[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-12176

Non-Argument Calendar

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

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

RICHARD LEE WATTS, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(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). 

 1 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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