              Case: 19-10853     Date Filed: 10/25/2019   Page: 1 of 6


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-10853
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 8:17-cr-00497-WFJ-SPF-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DOGA KUYON YUOH,

                                                              Defendant-Appellant.

                           ________________________

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

                                (October 25, 2019)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Doga Kuyon Yuoh appeals his 30-month sentence for possession of a firearm

by a convicted felon. On appeal, he argues that the district court procedurally erred
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by concluding it was required by law, under U.S.S.G. § 5G1.3, to impose his

sentence consecutive to his state sentence. After careful review, we affirm.

       We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the [] court abused its discretion.” United States v. Pugh, 515

F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted). We review the district court’s

application of § 5G1.3 de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09

(11th Cir. 2004). An appellant abandons issues not “plainly and prominently” raised

in his initial brief, even if he properly preserved them in the district court. United

States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). A passing reference in

a brief without substantive legal argument is insufficient to preserve an issue. Id.

       In reviewing a sentence for procedural reasonableness, we “‘ensure that the

district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence --

including an explanation for any deviation from the Guidelines range.’” Pugh, 515

F.3d at 1189 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 The party


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
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challenging a sentence bears the burden of showing that the sentence is unreasonable

in light of the entire record, the § 3553(a) factors, and the substantial deference

afforded sentencing courts. United States v. Rosales-Bruno, 789 F.3d 1249, 1256

(11th Cir. 2015).

       When the district court imposes a term of imprisonment on a defendant who

is already subject to an undischarged term of imprisonment, the court has discretion

to run the terms either concurrently or consecutively.                  18 U.S.C. § 3584(a).

“Multiple terms of imprisonment imposed at different times run consecutively unless

the court orders that the terms are to run concurrently.” Id.

       The Guidelines provide guidance concerning when a court should impose a

consecutive or concurrent sentence on a defendant who is subject to an undischarged

term of imprisonment. U.S.S.G. § 5G1.3. The relevant portions of § 5G1.3 provide:

       (a) If the instant offense was committed while the defendant was
       serving a term of imprisonment . . . the sentence for the instant offense
       shall be imposed to run consecutively to the undischarged term of
       imprisonment.

       (b) If subsection (a) does not apply, and a term of imprisonment resulted
       from another offense that is relevant conduct . . . the sentence for the
       instant offense shall be imposed as follows:

               (1) the court shall adjust the sentence for any period of
               imprisonment already served on the undischarged term of
               imprisonment if the court determines that such period of


pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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                  imprisonment will not be credited to the federal sentence by the
                  Bureau of Prisons; and

                  (2) the sentence for the instant offense shall be imposed to run
                  concurrently to the remainder of the undischarged term of
                  imprisonment.
                  ....

          (d) (Policy Statement) In any other case involving an undischarged term
          of imprisonment, the sentence for the instant offense may be imposed
          to run concurrently, partially concurrently, or consecutively to the prior
          undischarged term of imprisonment to achieve a reasonable punishment
          for the instant offense.

Id. § 5G1.3(a), (b), (d) (emphasis added).2 Only after finding that § 5G1.3(a), (b),

and (c) do not apply does the district court apply the residual provision in § 5G1.3(d).

See id.; see also United States v. Bradford, 277 F.3d 1311, 1317 (11th Cir. 2002)

(“Where, as in this case, neither subsection (a) or (b) of § 5G1.3 applies, the district

court has discretion to impose a consecutive sentence [under the residual provision]

to achieve a reasonable punishment.”).3 Section 5G1.3(a), along with 18 U.S.C. §

3584(a), “evince a preference for consecutive sentences when imprisonment terms

are imposed at different times.” United States v. Ballard, 6 F.3d 1502, 1506 (11th

Cir. 1993).




2
    The application of § 5G1.3(c) is not at issue in this case.
3
 At the time Bradford was decided, § 5G1.3 consisted of only three subsections and § 5G1.3(c)
was nearly identical to the current § 5G1.3(d).
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      Here, the district court did not procedurally err by imposing Yuoh’s federal

sentence consecutive to his state sentence under § 5G1.3(a), as that subsection of the

Sentencing Guidelines advises. For starters, Yuoh concedes that the district court

applied § 5G1.3(a) when he mentions § 5G1.3(a) in his summary of the sentencing

hearing proceedings in his initial brief, and the record makes clear that the district

court applied § 5G1.3(a). During the sentencing hearing, the court asked whether

counsel’s argument that § 5G1.3(b) should apply was precluded by § 5G1.3(a),

explained that it was overruling Yuoh’s objection that the court should apply §

5G1.3(b) because the state offense was not relevant conduct, and later stated that

“the law does require [the sentence] to be consecutive.” Indeed, the only subsection

mentioned by any party or the court during the sentencing hearing other than §

5G1.3(b) was § 5G1.3(a). Further, the district court’s statements were consistent

with the language of § 5G1.3(a), providing that “the sentence for the instant offense

shall be imposed to run consecutively,” and the preference for consecutive sentences

when imprisonment terms are imposed at different times. See Ballard, 6 F.3d at

1506. Because we interpret a district court’s statements to be consistent with the

law, the record reflects that the district court applied § 5G1.3(a), and applied it

correctly, when it imposed Yuoh’s federal sentence consecutive to his state sentence.

See United States v. Cataldo, 171 F.3d 1316, 1319 n.6 (11th Cir. 1999) (holding that




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a district court’s ambiguous oral statements are interpreted to be consistent with, and

not inconsistent with, the law).

      To the extent Yuoh suggests in this appeal that the district court procedurally

erred by not applying § 5G1.3(d) instead of § 5G1.3(a), he has abandoned the

argument that the district court erred in applying § 5G1.3(a) by not plainly and

prominently raising it in his initial brief. Jernigan, 341 F.3d 1283 n.8. And without

an argument as to why the district court erred by applying § 5G1.3(a), Yuoh’s

argument that the court should have instead applied the residual provision in §

5G1.3(d) necessarily fails. The plain language of § 5G1.3(d) provides that it applies

only “[i]n any other case,” which means that § 5G1.3(d) is a residual clause that

applies only if § 5G1.3(a), (b), and (c) do not apply. See U.S.S.G. § 5G1.3(d).

Further, nothing in the record indicates that anyone argued, nor that the district court

ever considered, whether § 5G1.3(d) applied. Accordingly, the district court did not

procedurally err by imposing Yuoh’s federal sentence consecutive to his state

sentence under § 5G1.3(a), and we affirm.

      AFFIRMED.




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