FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 28, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14277

Non-Argument Calendar

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D. C. Docket No. 03-20759-CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILFREDO RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(May 28, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

Wilfredo Rodriguez appeals the 420-month sentence he received following

his convictions for various drug and firearm offenses. After a thorough review, we
affirm.

I. Background

In 2004, Rodriguez was convicted of conspiracy to possess five kilograms or

more of cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (Count 1);

conspiracy to violate the Hobbs Act, in violation of 18 U.S.C. § 1951(a) (Count 2);

conspiracy to use or carry a firearm during and in relation to a drug trafficking

crime or crime of violence, in violation of 18 U.S.C. § 924(o) (Count 3); attempted

possession with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. § 846 and 18 U.S.C. § 2 (Count 4); using or carrying a firearm during

and in relation to a drug trafficking crime or crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(I), (2) (Count 5); and possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g)(1) (Count 6). The court sentenced him to life

imprisonment, and his conviction was affirmed on direct appeal. Rodriguez then

filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court

granted the motion, vacated the sentences, and ordered a new sentencing hearing.

At resentencing, the court determined that the advisory guidelines range was

360 months’ to life imprisonment, with a mandatory 5-year consecutive sentence

on Count 5 under 18 U.S.C. § 924(a). Rodriguez objected to the consecutive

sentence on the ground that the other counts of conviction included a ten-year

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mandatory minimum sentence, which trumped the mandatory sentence under

§ 924(a)(1)(A). Rodriguez also presented mitigating evidence for the court to

consider in determining his sentence.

The district court rejected Rodriguez’s argument as to the consecutive

sentence and sentenced him to 360 months’ imprisonment as to Counts 1 and 4,

240 months’ imprisonment as to Counts 2 and 3, and 120 months’ imprisonment as

to Count 6, all to be served concurrently. The court imposed a consecutive

sentence of 60 months’ imprisonment on Count 5 to run consecutively to the other

sentences imposed, for a total sentence of 420 months’ imprisonment. Rodriguez

now appeals, challenging the 60-month consecutive sentence and the

reasonableness of his sentences.

II. Standards of Review

We review questions of statutory interpretation de novo. United States v.

Krawczak, 331 F.3d 1302, 1305 (11th Cir. 2003). We review a sentence imposed

by a district court for reasonableness, using an abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007).

III. Discussion

A. Consecutive Sentence

Rodriguez argues that § 924(c)(1)(A)’s prefatory clause does not permit the

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court to impose a minimum five-year sentence on the firearm count where there is

a greater mandatory minimum sentence imposed on the other counts. Rodriguez

acknowledges that we have previously considered and rejected this argument, but

he wishes to preserve the argument because of a circuit split on the issue.

Section 924(c)(1)(A) states:

Except to the extent that a greater minimum sentence is

otherwise provided by this subsection or by any other

provision of law, any person who, during and in relation

to any crime of violence or drug trafficking

crime . . . uses or carries a firearm, or who, in furtherance

of any such crime, possesses a firearm, shall, in addition

to the punishment provided for such crime of violence or

drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less

than 5 years . . . .

18 U.S.C. § 924(c)(1)(A) (emphasis added). This mandatory minimum sentence

must run consecutively to any other term of imprisonment imposed. Id.

§ 924(c)(1)(D)(ii).

Rodriguez’s challenge to the consecutive sentence is foreclosed by our

recent decision in United States v. Segarra, 582 F.3d 1269, 1271-73 (11th Cir.

2009) (holding that the plain language of § 924(c)(1)(A) requires courts to impose

consecutive sentences for § 924(c) offenses and underlying drug offenses), petition

for cert. filed (U.S. Jan. 8, 2010) (No. 09-8536). See also United States v. Tate,

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586 F.3d 936, 946-47 (11th Cir. 2009) (relying on Segarra), petition for cert. filed

(U.S. Jan. 28, 2010) (No. 09-8888).

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Based on our decisions in Segarra and Tate, the district court committed no

error by imposing the consecutive five-year mandatory minimum sentence under

§ 924(c)(1)(A)(i).

B. Reasonableness

Unreasonableness may be procedural or substantive. United States v. Hunt,

459 F.3d 1180, 1182 n.3 (11th Cir. 2006). A sentence may be procedurally

unreasonable if the court treated the guidelines as mandatory, failed to consider the

18 U.S.C. § 3553(a) factors, or failed to explain adequately the chosen sentence.

Gall, 552 U.S. at 51,128 S.Ct. at 597. The substantive reasonableness of a

sentence considers the totality of the circumstances. United States v. Livesay, 525

F.3d 1081, 1091 (11th Cir. 2008). In arriving at a substantively reasonable

sentence, the district court must give consideration to the sentencing factors listed

in § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The

factors in 18 U.S.C. § 3553(a) are:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

 We are aware that the Supreme Court has granted certiorari in two cases to address the 1

interpretation of § 924(c)(1)’s prefatory clause. But until the Supreme Court decides those

cases, our interpretation remains the law of this circuit.

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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

educational 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 unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)). The district court is not required to discuss

each § 3553(a) factor. Id. Rather, “[t]he sentencing judge should set forth enough

to satisfy the appellate court that he considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” United

States v. Rita, 551 U.S. 338, 356 (2007). “[T]he weight to be accorded any given

§ 3553(a) factor is a matter committed to the sound discretion of the district court.”

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (citation omitted).

We will remand for resentencing only if we are “left with the definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors by arriving at a sentence that lies outside the range of

reasonable sentences dictated by the facts of the case.” United States v. Pugh, 515

F.3d 1179, 1191 (11th Cir. 2008) (citation and quotation marks omitted).

Rodriguez’s 360-month sentence, imposed on Counts 1 through 4 and 6, is

at the low end of the guideline range and is both procedurally and substantively

reasonable. The district court correctly determined the guideline range, treated the

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guidelines as advisory, and considered the § 3553(a) sentencing factors and the

parties’ arguments. The court noted Rodriguez’s lengthy criminal history and his

tendency towards recidivism. Rodriguez has not shown any procedural or

substantive error. Because we conclude that the sentences imposed were

reasonable, Rodriguez’s sentences are

AFFIRMED.

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