United States v. Joseph Lee Musson ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11946 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 30, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00481-SDM-TBM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllPlaintiff-Appellee,
versus
JOSEPH LEE MUSSON,
lllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 30, 2011)
Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Joseph Lee Musson pled guilty to all three counts of an indictment: Count
One, use of a facility of interstate commerce with intent that a murder be
committed for pay, in violation of 18 U.S.C. § 1958(a); Count Two, use and
possession of a firearm in furtherance of a crime of violence, in violation of 18
U.S.C. § 924(c); and Count Three, possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court thereafter
sentenced him to imprisonment for a total of 300 months: 120 months on Count
One, and consecutive terms of 240 months and 60 months on Counts Three and
Two, respectively, to run concurrently with the Count One sentence. Musson now
appeals his sentences, contending that the total term of imprisonment, 300 months,
is procedurally and substantively unreasonable.1
I.
When reviewing the reasonableness of a sentence, we apply the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct.
586, 594, 169 L.Ed.2d 445 (2007). After the Supreme Court handed down United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we
established a two-part process for district courts to use in determining sentences.
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Musson also contends that the district court erred in imposing a consecutive sentence
on Count Two under 18 U.S.C. § 924(c) because such sentence contradicts the “except” clause of
that statute. He concedes that our precedent holds otherwise, but raises the point so that he will
be able to present it to the Supreme Court.
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United States v. McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). First, the district
court must consult and correctly calculate the sentence range prescribed by the
Sentencing Guidelines. Second, the district court must fashion a reasonable
sentence by considering the factors enumerated in 18 U.S.C. § 3553(a). Id.When reviewing for procedural reasonableness, we ensure that the district
court (1) properly calculated the Guidelines sentence range, (2) treated the
Guidelines as advisory, (3) considered the § 3553(a) factors, (4) did not select a
sentence based on clearly erroneous facts, and (5) adequately explained the chosen
sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. Moreover, 18 U.S.C. § 3553(c)
requires the district court to state its reasons for the sentence in open court. 18
U.S.C. § 3553(c)(1). In complying with § 3553(c), “[t]he sentencing judge should
set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168
L.Ed.2d 203 (2007). However, “[t]he appropriateness of . . . what to say, depends
upon [the] circumstances.” Id.After we determine that the district court’s sentencing decision is
procedurally sound, we then review the substantive reasonableness of the
sentence, again under the abuse-of-discretion standard. Gall, 552 U.S. at 51, 128
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S.Ct. at 597. “[T]here is a range of reasonable sentences from which the district
court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
We consider the final sentence, in its entirety, in light of the § 3553(a) factors.
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006). The district court
is “permitted to attach great weight to one factor over others.” United States v.
Shaw, 560 F.3d 1230, 1237 (11th Cir.) (quotation omitted), cert. denied, 129 S.Ct.
2847 (2009). In arriving at a reasonable sentence, the district court shall impose a
sentence that is “sufficient, but not greater than necessary,” to comply with the
need for the sentence imposed:
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.
18 U.S.C. § 3553(a)(2). Other factors that the sentencing court should consider are
the following: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the kinds of sentences available; (3) the
Sentencing Guidelines range; (4) pertinent policy statements of the Sentencing
Commission; (5) the need to avoid unwanted sentencing disparities among
similarly situated defendants; and (6) the need to provide restitution to victims.
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Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
Here, we hold that the district court did not abuse its discretion in imposing a
total sentence of 300 months’ imprisonment, as that sentence was procedurally and
substantively reasonable.
II.
We review questions of statutory interpretation de novo. United States v.
Krawczak, 331 F.3d 1302, 1305 (11th Cir. 2003). Section 924(c) of Title 18 of the
United States Code provides that a minimum term of five years will be imposed
upon conviction as a consecutive sentence “[e]xcept to the extent that a greater
minimum sentence is otherwise provided by [§ 924(c) itself] or by any other
provision of law.” 18 U.S.C. § 924(c). The Supreme Court recently has interpreted
the “except” language under 18 U.S.C. § 924(c) as mandating a consecutive five-
year sentence upon one’s conviction under that count, unless some other law
covering the conduct proscribed by § 924(c) adds an even greater statutory
mandatory minimum, regardless of whether the defendant also received a higher
mandatory-minimum sentence for other counts unrelated to the § 924(c) conduct.
Abbott v. United States, 562 U.S. ___, ___, 131 S.Ct. 18, 23, 178 L.Ed.2d 348(2010); accord United States v. Segarra, 582 F.3d 1269, 1272-73 (11th Cir. 2009)
(holding that the plain language of 18 U.S.C. § 924(c) authorizes a district court to
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impose a consecutive sentence to any other term of imprisonment imposed under a
different section), cert. denied, (U.S. Nov. 29, 2010) (No. 09-8536). We reject
Musson’s § 924(c) argument that the district court erred in imposing a consecutive
sentence under Count Two because the Supreme Court has conclusively held to the
contrary.
Based on a review of the parties’ briefs and the record, we affirm Musson’s
300-month total sentence.
AFFIRMED.
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