United States v. Donyel James Fitts , 571 F. App'x 836 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14229
Non-Argument Calendar
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D.C. Docket No. 5:13-cr-00002-RS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONYEL JAMES FITTS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 9, 2014)
Before HULL, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
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Donyel James Fitts appeals his three consecutive life terms of supervised
release, imposed after he pled guilty to three counts of production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e). We affirm.
I. BACKGROUND
Fitts was arrested after his girlfriend notified the Jackson County, Florida,
Sheriff’s Office she had found a digital camera containing child pornography. The
camera contained video showing the victim, his girlfriend’s four-year-old-
daughter, performing oral sex on Fitts, as well as nude pictures of the victim.
A federal grand jury indicted Fitts on four counts of production of child
pornography. Fitts pled guilty to three of the counts in exchange for the
government’s dismissal of the remaining count. During his sentencing hearing,
Fitts asked the district judge to impose consecutive 15-year sentences for each
count, the mandatory minimum for each offense. The government joined in the
request. Fitts was sentenced to consecutive 15-year sentences for each count; a
total of 45 years of imprisonment. The district judge also imposed three
consecutive life terms of supervised release. Neither party objected.
II. DISCUSSION
On appeal, Fitts argues the district judge plainly erred, when he imposed
consecutive, rather than concurrent, supervised-release terms, in violation of 18
U.S.C. § 3624(e) and U.S.S.G. § 5G1.2. When a convicted defendant did not raise
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a sentencing error before the district judge, we review for plain error only. See
United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010). Establishing
plain error requires the defendant show (1) an error (2) that was plain, (3) affected
one’s substantial rights, and (4) seriously affected the fairness of the judicial
proceedings. Id.Fitts argues the district judge erred by imposing three consecutive life terms
of supervised release. Under the clear language of 18 U.S.C. § 3624(e), terms of
supervised release must run concurrently. 18 U.S.C. § 3624(e); U.S.S.G. § 5G1.2,
comment. (n.2(C)); United States v. Magluta, 198 F.3d 1265, 1283 (11th Cir.
1999), vacated in part on other grounds, 203 F.3d 1304 (11th Cir. 2000).
Therefore, the district judge committed error that was plain, when he sentenced
Fitts to consecutive, rather than concurrent, supervised-release terms. See
Magluta, 198 F.3d at 1283.
The error, however, did not affect Fitts’s substantial rights, because his total
term of supervised release, life, would remain the same even without the error. See
United States v. Gallego, 247 F.3d 1191, 1200 n.19 (11th Cir. 2001) (recognizing
combining consecutive sentences “to equal life imprisonment are effectively the
same as one sentence of life imprisonment,” and a defendant’s substantial rights
are unaffected by affirming the sentence”). Fitts has identified no consequences,
collateral or otherwise, from the imposition of consecutive life terms of supervised
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release that could affect his substantial rights. Therefore, he has failed to satisfy
the third prong of the plain-error test.
AFFIRMED.
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