[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-15354                ELEVENTH CIRCUIT
                                                              JUNE 16, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                                CLERK

                 D. C. Docket No. 09-00227-CR-2-SLB-RRA

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

CEDRIC JAVARIS MOORE,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                               (June 16, 2010)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Cedric Javaris Moore appeals his 115-month sentence, after
pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Moore raises three issues on appeal. First, he argues that the district

court erred in applying a two-level enhancement for use of a minor to commit the

offense, pursuant to U.S.S.G. § 3B1.4, because the enhancement requires an

affirmative act, not mere partnership, on his part to involve a minor in the offense.

Second, Moore argues that the district court abused its discretion in running his

sentence consecutive with his prior state and federal sentences and any unimposed

future sentences, resulting in a substantively unreasonable sentence. Moore’s final

argument is that the district court should have considered a § 3553(a) downward

variance or a downward departure pursuant to U.S.S.G. § 5K2.0(a) because the

injuries he sustained after being shot by police are a form of punishment.

                                          I.

      “The Supreme Court and this Court have long recognized that it is not

necessary to decide guidelines issues or remand cases for new sentence

proceedings where the guidelines error, if any, did not affect the sentence.” United

States v. Keene, 

, 1349 (11th Cir. 2006) (internal quotation marks

and alteration omitted). Thus, it is unnecessary for us to decide a disputed

guidelines issue when a district court states it “would have reached the same result

even if it had decided the guidelines issue the other way,” and when “the sentence



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imposed through the alternative or fallback reasoning of § 3553(a) [is] reasonable.”

whether the sentence is reasonable, we “assume that there was a

guidelines error – that the guidelines issue should have been decided in the way the

defendant argued and the advisory range reduced accordingly – and then ask

whether the final sentence resulting from consideration of the § 3553(a) factors

would still be reasonable.” 

the reasonableness of a district court’s sentence under a

deferential abuse of discretion standard of review. Gall v. United States, 

, 41, 

, 591 (2007). The district court is required to impose a

sentence that is “sufficient, but not greater than necessary, to comply with the

purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offense, deter criminal conduct, protect the public from the defendant’s future

criminal conduct, and provide the defendant with needed educational or vocational

training or medical care. See 18 U.S.C. § 3553(a)(2). In imposing a particular

sentence, the district court must also consider the nature and circumstances of the

offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and



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the need to provide restitution to victims. 

3553(a)(1), (3)-(7).

      We must examine whether the sentence is reasonable in light of the record

and the § 3553(a) factors. United States v. Talley, 

, 788 (11th Cir.

2005). The party challenging the sentence has the burden of establishing that the

sentence is unreasonable. 

court “has been accorded great

discretion in determining how to weigh [the § 3553(a)] factors” and we will not

reverse unless 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, 

, 1191, 1203 (11th Cir.

2008) (internal quotation marks omitted).

      Since the district court concluded it would have imposed the same sentence

regardless of how it resolved whether to apply the enhancement for using a minor

to commit an offense, pursuant to U.S.S.G. § 3B1.4, we need not resolve this

guidelines issue. We also conclude that, even if we address the guidelines issue

and find error, any error, was harmless because the record and the § 3553(a)

factors, including the violent nature of the crime as well as Moore’s criminal

history and history of violence, support the reasonableness of his sentence.

                                           II.



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      We review a “district court’s imposition of a consecutive sentence only for

an abuse of discretion.” United States v. Covington, 

, 1346 (11th

Cir. 2009), cert. denied, 

(2009). When sentencing a defendant

already subject to an undischarged term of imprisonment, a district court has the

authority to run the sentence concurrently or consecutively, but “must consider the

factors set forth in 18 U.S.C. § 3553(a) in determining whether a consecutive

sentence is appropriate.” See United States v. Bradford, 

, 1316 (11th

Cir. 2002) (citing 18 U.S.C. § 3584(b)). The court must also consider the type and

length of the prior undischarged sentence, the time already served and the time

likely to be served on the prior sentence, the court which imposed the prior

sentence, and any other relevant circumstances. U.S.S.G. § 5G1.3, comment.

(n.3(A)). We have held that 18 U.S.C. § 3584 and “the analogous Sentencing

Guidelines evince a preference for consecutive sentences when imprisonment

terms are imposed at different times.” United States v. Ballard, 

, 1506

(11th Cir. 1993). District courts also have “the authority to impose a consecutive

sentence to an unimposed, future sentence.” United States v. Andrews, 

, 1307 (11th Cir. 2003). “[W]hen the district court imposes a sentence within

the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” 

.



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      We conclude that, given the preference for consecutive sentences in this case

and the district court’s proper consideration of Moore’s prior sentences and the

§ 3553(a) factors, the district court did not abuse its discretion in denying Moore’s

request for concurrent sentences.

                                          III.

      “We lack jurisdiction to review a district court’s decision to deny a

downward departure unless the district court incorrectly believed that it lacked

authority to grant the departure.” United States v. Dudley, 

, 1228

(11th Cir. 2006). “[W]hen nothing in the record indicates otherwise, we assume

the sentencing court understood it had authority to depart downward.” 

marks omitted).

      Because there is nothing in the record suggesting the district court

incorrectly believed it lacked the authority to grant a downward departure, we

presume it understood it had such authority, and we lack jurisdiction to review the

district court’s denial of the departure. We further conclude that the district court

properly considered Moore’s injuries together with the factors set forth in §

3553(a) in denying his request for a downward variance. As a result, we affirm

Moore’s sentence.

      AFFIRMED.



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