           Case: 15-12176    Date Filed: 12/31/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12176
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:14-cr-00122-WS-N-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

RICHARD LEE WATTS,

                                                          Defendant-Appellant.

                      ________________________

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

                            (December 31, 2015)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Defendant Richard Watts appeals his 24-month sentence imposed after he

pleaded guilty to being a felon in possession of ammunition, in violation of 18

U.S.C. § 922(g). On appeal, Defendant argues that his sentence is procedurally

unreasonable because the district court relied on clearly erroneous facts to support

its decision to run his federal sentence consecutive to an undischarged state

sentence. After careful review, we affirm.

I. BACKGROUND

      In 2014, law enforcement officers received information that Defendant was

in possession of stolen firearms. Officers traveled to Defendant’s home, and he

consented to a search of the residence. Officers found ammunition, but did not

find any firearms. After receiving additional information the next day, officers

returned to Defendant’s residence and located three firearms and ammunition.

      A federal grand jury subsequently issued an indictment, charging Defendant

with being a felon in possession of ammunition, in violation of § 922(g)(1).

Defendant later pleaded guilty without the benefit of a plea agreement.

      According to the presentence investigation report (“PSR”), in 2012,

Defendant pled guilty to receiving stolen property in state court and received a

15-year suspended sentence and 3 years’ probation. However, due to Defendant’s

involvement in the present offense, the State of Alabama therefore revoked his

probation in 2014 and sentenced him to 15 years’ imprisonment.


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      At his sentencing in the present case, Defendant urged the district court to

consider this 15-year state sentence in deciding the appropriate sentence for the

federal offense. Specifically, because it was the federal offense that caused his

probation to be revoked, Defendant requested that the district court direct that any

federal sentence run concurrently with the state sentence.

      The district court stated that there was no reason for the federal sentence to

run concurrent to the state sentence because the state conviction predated the

instant federal offense and the two convictions were not related. The district court

then went on to say:

      I will tell you that it’s my understanding and experience that the State
      of Alabama is looking to release their inmates into Federal custody.
      So probably what’s going to happen to you is you’re going to get
      paroled into Federal custody as soon as they find out you’ve been
      sentenced in Federal Court, which will work to your benefit, get you
      out of a State institution into a Federal institution. So I’m going to
      order that the sentence run consecutive just because there’s no reason
      to run it concurrent at this time.

Ultimately, the district court sentenced Defendant to 24 months’ imprisonment,

which was at the low end of the guideline range, to run consecutive to his state

sentence.

II. DISCUSSION

      Using a two-step process, we review the reasonableness of a district court’s

sentence for an abuse of discretion. United States v. Cubero, 754 F.3d 888, 892

(11th Cir. 2014), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the
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district court committed any significant procedural error, such as miscalculating

the advisory guideline range, treating the Sentencing Guidelines as mandatory,

failing to consider the 18 U.S.C. § 3553(a) factors, 1 selecting a sentence based on

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

Then we examine whether the sentence is substantively reasonable in light of the

totality of the circumstances. Id. The party challenging the sentence bears the

burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008).

       When a defendant raises a sentencing argument on appeal that was not

raised before the district court, including a challenge to the procedural

reasonableness of his sentence, we review for plain error. See United States v.

Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). Under plain error review, we

will reverse where there is “(1) an error (2) that is plain and (3) that has affected

the defendant’s substantial rights; and . . . (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (quotations and alteration omitted).


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  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need 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
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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      “[I]f a term of imprisonment is imposed on a defendant who is already

subject to an undischarged term of imprisonment,” the district court may impose

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

district court must consider the § 3553(a) factors when determining whether the

sentences should run concurrently or consecutively. Id. § 3584(b). The

Sentencing Guidelines further provide that “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.” U.S.S.G. § 5G1.3(d). If the defendant was on federal or state

probation, parole, or supervised release at the time of the instant offense, and has

had such probation, parole, or supervised release revoked, the Guidelines

recommend that the sentence for the instant offense run consecutively to the

sentence imposed for the revocation. Id. § 5G1.3, comment. (n.4(C)) (emphasis

added).

      On appeal, Defendant only challenges the procedural reasonableness of his

sentence. Specifically, he argues that the district court procedurally erred in

imposing a consecutive sentence because it relied on clearly erroneous facts,

namely that Defendant’s state and federal convictions were not related and that the

State of Alabama would “probably” parole Defendant into federal custody upon

learning of his federal sentence. Because Defendant did not challenge the


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procedural reasonableness of his sentence before the district court, we review his

arguments on appeal for plain error. See Vandergrift, 754 F.3d at 1307.

      The district court did not plainly err in imposing a 24-month sentence to run

consecutively to Defendant’s undischarged state sentence. In determining whether

to run Defendant’s sentence consecutively or concurrently, the district court

considered the § 3553(a) factors and noted that it was imposing a consecutive

sentence because Defendant’s state conviction predated his federal offense and the

two convictions were not related. See 18 U.S.C. § 3584(a), (b).

      Contrary to Defendant’s contentions on appeal, the district court did not rely

on clearly erroneous facts. The evidence in the record showed that the present

federal offense for being a felon in possession of ammunition was not related to

Defendant’s 2012 conviction for receiving stolen property. In fact, Defendant

explicitly stated at the sentencing hearing that the convictions were not related.

While Defendant is correct that the federal offense caused his state probation to be

revoked, this does not mean the convictions are related, as Defendant’s 2012

conviction did not serve as a basis for an increase in his offense level or qualify as

relevant conduct for his federal offense. See U.S.S.G. § 5G1.3(b) (providing for a

concurrent sentence where an undischarged term of imprisonment is for an offense

that is relevant conduct to the instant offense). Notably, the Guidelines

recommend the imposition of a consecutive sentence in situations such as this case,


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where the defendant was on state probation at the time of the instant offense and

has since had that probation revoked. Id. § 5G1.3, comment. (n.4(C)).

      We are also not persuaded that Defendant’s sentence is procedurally

unreasonable because of the district court’s statement that the State of Alabama

would “probably” parole Defendant. First, the record does not show that the

district court actually made a finding regarding whether the state would parole

Defendant. But in any event, there is no indication that the district court relied on

this statement in deciding to impose a consecutive sentence. See United States v.

Hall, 314 F.3d 565, 566 (11th Cir. 2002) (noting that plain error review generally

requires that the error “affected the outcome of the proceedings”); cf. United States

v. Slaton, 801 F.3d 1308, 1320 (11th Cir. 2015) (indicating that district court’s

reliance on a clearly erroneous fact may have affected the decision to grant a

downward variance). Indeed, the district court explained that it was imposing a

consecutive sentence before it made this statement. Therefore, the district court

did not err, much less plainly err, by ordering Defendant’s sentence to run

consecutive to his undischarged state sentence.

      For all of these reasons, Defendant has not shown that his 24-month

sentence is procedurally unreasonable, and we affirm.

      AFFIRMED.




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