                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                   AUGUST 24, 2010
                                       No. 10-10368                  JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                            D.C. Docket No. 1:08-cr-20336-DLG-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff - Appellee,

            versus

SHELDON O. SHORTER,

lllllllllllllllllllll                                          Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (August 24, 2010)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Sheldon O. Shorter appeals his 24-month sentence for aggravated identity

theft in violation of 18 U.S.C. § 1028A. On appeal, Shorter argues that the district
court incorrectly concluded that it was required by § 1028A to impose a sentence

that would run consecutively to a prior, undischarged sentence he received for

drug offenses. Shorter also argues that the statutory sentencing scheme found in §

1028A violated his due process rights.

      “We review issues of statutory interpretation de novo.” United States v.

Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (citation omitted). In interpreting

a statute, a court should first “determine whether the language at issue has a plain

and unambiguous meaning with regard to the particular dispute.” United States v.

Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (citation and quotation omitted).

“If the statute’s meaning is plain and unambiguous, there is no need for further

inquiry.” Id. at 1338. “[T]his Court must assume that Congress used the words of

the statute as they are commonly and ordinarily understood and must construe the

statute so each of its provisions is given full effect.” United States v. McLymont,

45 F.3d 400, 401 (11th Cir. 1995) (per curiam) (citation omitted). However,

where actual ambiguities exist in a criminal statute, the “rule of lenity” requires

that such ambiguities be resolved in favor of criminal defendants. United States v.

Trout, 68 F.3d 1276, 1280 (11th Cir. 1995) (per curiam) (citation omitted).

Further, to the extent that any ambiguity exists in the plain language of a statute,

we may apply the doctrine of constitutional doubt, which instructs us “to construe

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a statute that is genuinely susceptible to two constructions in favor of the

construction that avoids a serious likelihood that the statute will be held

unconstitutional.” Tilton v. Playboy Entm’t Group, Inc., 554 F.3d 1371, 1376

(11th Cir. 2009) (citation and quotation omitted).

        Under 18 U.S.C. § 1028A(a)(1),

        Whoever, during and in relation to any felony violation enumerated in
        subsection (c), knowingly transfers, possesses, or uses, without lawful
        authority, a means of identification of another person shall, in
        addition to the punishment for such felony, be sentenced to a term of
        imprisonment of 2 years.

The relevant portion of § 1028A(b), relating to consecutive sentences, provides

that:

        Notwithstanding any other provision of law . . . except as provided in
        paragraph (4), no term of imprisonment imposed on a person under
        this section shall run concurrently with any other term of
        imprisonment imposed on the person under any other provision of
        law, including any term of imprisonment imposed for the felony
        during which the means of identification was transferred, possessed,
        or used;

Id. § 1028A(b)(2). The exception to this requirement for consecutive sentences

provides that a court has the discretion to impose a concurrent sentence “only with

another term of imprisonment that is imposed by the court at the same time on that

person for an additional violation of this section.” Id. § 1028A(b)(4).       The

statute additionally states that:

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      in determining any term of imprisonment to be imposed for the felony
      during which the means of identification was transferred, possessed,
      or used, a court shall not in any way reduce the term to be imposed
      for such crime so as to compensate for, or otherwise take into
      account, any separate term of imprisonment imposed or to be imposed
      for a violation of this section.

Id. § 1028A(b)(3).

      Although we have not addressed in a published opinion whether § 1028A

requires a court to impose a two-year sentence that runs consecutively to a

previous, unrelated sentence, we have held that similar language in 18 U.S.C.

§ 924(c) requires a court to impose a sentence under that statute to run

consecutively to separate, undischarged state sentences. See McLymont, 45 F.3d

at 402. The relevant statutory language we interpreted in McLymont provided:

      Notwithstanding any other provision of law, the court shall not place
      on probation or suspend the sentence of any person convicted of a
      violation of this subsection, nor shall the term of imprisonment
      imposed under this subsection run concurrently with any other term
      of imprisonment including that imposed for the crime of violence or
      drug trafficking crime in which the firearm was used or carried.

Id. at 401 (quoting 18 U.S.C. § 924(c) (1995)).1 We noted that “Congress’ use of

      1
          The current version of § 924(c)(1)(D) provides:

      Notwithstanding any other provision of law (i) a court shall not place on probation
      any person convicted of a violation of this subsection; and (ii) no term of
      imprisonment imposed on a person under this subsection shall run concurrently
      with any other term of imprisonment imposed on the person, including any term
      of imprisonment imposed for the crime of violence or drug trafficking crime
      during which the firearm was used, carried, or possessed.

                                                4
the phrase ‘notwithstanding any other provision of law’ makes it clear that

Congress intended the penalty provisions of § 924(c) to take precedence over any

preexisting or subsequently-enacted sentencing legislation.” Id. We further held

that “Congress’ use of the language ‘nor shall the term of imprisonment imposed

under this subsection run concurrently with any other term of imprisonment’

clearly evinces a Congressional intent that the mandatory punishment be in

addition to any other term of imprisonment” regardless of what underlying

conduct the other sentence encompassed. Id.

      We also review the constitutionality of a statute de novo. United States v.

Ambert, 561 F.3d 1202, 1205 (11th Cir. 2009) (citation omitted). Due process

requires that a sentencing scheme be rational and not based on an arbitrary

distinction. Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 1927

(1991) (noting that, in this context, “an argument based on equal protection

essentially duplicates an argument based on due process”). “Congress has the

power to define criminal punishments without giving the courts any sentencing

discretion,” and even a sentencing scheme that does not consider individual

degrees of culpability may still be constitutional. Id. at 467; 111 S. Ct. at 1928–29




      We find that the interpretation of § 924(c) in McLymont is still applicable to this case.

                                                5
(citation omitted). “Where a statute does not discriminate on racial grounds or

against a suspect class, Congress’ judgment will be sustained in the absence of

persuasive evidence that Congress had no reasonable basis for drawing the lines

that it did.” United States v. Grinnell, 915 F.2d 667, 669 (11th Cir. 1990) (per

curiam) (alteration omitted) (citation and quotation omitted). Thus, “[o]ur

responsibility is not to determine whether this was the correct judgment or whether

it best accomplishes Congressional objectives; rather, our responsibility is only to

determine whether Congress’ judgment was rational.” United States v. Holmes,

838 F.2d 1175, 1178 (11th Cir. 1988) (holding that because the sentencing scheme

in 18 U.S.C. § 841(b)(1) is rational, the defendant was denied neither due process

nor equal protection under the Fifth Amendment).

      We recently held that an imposition of a consecutive sentence under

§ 1028A(b) does not violate the Double Jeopardy Clause of the Fifth Amendment

and noted that legislative history shows that “§ 1028A was enacted to enhance the

penalties for ‘persons who steal identities to commit terrorist acts, immigration

violations, firearms offenses, and other serious crimes’” and “the statute’s ‘2-year

penalty enhancement is in addition to any term of imprisonment for the underlying

offense.’” United States v. Bonilla, 579 F.3d 1233, 1242 n.3 (11th Cir. 2009)

(quoting H.R. Rep. No. 108-528 (2004)), cert. denied, 130 S. Ct. 2361 (2010).

                                          6
      Upon review of the record and consideration of the parties’ briefs, we

affirm. In light of the plain language of § 1028A(b)(2), the district court correctly

determined that it was required to impose a two-year sentence that runs

consecutively to Shorter’s prior, unrelated sentence for drug trafficking. Further,

the statutory sentencing scheme found in § 1028A did not violate Shorter’s

constitutional rights because the scheme is rational and not based on an arbitrary

distinction.



      AFFIRMED.




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