lugo,
238 F.3d at 308-10.
      Domingue’s arguments regarding the substantive reasonableness of his
sentence are also unavailing. When determining a defendant’s sentence, the
district court is required to make an individualized assessment based on the
facts presented. Gall, 552 U.S. at 50. In the instant case, the district court
conducted the individualized assessment required. It expressly adopted the
PSR’s findings of fact and calculations and considered the parties’ arguments
regarding the appropriate sentence. See id. at 49-50. It also reviewed the
§ 3553(a) factors, explaining in detail how its chosen sentence of 36 months
satisfied those factors.   See id.    The record reflects that the district court
“thoroughly and adequately articulated several § 3553(a) factors” that justified
the sentence it imposed. See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008). Domingue’s sentence remains substantively reasonable even if
we were to assume arguendo that it represented an upward departure or
variance by virtue of its consecutive nature. See United States v. Brantley, 537
F.3d 347, 349 (5th Cir. 2008).
      Domingue seeks to have this court re-weigh the § 3553(a) factors.
However, the fact that we “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
See Gall, 552 U.S. at 51. A defendant’s disagreement with the propriety of the
sentence imposed does not suffice to rebut the presumption of reasonableness
that attaches to a within-guidelines sentence. See, e.g., United States v.
Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008) (concluding that various
arguments for a non-guidelines sentence presented no reason to disturb the
presumption of reasonableness). Furthermore, Domingue’s argument that the
district court violated federal law when it considered his need for drug treatment
in fashioning a sentence is simply without merit. Section 3553(a)(2)(D) expressly
requires the district court to consider this factor, and we have affirmed many

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sentences, including above-guidelines sentences, based, in part, on a defendant’s
need for drug treatment. See, e.g., United States v. Peltier, 505 F.3d 389, 390,
394 n.16 (5th Cir. 2007); United States v. Pena, 125 F.3d 285, 287-88 (5th Cir.
1997). Thus, Domingue has not shown that his sentence was substantively
unreasonable, see Gall, 552 U.S. at 51, nor has he rebutted the presumption of
reasonableness that attaches to his within-guidelines sentence. See Rodriguez,
523 F.3d at 525-26.
      AFFIRMED.




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