USA v. Quinn Domingue

Filing

UNPUBLISHED OPINION FILED. [09-31088 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/13/2010 for Appellant Quinn J. Domingue [09-31088]

USA v. Quinn Domingue e: 09-31088 Cas

Document: 00511300494 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-31088 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. Q U I N N J. DOMINGUE, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 6:08-CR-226-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* Q u in n J. Domingue pleaded guilty to possession of an unregistered s h o r t -b a r r e le d shotgun, in violation of 26 U.S.C. § 5861(d). The district court s e n te n c e d Domingue to 36 months in prison and ordered the sentence to run c o n s e c u t iv e ly to Domingue's undischarged state probation revocation sentence o f five years. Domingue appeals, arguing that the district court was required to im p o s e a concurrent sentence pursuant to U.S. Sentencing Guideline (U.S.S.G.) § 5G1.3(b). Domingue also argues that his 36-month sentence is substantively
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-31088 Document: 00511300494 Page: 2 Date Filed: 11/22/2010 No. 09-31088 u n r e a s o n a b le in light of 18 U.S.C. § 3553(a). For the reasons that follow, we a ffir m . W e review sentences, whether inside or outside the Guidelines, for p r o c e d u r a l error and substantive reasonableness in light of the Sentencing G u id e lin e s and the factors set out in § 3553(a). Gall v. United States, 552 U.S. 3 8 , 46, 51 (2007); see United States v. Candia, 454 F.3d 468, 472 (5th Cir. 2006) (a p p ly in g the United States v. Booker, 543 U.S. 220 (2005), standard of review t o analyze the application of § 5G1.3(c)). We review the district court's

a p p lic a t io n of the Guidelines de novo, and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Multiple sentences of imprisonment are addressed in 18 U.S.C. § 3584, w h ic h generally provides that "[m]ultiple terms of imprisonment imposed at d iffe r e n t times run consecutively unless the court orders that the terms are to r u n concurrently." 18 U.S.C. § 3584(a). Section 5G1.3 of the Guidelines

im p le m e n ts § 3584. See 28 U.S.C. § 994(a)(1)(D). Section 5G1.3(b) provides, in p e r t in e n t part, as follows: I f . . . a term of imprisonment resulted from another offense that is r e l e v a n t conduct to the instant offense of conviction . . . and that w a s the basis for an increase in the offense level for the instant o ffe n s e . . . the sentence for the instant offense shall be . . . (1 ) a d ju s t [e d ] . . . for any period of imprisonment already s e r v e d on the undischarged term of imprisonment . . . ; and (2 ) . . . imposed to run concurrently to the remainder of the u n d is c h a r g e d term of imprisonment. U.S.S.G. § 5G1.3(b). Subsection (b) does not apply "in cases in which the prior o ffe n s e increased the . . . offense level for the instant offense but was not r e le v a n t conduct to the instant offense." U.S.S.G. § 5G1.3 cmt. n.2(B). The term " r e le v a n t conduct" has the meaning ascribed to it in § 1B1.3(a)(1), (2), or (3) of t h e Guidelines. U.S.S.G. § 5G1.3(b).

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Case: 09-31088 Document: 00511300494 Page: 3 Date Filed: 11/22/2010 No. 09-31088 S u b s e c t i o n (c) of § 5G1.3 indicates that in other cases involving an u n d is c h a r g e d term of imprisonment, "the sentence for the instant offense may b e imposed to run concurrently, partially concurrently, or consecutively . . . to a c h ie v e a reasonable punishment for the instant offense" as determined by the d is t r ic t court and its consideration of a number of factors. U.S.S.G. § 5G1.3(c) & cmt. n.3(A). I n the instant case, state law enforcement officers arrested Domingue and c h a r g e d him with possession with intent to distribute hydrocodone. In

c o n n e c t io n with the arrest, the officers seized a short-barreled shotgun which h a d never been registered as required by federal law. Domingue pleaded guilty t o the state drug offense and received a sentence of five years, three years of w h ic h were suspended pending the successful completion of supervised p r o b a t io n . When state officers later arrested Domingue and charged him with a d d it io n a l drug offenses, Domingue's probation was revoked and he was s e n te n c e d to five years in state prison (probation revocation sentence). Domingue was serving his probation revocation sentence when he was sen t e n c e d in connection with the instant offense. Because Domingue's probation r e v o c a t io n sentence "resulted" not from his original state drug offense, which w a s "relevant conduct to the instant offense . . . and . . . was the basis for an in c r e a s e in the offense level for the instant offense" but rather from his probation v io la t io n , which was based on separate, unrelated criminal offenses, § 5G1.3(c) c o n t r o lle d the outcome in the instant case. See United States v. Reyes-Lugo, 238 F .3 d 305, 308-10 (5th Cir. 2001). Thus, the district court did not clearly err in im p o s in g a consecutive federal sentence. See id. Furthermore, because the im p o s it io n of consecutive sentences was in keeping with § 5G1.3(c), the sentence im p o s e d on Domingue is a within-guidelines sentence entitled to the p r e s u m p t io n of reasonableness in all respects. See Candia, 454 F.3d at 471, 473, 4 7 8 -4 7 9 . Thus, Domingue's arguments regarding the district court's imposition

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Case: 09-31088 Document: 00511300494 Page: 4 Date Filed: 11/22/2010 No. 09-31088 o f a consecutive federal sentence are unavailing. See id. at 478-79; Reyes-Lugo, 2 3 8 F.3d at 308-10. D o m in g u e 's arguments regarding the substantive reasonableness of his s e n te n c e are also unavailing. When determining a defendant's sentence, the d is t r ic t court is required to make an individualized assessment based on the fa c t s presented. Gall, 552 U.S. at 50. In the instant case, the district court c o n d u c t e d the individualized assessment required. It expressly adopted the P S R 's findings of fact and calculations and considered the parties' arguments r e g a r d in g the appropriate sentence. See id. at 49-50. It also reviewed the § 3553(a) factors, explaining in detail how its chosen sentence of 36 months s a t is fie d those factors. See id. The record reflects that the district court

" t h o r o u g h ly and adequately articulated several § 3553(a) factors" that justified t h e sentence it imposed. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5 t h Cir. 2008). Domingue's sentence remains substantively reasonable even if w e were to assume arguendo that it represented an upward departure or v a r ia n c e by virtue of its consecutive nature. See United States v. Brantley, 537 F .3 d 347, 349 (5th Cir. 2008). Domingue seeks to have this court re-weigh the § 3553(a) factors. However, the fact that we "might reasonably have concluded that a different s e n te n c e was appropriate is insufficient to justify reversal of the district court." See Gall, 552 U.S. at 51. A defendant's disagreement with the propriety of the s e n te n c e imposed does not suffice to rebut the presumption of reasonableness t h a t attaches to a within-guidelines sentence. See, e.g., United States v. R o d r ig u e z , 523 F.3d 519, 525-26 (5th Cir. 2008) (concluding that various a r g u m e n t s for a non-guidelines sentence presented no reason to disturb the p r e s u m p t io n of reasonableness). Furthermore, Domingue's argument that the d is t r ic t court violated federal law when it considered his need for drug treatment in fashioning a sentence is simply without merit. Section 3553(a)(2)(D) expressly r e q u ir e s the district court to consider this factor, and we have affirmed many 4

Case: 09-31088 Document: 00511300494 Page: 5 Date Filed: 11/22/2010 No. 09-31088 s e n te n c e s , including above-guidelines sentences, based, in part, on a defendant's n e e d for drug treatment. See, e.g., United States v. Peltier, 505 F.3d 389, 390, 3 9 4 n.16 (5th Cir. 2007); United States v. Pena, 125 F.3d 285, 287-88 (5th Cir. 1 9 9 7 ). Thus, Domingue has not shown that his sentence was substantively u n r e a s o n a b le , see Gall, 552 U.S. at 51, nor has he rebutted the presumption of r e a s o n a b le n e s s that attaches to his within-guidelines sentence. See Rodriguez, 5 2 3 F.3d at 525-26. AFFIRMED.

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