NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0556n.06 No. 10-5954 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. F RANCISCO MORA LES ANG ELE S, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED S T ATES DISTRICT COURT F OR THE EASTE RN DISTRICT OF TENNES SEE

Before: CLAY and GIBBONS, Circuit Judges, and KORM AN, Distr ict Judge. * JULIA SMITH GIBBONS, Circuit Judge. In J une 2007, defe ndant-a ppellant Fr ancisc o Morales Ang eles abducte d J ose Gar cia and h el d Garcia captive in a motel room for nine day s in

o rd er t o ex t ra ct money from him and his associate s. A jury found Morales Ang eles g uilty o f kidnapping , hostag e-taking, car jacking , and using a fi re ar m i n t he commission of a crime of violence. T he dis trict court subsequently sentenc ed Morales Ang eles to a within-Guidelines term of life imprisonment. On appea l, Morales Ang eles argues that the district court err ed when it denied his motion for acquittal or a new trial, which wa s b as ed o n his claims that the kidnapping and hostag e-taking convictions wer e mulip l i ci t o us and that the evidenc e at trial supported only one conviction under 18 U.S.C. § 924(c)

. Morales Ang eles also asser ts that the life sentenc e he rec eived

The Honora

ble Edwar d R. Korman, United States District J udg e for the Easter n District of * New Y ork, sitting by

designation. 1United States v. Morale s Angeles No. 10-5954 is substantively u n re asonable and violates the Eig hth Amendment’s prohibition ag ainst crue l and unusual punishment. For the rea sons that fol low, we aff irm the sentenc e imposed by the district court. I

. T his case arises out Morales Ang eles’s abduction of J ose Garcia. On J une 13, 2007, afte r patrol office rs responding to a 9-1-1 call from the West/P ark Vi s t a I nn in Knoxvi lle, Tenne ssee reque sted assistance , Offic er Heather Reyda of t h e m aj o r cr imes division of the Knox County S heriff ’s Depa rtment arr ived to discover a frig htened, disheveled man—later identified as J o s e Gar cia—who repor

ted that he had been the victim of a car jacking , kidnapped, and held captive for nine day s. He had esca

ped from a room on the back side of the motel and had ran to the motel office to call 9-1-1. Gar cia, who was convince d that his c aptors wer e coming back to kill him, neede d to be rea ssured repe atedly that he was no longe r in dang er. Gar cia repor ted that during the time he was held captive, he had been tortured and forc ed to write chec ks to be cashe d. He identified his captor s

as two men g oing by the n am es o f “Juan Gonzalez”—later identified as an alias of defe ndant Morales Ang eles—a

nd “Paco”—later ide ntified as an a lias of def endant Jose Sanchez. Gar cia, who was a l egal resident alien, operated a construction business in Knoxvi lle, Tenne ssee. He fi rs t m et the defendants, Morales Ang eles and Sanchez, at his home when he was hosting a fish fry

. They claimed to ha ve rec ently come from Houston and to be looking for work. Gar cia met with Mor ales Ang eles and Sanchez a fe w day s later, driving them to dif fer ent job sites to g ive them an idea of the ty pe of work they might potentially be hired to perf orm. On the day that he was abducte d, Gar cia met with Mora l es An g eles and Sanchez ag ain to show them a projec t

2United States v. Morale s Angeles No. 10-5954 outside of Knoxvi lle in L enoir City

. Following the tour of the proper ty and lunch, Sanchez rema ined with Gar cia while Morales Ang eles left to take car e of other business. They ag ree d to meet up later to discuss the potential employ ment arr ang ement. Morales Ang eles rejoined the g roup later that day and g ot back in to Gar cia’ s vehicle. Morales Ang eles eventua lly asked Gar cia to stop near a Har ley -Davidson deale rship so that he could g et out and g o to use the bathroom. But when Gar cia stopped the car , Sanchez, who was sitti ng in the back seat, took out a knife and held it to Gar cia’ s throat while Morales Ang eles took out a pistol and used it to repe atedly strike Gar cia in the fac e and head. Morales Ang eles also threa tened to kill Gar cia and told him three or four times that they had come to kill him. Moral es An gel es an d Sanchez then bound Gar cia’ s hands, drove the vehicle into a wooded are a, and forc ed Gar cia to write

a ch ec k m ad e out to “Juan Gonzalez” in the amount of $400. Morales Ang eles left in Gar cia ’s vehicle to c ash the c heck, le avingGar cia and Sanchez in the wooded are a. He r eturne d about two hours later

in his own vehicle, a

L incoln Navig ator. Gar cia was then p u t i n t o t h e Navigator , a blanket was place d over his head, and he was driven around in an attempt to disorient him befor e he was taken to the motel r oom f rom which he eventua lly esca

ped. There , Gar cia was put betwee n the two beds and bound with his shoelac es and torn strips of bed shee ts. Morales Ang eles a nd Sanchez kept a two- by -four piece of lumber in the

room with which they threatened to bre ak Ga rc i a’s leg s. Sanchez also heate d up the blade of his knife and used it to burn Gar cia’ s arm. Morales Ang eles appea red to be in char g e as he would g ive order s to Sanchez and come and g o as he ple ased, le avingSanchez in the room to guard G arc ia.

3United States v. Morale s Angeles No. 10-5954 Morales Ang eles told Gar cia that he was part of the Z etas, which was an org anization with

a reputation for drug traff

icking and kidnapping with political ties in Mexi co. Gar cia was also forc ed to speak with a person over the telephone ref err ed to as “El Comandante,” who seeme d t o be M o ra l es Ang eles’s superior. El Comandante falsely claimed that Gar cia owed hi m $200,000 and threatened to bre ak Ga

rcia ’s leg s or kill Garc ia if Ga rcia did not pay

him. Whil e in the motel room, Morales Ang eles forc ed Gar cia t o s ign additional chec ks from Gar cia’ s business acc ounts, ultimately emptying them. Gar cia was also forc ed to call at least three other fr iends and business assoc iates in order to ge t money

from them as well. Additionally , afte r listening in on a conver sation betwee n Gar cia and his brother, Morales Ang eles tried to forc e Gar cia to have his brother sell a piece of family -owne d proper ty in Mexi co fo r $ 1 0 0 , 0 0 0 and deliver the proce eds to his as s o ci at es i n M ex ico. Fe aring for the safe ty of his brother and other family in Mexi co, Ga

rcia ref used to cooper ate with this demand a nd, instead, dec ided to attempt to esca pe. After nine day s in captivity , Gar cia mana g ed to esc ape one night whe n Sanchez was a sleep. After Gar cia escape d, Morales Ang eles and Sanchez t rave led t o Houston wher e they wer e later arr ested. On October 16, 2007, a fede ral g rand jury char g ed Morales Ang eles and Sanchez in

a nine-c ount superse ding indictment relating t o t he car jacking and abduction of Gar cia. Morales Ang eles was char g ed with: (1) conspiring to kidnap Gar cia and hold h im for ransom while using instrumentalities of inte rs t at e commerc e in violation of 18 U.S.C. § 1201(c) (Count One) ; (2) kidnapping Gar cia and holding him for ransom while using instrumentalities of interstate commerc e in violation of 18 U.S.C. § 1201(a) (1) and (2) (Count Two); (3) using a firea rm during and in relation to the crimes of violence char g ed in Counts One and Two in violation of 18 U.S.C. § 924(c) (Count

4United States v. Morale s Angeles No. 10-5954 Three ); (4) taking Gar cia’ s vehicle by forc e, violence, and intimi dation ( i.e. , car jacking ) in violation of 18 U.S.C. § 2119 (Count Four); (5) using a firea rm during and in relation to the crime of violence char g ed in Count Four in violation of 18 U.S.C. § 924(c) (Count Five) ; (6) detaining and threa tening
t o kill Gar cia, a non-citizen, in order to compel a third person to pay money for his rele ase ( i.e. , hostag e-taking) i n v i o l at ion of 18 U.S.C. §1203(a) and (b)( 2) (Count Six ); (7) conspiring to take Gar cia hostag e in violation of 18 U.S.C. § 1203(a) and (b)( 2) (Count Seven); (8) usin g a fi rearm during and in relation to the crimes of violence charg ed in Counts Six and Seven in violation of 18 U.S.C. § 924(c) (Count Eig ht); and (9) illega lly re- enter ing the United States in violation of 8 U.S.C. § 1326(a) (Count Nine). On the morning of the first day of the trial, Sanchez pled g uilty to most of the char g es ag ainst him and agree d to cooper ate with the g overnme nt. At the close of the g overnme nt’s case , Morales Ang eles moved f

or acquittal pursua

nt to Fede ral Rule of Criminal Proce dure 29 on Counts Thre e, Five, and Eig ht, a

rguing that beca

use a g un was only used at one point dur ing the crime, there was only o n e p o s s i b l e violation of § 924(c) , and on Counts Six and Seven, arguing that the hostag eta k in g char g es and the kidnapping char g es wer e multipl icitous. The district court denied the motion. The jury subsequently convicted Morales Ang eles on all counts in the superse ding indictment except for Count Eig ht. Newly appointed counsel for Morales Ang eles then filed an amende d motion for judgme nt of acquittal, or, alternatively , a new trial pursuant to Fe dera l Rules of Criminal Procedur e 29 and 33, repe ctively , asser

ting that the district court err ed by failing to suppress statements made by Morales

5United States v. Morale s Angeles No. 10-5954 Ang eles and by denying the ear lier Rule 29 motion for acqu i t tal. The district court denied this motion as well. A p rese ntence investigation repor t (“PSR”) was prepa

red prior to sentenc ing. I t indi ca t ed a tot al offense level of 43 and z ero criminal history points, placing Morales Ang eles in a criminal history cate g ory of I

. This resulted in an advisory Guidelines rang e of life imprisonment, along with statutorily mandated consec utive sentenc es of 84 months and 300 months for the firea rms offe nses. At the sentenc ing hear ing, Morales Ang eles did not object to the calc ulation of his advisory Guidelines rang e or other aspec ts of the PSR but instead argued for a downwar d varia nce based on

a number of 18 U.S.C. § 3553(a) sentenc i n g considerations. The g overnme nt argued that a life sentenc e was ap p ro p ri ate given Morales Ange les’s hi story and conduct in this case and presented two witnesses in support of its position, S anche z and FB IAg ent David B ukowski. Sanchez t estified that he worked w ith Morales Ange les to pay off a debt t hat he owed to a g roup called the Z etas for their assistance in transporting him to the United States. Sanchez ag ree d to th i s ar rang ement because he believed “Ze tas kill people and torture people t hat don’t pay them their money .” Sanchez stated that, in addition to selling drug s and driving for Morales Ang eles, the pair carr ied out other abductions simil ar to the kidnappingof Ga rcia . He described an i ncident in Tulsa, Oklahoma, wher e they ab du ct ed the owner (and an employ ee) of a car deale rship, who alleg edly owed Morales Ang eles’s boss $60,000. Sanchez also descr ibed the violent abductions of two individuals in Houston, Texas, who had failed to pay the fee imposed by the Z etas for
tr a n s p o r ting people over the Mexi co-United States border , that he and Morales An g e le s o r c h e s tr a te d

.

6United States v. Morale s Angeles No. 10-5954 FB I Ag ent Buk owski testified that the victim of the Tulsa abduction, J org e Figueroa , had been interviewe d by the FB I and that Figueroa had identified Morales Ang eles and Sanchez as his captor s. Morales Ang eles argued throug h counsel that the re co mmended Guidelines rang e of life imprisonment overstated the se riousness of his crimes. Def ense counsel poi nted out that the base offe nse level fo r s econd- deg ree murder was lower than the total base offe nse level calc ulated for Morales Ang eles for the crimes char g ed in this case . He also argued that beca use Morales Ang eles would likely

be ver y old at the end of any sentenc e imposed and is to be deporte d afte r serving his sentenc e, the risk that he would re -ente r the United States a nd commit sim ilar crimes in the future

was ve ry low, makinga life se ntence unnece ssary . After hear ing from t h e p ar t i es, the district court made its sentenc ing deter mination. Addre ssing the 18 U.S.C. § 3553(a) sentenc ing fac tors, the district court n o t ed the sever e victim impact of Morales Ang eles’s offe nse, the history and char acte ristics of Morales Ang eles, the serious nature of t he offense, the need to aff ord adequate specific and g eneral d et er rence, and the need to protec t the public. The district court found Morales Ang eles’s compar ison of his total offe nse level to the sec o n d -d eg ree murder base offe nse level unhelpful and irrele vant when divorce d from the circ umstances of a particula r case . I t also found that Morales Ang eles’s arg ument that he would be very old and then depor

ted by the time he lef

t prison, if he we re ever to do so, to be insufficient to

war rant a varia

nce from the Guidelines rang e. Finally , the district court reje cted Morales Ang eles’s argument that a sentenc e of life imprisonment, coupled with t h e t wo m andatory minimum

consec utive sentenc es, would c o n s ti tu te c r u e l a n d u n u s u a l p u n is h me nt u n der the Eig hth Amendment.

7United States v. Morale s Angeles No. 10-5954 The district court sentenc ed Morales Ang eles to a term of life imprisonment for Counts One, Two, Six , and Seven, to run concur rently with a term of 180 months for Count Four and 24 months for Count Nine, followed by consec utive terms of 84 months’ imprisonment on Count Three and 300 months’ imprisonment on C ount Five. I I

. On appe al, Morale s Ang eles first argues t hat t he dis trict court commit ted l eg al error when it de nied his motion for judgme nt of acquittal or a ne w trial pursua nt to Fede ral Rules of Criminal Procedur e 29 and 33, in which he asser ted that the kidnapping and hostag e-taking cha rge s we re mulitpl icitous and that the evidenc e prese nted at trial supported only one conviction under 18 U.S.C. § 924(c)

. Gene rally , this court revie ws the denial of a Rule 29 motion for acquittal de novo . United States v. Campbell , 549 F.3d 364, 374 (6th Cir. 2008). When conducting this revie w, we “examine the evidence in the l ight most fa v orable to the prosecution to deter mine whether any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” Id

. Denial of a Rule 33 motion for a new trial is revie wed for abuse of discretion. United States v. Munoz , 605 F.3d 359, 366 (6th Cir. 2010). Abuse of discretion occur s when a district court “re lies on clea rly

err oneous finding s of fac t, improperly ap p l i es the law, or uses an err oneous leg al standard.” Id. (quoting United States v. W ashingt o n , 584 F.3d 693, 695 (6th Cir. 2009)). Finally , the denial of Morales Ang eles’s motion for acquittal or a new trial raised questions of law— i.e. , whether his char g es wer e m u l t i p licitous and whether the district court proper ly applied 18 U.S.C. § 924(c) —which this court re views de novo

. See U nited States v. Swafford , 512 F.3d 833, 844 (6th

8United States v. Morale s Angeles No. 10-5954 Cir. 2008) (multipli citous indictment); United States v. Langan , 263 F.3d 613, 626–27 (6th Cir. 2001) (a pplication of 18 U.S.C. § 924(c))

. A. Multipl icity , which is the char g i n g o f a single offe nse in more than one count in an i n d i ct m en t , “may result in a defe ndant being punished twice for the same crime or may unfairly sug g est that more than one crime has been committed.” Swafford , 512 F.3d at 844 (interna l citation omitted). “To deter

mine if multipl icity exis ts, a court must first look to ‘whe ther Congr ess intended to punish eac h statutory violation separ ately .’” Id

. (quoting Pandelli v. United States , 635 F.2d 533, 536 (6th Cir. 1980)). When congressional intent is unclea r, a court then applies the g ener al test for compliance with the Double J eopar dy Clause, which asks “whether eac h provision require s proof of a fac t which the other does not.” Blockburge r v. United States , 284 U.S. 299, 304 (1932). “Using the same evidenc e to prove violations of two statutes does not violate Blockburge r .” Swafford , 512 F.3d at 844. When applying the Blockburge r test, a revie wing court must “look to the leg al theory of the case or the elements of the specific criminal ca u s e o f action for which the defe ndant was convicted w ithout ex amining the fac ts in detail.” Pandelli , 635 F.2d at 538. The fe dera l kidnapping statute, 18 U.S.C. § 1201, provides: (a) Whoev er unlawfully seizes, confine s, inveig les, decoy s, kidnaps, abducts, or car ries awa y and holds f

or ransom or rew ard or otherwise any person, except in the case of a minor by

the par ent there of, whe n-- (1) the person is willfully transporte d in interstate or fore ign comm er ce, reg ardle ss of whether the person was alive when transporte d acr oss a State boundary , or the offe nder trave ls in interstate or fore ign commerc e or uses the mail or any means, fac ility , o r i n strumentality of interstate or fore ign commerc e in committing or in further ance of the commission of the offe nse

. . . 9United States v. Morale s Angeles No. 10-5954 commits the crime of kidnapping

. 18 U.S.C. § 1201(a)

. And the fede ral hostag e-taking statute, 18 U.S.C. § 1203, provides: (a) Ex cept as provided in subse ction (b) of this sec tion, whoe ver, whether inside or outside the United States, seizes or detains and t h reatens to kill, to injure, or to continue to detain another person in order to compel a third person or a g overnme ntal org anization to do or abstain from doing any act as an expli cit or implicit condition for the rele ase of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of y ear s or for life and, if the death of any person r esults, shall be punished by death or life imprisonment.

. . . (b )( 2) I t is not an offe nse under this section if the conduct require d for the offe ns e occur red inside the United States, eac h alleg ed offe nder and eac h person seized or detained are nationals of the United States, and eac h alleg ed offe nder is found in the United States, unl es s the g overnme ntal org anization soug ht to be compelled is the Gover nment of the United States. 18 U.S.C. § 1 2 0 3 (a ) an d (b)(2). Whil e it is rea sonably clea r that Congr ess adopted the Hostag e Taking Act “to extend jurisdiction over extraterritorial crimes and satisfy the country ’s obliga tions

as a party to various international conventions,” United States v. Y unis , 681 F. Supp. 896, 904 (D.D.C. 1988); see also United States v. Ferreira , 275 F.3d 1020, 1027 (11th Cir. 2001) (“Congress passed the Ho s t age Taking Act to implement the International Convention Ag ainst the Taking of Hostag es.”) , it is not clea r whether Congr ess i n t en d ed to punish violations of the hostag e-taking statute separ ately from violations of fede ral kidnapping statute. Acc ording ly , we turn to the g ener al test to determine whe ther c onviction under both statutes violates the Double J eopar dy Clause. Although the statutes are very simil ar—using simil ar languag e and punishing simil ar conduct—they are not identical. Eac h sta t u t e require s proof of a fact t hat t he other does not

. See United States v. Carrion-Cal iz , 944 F.2d 220, 224 (5th Cir. 1991) (finding that the two statutes are not redun d an t beca

use they car

ry differ ent jurisdictional require ments). To prove the kidnapping

10United States v. Morale s Angeles No. 10-5954 char g e in this case , the g overnme nt was re q u i re d t o es tablish that Morales Ang eles trave led in or used an instrumentality of interstate commer ce in the commission of the offe nse, which was not require d in proving the hostag e-taking char g e. To prove the hostag e-ta king char g e, the g overnme nt

was require d to establish that either Morales Ang eles or Gar cia was not a United States citizen, since the conduct occur

red inside the United States, and that a third party was compelled to do or abstain from doing an act as a condition of Gar cia’ s rele ase. Th es e fa ct s we re not require d to prove the kidnapping char g e. Be cause the kidnapping char g es and the hostag e-taking char g es eac h require d proof of at least one element not require d by the other, they wer e not multipl icitous, and conviction under both statu t es d i d not violate the Double J eopar dy Clause. The district court did not err in 1 denying Morales Ang eles’s m o t i o n fo r ac quittal or a new trial made on the g rounds that the kidnappingcounts and hostag e-ta king c ounts were multipl icitous.

The Fifth Circuit has held that two sta tu t es const itute the same offe nse under the Double 1 J eopar dy Clause wher e the sole differ ence betwee n the two statutes is a jurisdictional element. See United States v. Gibson , 820 F.2d 692, 698 (5th Cir. 1987). At least one other circ uit, howeve r, has expressly reje cted this approa ch. See United States v. Hair s t o n , 6 4 F.3d 491, 496 (9th Cir. 1995) (re jecting Gibson beca

use it “ig nores the fac t that Congr ess may have strong int er ests in treating crimes occur

ring within the jurisdicti o n o f the United States differ ently from those occur ring elsewhe re” and g iving the jurisdictional element of a statute substantive weig ht in the Blockburge r analy sis); see also United St ates v. Agofsky , 458 F.3d 369, 372 (5th Cir. 2006) (ex pressing “some conce rn with the rea soning of Gibson ” but rec og nizi ng that it must follow this binding Fifth Circuit prec edent). Whil e this court has not clea rly adopted either position, we rea d Pandelli to treat jurisdictional e lements as deser ving weig ht in the Blockburge r analy sis. See Pandelli , 635 F.2d at 539 (stating that when perf orming a do u b l e jeopar dy analy sis, a court must eliminate the inapplicable alt er n ati ve jurisdictional provisions, which implies that the applicable jurisdictional provisions should factor into the ana ly sis). 11United States v. Morale s Angeles No. 10-5954 B. Morales Ang eles a lso argues that he w as improper ly convicted of multipl e counts of using

a firea rm in connec tion with a crime of violence under 18 U.S.C. § 924(c) and that the district court should have g rante d his motion for acquittal or a new trial for this rea son. Morales Ang eles asser ts that the testimony

at trial established that he only used or display ed a g un on one occa sion—when he initially abducte d Gar cia—a nd there fore only one, not both, of his c onvictions unde r 18 U.S.C. § 924(c) on Counts Three a nd Five c an stand. The district court prope rly reje cted this argument. I t is well-settled that “a court may not impose more than one sentenc e upon a defe ndant for violations of section 924(c) which re late to but one predic ate offe nse.” United States v. Sims , 975 F.2d 1225, 1233 (6th Cir. 1992)

. Howeve r, “[w]e have upheld multipl e convictions and sentenc es under 18 U.S.C. § 924(c) (1) so long as such convictions are b as ed on separ ate predic ate acts.” United States v. Graham , 275 F.3d 490, 519–20 (6th Cir. 2001); see also United States v. Burnette , 170 F.3d 5 6 7 , 5 7 2 (6th Cir. 1999) (“It is now firmly established that the imposit ion of separ ate

consec utive sentenc es for multipl e § 924(c) violations oc curr ing during the same criminal episode [i s] lawful.” ). The question we must answe r then is whether Count Three—use of a firea rm in relation to the kidnapping of Gar cia—r elies on a separ ate predic ate act from Count F ive—use of a firea rm in relation to the ca

rjac king. I t i s clea r that when predic ate offe nses consist of non-identica l conduct and are n o t committed simult aneously , these offe nses are separ ate predic ate acts that can support multipl e convictions under 18 U.S.C. § 924(c)

. Compare Graham , 275 F.3d at 520–21 (finding that a drug traff icking offe nse and a conspirac y to commit crimes ag ainst the United States wer e s epar ate

12United States v. Morale s Angeles No. 10-5954 predic ate acts since they “we re not committed simult aneously , nor did they co n s i st of identical conduct” ) and Burnette , 170 F.3d at 572 (upholding two convictions under § 924(c) wh er e “the kidnapping occur

red signific antly befor e, and independe nt of, the actua l bank robber y ”) with United States v. Johnson , 25 F.3d 1335, 1338 (6th Cir. 1994) ( en banc ) (“[P] o s s es sion of one or more fi re ar m s in conjunction with predic ate offe nses involving simult aneous possession of differ ent controlled substances should constitute only one offe nse under § 924(c) (1).” ). Fur th er , wh ile a temporal g ap betwee n predic ate offe nses may bolster a showing th at p redic ate acts are separ ate, predic ate offe nses ne e d not occur at differ ent times in order to support multipl e § 924(c) convictions. See United States v. Na b o r s , 901 F.2d 1351, 1353, 1358–59 (6th Cir. 1990) (finding that the predic ate offe nses of drug traff icking and a crime of violence—e ither attempted murder of a fede ral agent or assaulting a fede ral ag ent with a deadly wea pon—supported two separ ate § 9 2 4 (c ) convictions, even though the drug traff icking occur

red simult aneously , at least in part, with the crime of violence)

. Rather, the fac t that eac h offe nse require s proof of fa ct s n o t re q u i red by the other offe nse appe ars to be suf

ficient to show that the pr edicate ac ts are se parate. Id . at 1358. In this case , the predic ate offe nses of kidnapping , which re q u ires proof of the unlawful abduction and holding of a person, and car jack i n g, which require s proof of the taking of a motor vehicle f rom a pe rson by

forc e and violence or intimi dation, clea rly involve differ ent conduc t and thus are separ ate predic ate acts. See 18 U.S.C. §§ 1201 & 2119. Acc ording ly , beca use Counts Three and Five are b ased on separ ate underly ing predic ate acts, Morales Ang eles’s conviction on both counts does not violate the Double J eopar dy Clause. The dist ri ct co u rt did not err in denying Morales Ang eles’s motion for judg ment of ac quittal or a newtrial made on the se g rounds.

13United States v. Morale s Angeles No. 10-5954 I I I

. Morales Ang eles also challeng es the substantive rea sonablene ss of his sentenc e, arguing that

a term of life imprisonment was not war rante d under the circ umstances of his case . “Post- Booke r ,
we revie w a district court’s sentenc ing deter mination under a defe rent i al abuse- of-discr etion standard, for rea sonablene ss.” United States v. Presley , 547 F.3d 625, 629 (6th Cir. 2008) (interna l quotation marks omitted). Review of the substantive rea sonablene ss of a sentenc e takes into acc ount the totality of the circ umstances. Gall v. United States , 552 U.S. 38, 51 (2007). A sentenc e may be substantively unrea sonable, for instance, if the district court selec ts it arb i trarily , bases it on impermissible fac tors, fails to consider pertinent Section 3553(a) fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor. United States v. W ebb , 403 F.3d 373, 385 (6th Cir. 2005). When a sentenc e falls within the Guidelines rang e, a presumption of rea sonablene ss applies. United States v. Vonner , 516 F.3d 382, 389 (6th Cir. 2008) ( en banc ). “The fac t t hat the appellate court might rea sonably have conclude d that a differ ent sentenc e was appropr iate is insufficient to justify

reve rsal of the district court.” Gall , 552 U.S. at 51. Morales Ang eles claims that his sentenc e is substantively unrea sonable beca use his conduct

was not the “ty

pe of heinous and atroc ious behavior that would merit life imprisonment.” He argues,

as he did at his sentenc ing hear ing, that if he had he killed Gar cia instead of abducting him, he would p o tentially be elig ible for sentenc ing for second- deg ree murder with a base offe nse level of 38 instead of the t otal offe nse l evel of 43 that was applicable here. The dist rict court considere d and proper ly reje cted this arg

ument, stating that a compar ison to this hy pothetical scena

rio was unhelpful beca use the second- deg ree murder offe nse lev el of 38 would just be a base offe nse level and the

14United States v. Morale s Angeles No. 10-5954

o t h er circ umstances of the crime would deter mine what enhance ments, if any , would be appl i ed

. The district c ourt also pointed out that this scena rio presumes that Morales Ang eles would qualify for second- deg ree murder when the actua l circ umstances of this case —Morales Ang eles subjecting Gar cia to a multipl e-da

y period of phy sical and mental abuse—make it less plausible that Morales Ang eles would have met the “heat of passion” limit ation for second-d egr ee m urder

. The district court did not abuse its discre tion by choosingnot to credit this argument. Neither did district court abuse its discretion when it reje cted Morales Ang eles’s argument, also raised ag ain on appea l, that a lesser sentenc e was war rante d beca

use he would be an extremely old man by the time he would exit prison and would then be deporte d to Mexi co if he wer e sentenc ed to less than life imprisonment. The district court chose not to g ive this argument signific ant weig ht primarily beca

use Morales Ang eles had a history of enter ing the United States illega lly , and the court found it was not unrea sonable to assume that he would seek to re- enter the country ag ain and perha ps undertake similar cr imes. Instead, afte r car efully consideri n g al l § 3553(a) sentenc ing fac tors, the district court conclude d that a within-Guidelines sentenc e of life imprisonment was appropr iate in this case . The court noted that Gar cia endure d mental and phy sical torture over a nine-da y period and that this was likely not the first time Morales Ang eles had eng ag ed in this ty pe of conduct. The seriousness of the crime, the need for adequate deter renc e, the need to protec t the public, and the char acte ristics of the defe ndant all point to the rea sonablene ss of the sentenc e imposed. Moreove r, because the sentenc e is within the recommended rang e under the Guidelines, it is entitled to a presumption of rea sonablene ss. See Vonner , 516 F.3d at 389. Morales Ang eles has

15United States v. Morale s Angeles No. 10-5954 failed to rebut this presumption. See United States v. Robinson , 503 F.3d 522, 528 (6th Cir. 2007) (finding that it is incumbent upon the defe ndant to establish that his within-Guidelines sentenc e was

unrea sonable); United States v. Trejo-Martinez , 481 F.3d 409, 413 (6th Cir. 2007) (“The mere fac t that [t he defe ndant] desired a more lenient sent en ce , without more, is insufficient to justify our disturbing the rea soned judgme nt of the district court.” ). We find that his sentenc e was substantively

rea sonable. I V. Finally , Morales Ang eles argues that his life sentenc e violates the Eig hth Amendment’s proh i bition ag ainst crue l and unusual punishment. A constitutional challeng e to a sentenc e is revie wed de novo . United States v. Jones , 569 F.3d 569, 573 (6th Cir. 2009). When a defe ndant challeng es a sentenc e on Eig hth Amendment g rounds, this Court applies a “nar row proportionality principle” that prohibits “only extreme sentenc es that are g rossly disproportionate to the crime” and “does not require s trict proportionality betwee n crime and sentenc e.” Harmelin v. Michigan , 501 U.S. 957, 1001 (1991) (Ke nnedy , J ., concur ring ) (interna l quotation marks omitted); Jones , 569 F.3d at 573. Giv en t he seriousness of t he crime, Morales Ang eles’s history and chara cter istics, and the other circumstanc es o f this case , we find that a li fe sentence is not g rossly disproportionate to the crime. His sentenc e is n ot “extreme,” as the Sentencing Commi ssion has conclude d that a life sentenc e is rea sonable for the crimes committe d in this case , and other courts have upheld life sentenc es for kidnapping ag ainst Eig hth Amendment challeng es. See, e.g., Eck ert v. Tansy , 936 F.2d 444, 447–49 (9th Cir. 1991) (holding that the imposit ion of two consec utive life sentenc es for first16United States v. Morale s Angeles No. 10-5954 d egre e kidnapping was not excessively harsh relative to the g ravity of the crimes of which t h e defe ndant was convicted and there fore did not constitute crue l and unusual punishment). Morales An gel es offe rs no examples of decisions wher e a court has struck down, on Eig hth Amend m en t g rounds, a life sentenc e imposed for crimes simil ar to those for which he ha s been c onvicted. His bare asser

tion that his life sentenc e constitutes crue l and unusual punishment is insufficient to establish a constitutional violation. Be cause a “thre sho l d co mp arison” of the g ravity of Morales An gel es offe nse and the sever ity of his sentenc e does not reve al an infere nce of g ross disproportionality , we conclude that there was no Eig hth Amendment violation. See Harmelin , 501 U.S. at 1005 (Ke nnedy , J ., concur ring ). V. For the re asons provided a bove, we aff

irm the district court’s judg ment. Morales Ang eles has failed to establish that the district court err ed when it denied his motion for judgme nt of acquittal

or new trial, and he has not shown that his sentenc e was substantively unrea sonable or in violation of the Eig hth Amendment’s prohibition ag ainst crue l and unusual punishment.

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