[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________            FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-15291         ELEVENTH CIRCUIT
                                                        JULY 23, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                 D. C. Docket No. 09-00124-CR-2-JHH-TMP

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
                        _________________________

                                (July 23, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

     Cedric Javaris Moore pled guilty to both counts of a two-count indictment
charging him, in Count One, with possession of a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1), and, in Count Two, possession of a firearm

during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). On

October 6, 2009, the district court then sentenced him to consecutive prison terms

of 57 months on Count One and 60 months on Count Two. Moreover, the court

fashioned Moore’s total sentence consecutively to a prior state sentence imposed in

Alabama for revocation of probation. Moore raises two arguments on appeal,

which we address seriatim.

I.    Downward Departure

      First, Moore argues that the district court erred in denying his motion for a

downward departure from the Guidelines sentencing range because he continues to

suffer serious health problems as the result of a gunshot wound that he incurred in

July 2008, when he was shot by law enforcement officers during an arrest for

robbery in another case. Moore cites a case from the Ninth Circuit Court of

Appeals in support of his argument that his residual health problems from being

shot by law enforcement constitute continuing punishment for which he should

have received a downward departure. He argues that the district court “did not

adequately consider the issue of [Moore’s] extraordinary physical impairment, and

if so, whether those factors justified a downward departure.”



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      We generally lack the authority to review a district court’s refusal to issue a

downward departure under the Sentencing Guidelines. United States v. Chigbo, 

, 546 (11th Cir. 1994). However, we may review a district court’s refusal

to make a downward departure if it was based on the court’s misapprehension of its

statutory authority to depart from the sentencing guideline range. United States v.

Fossett, 

, 979 (11th Cir. 1989). In this case, the record reveals that

the district court did not erroneously believe that it lacked the authority to depart

downward, nor does Moore even raise this argument. We therefore do not review

court’s refusal to depart downward in this appeal.

II.   Reasonableness of Consecutive Sentences

      Next, Moore argues that the court erred by denying his request to fashion his

sentences concurrently with those imposed in his other pending cases in state and

federal court. He argues, for the first time, that his Alabama state court sentence

for revocation of probation was “relevant conduct” under U.S.S.G. § 5G1.3, and

the court should have adjusted his sentence under Count One to reflect the three

years that he had already served under his state sentence. Alternatively, Moore

argues that it was unreasonable under 18 U.S.C. § 3553(a) not to run his total 117

months’sentence concurrently with his prior undischarged state sentence because

his criminal history was largely juvenile, his minimum release date for the state



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sentence will be in 2025, and he was also sentenced in another federal case on the

same day that he was sentenced in the present case. In short, Moore argues that the

court should have credited his present sentence under Count One for the time he

had already served under an Alabama state sentence, or alternatively, fashioned his

total sentence “concurrently with either the state sentence, the subsequent federal

sentence, or both, so as to achieve a reasonable sentence.”

      a. Credit for Moore’s undischarged state sentence

      “Where a defendant raises a sentencing argument for the first time on

appeal, we review for plain error.” United States v. Aguillard, 

,

1320 (11th Cir. 2000). “For the Court to correct plain error: (1) there must be

error; (2) the error must be plain; and (3) the error must affect substantial rights.”

United States v. Stevenson, 

, 1294 (11th Cir. 1995). We review a

district court’s interpretation and application of the Sentencing Guidelines de novo.

United States v. Amedeo, 

, 831 (11th Cir. 2007). “The commentary

and application notes of the Sentencing Guidelines are authoritative unless they are

plainly erroneous, inconsistent with the regulation they interpret, or contrary to the

Constitution or federal law.” United States v. Caraballo, 

, 1230 n.2

(11th Cir. 2010).

      The Sentencing Guidelines provide direction regarding the imposition of a



                                            4
sentence for a defendant who is subject to an undischarged term of imprisonment.

See U.S.S.G. § 5G1.3. In pertinent part, sub-section (b) provides that if:

      a term of imprisonment resulted from another offense that is relevant
      conduct to the instant offense of conviction under the provisions of
      subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and
      that was the basis for an increase in the offense level for the instant
      offense under Chapter Two (Offense Conduct) or Chapter Three
      (Adjustments), the sentence for the instant offense shall be imposed as
      follows: (1) the court shall adjust the sentence for any period of
      imprisonment already served on the undischarged term of
      imprisonment if the court determines that such period of
      imprisonment will not be credited to the federal sentence by the
      Bureau of Prisons.

U.S.S.G. § 5G1.3(b) (emphasis added). However, the application notes provide

that subsection (b) does not apply when “the prior offense was a crime of violence

for which the defendant received an increased base offense level under § 2K2.1.”

U.S.S.G. § 5G1.3, comment. (n.2(B)).

      Here, Moore did not raise the argument before the district court that his

sentence under Count One should have been reduced by the period of

imprisonment that he had already served under his Alabama sentence, and thus we

review his argument for plain error. Moore’s argument is without merit, and he

cannot demonstrate any error under U.S.S.G. § 5G1.3(b) because his base offense

level was increased due to a prior crime of violence, § 5G1.3(b) does not apply to

him, and, therefore, he fails to show any error in the district court’s application of



                                           5
U.S.S.G. § 5G1.3(b).

      b. Reasonableness of Moore’s sentence

      We review a defendant’s sentence for reasonableness under an

abuse-of-discretion standard. Gall v. United States, 

, 46, 

, 594, 

(2007). Similarly, we review the imposition of a

consecutive sentence for an abuse of discretion. United States v. Covington, 

, 1346 (11th Cir. 2009).

      As we have explained, “[r]eview for reasonableness is deferential.” United

States v. Talley, 

, 788 (11th Cir. 2005). “In our evaluation of a

sentence for reasonableness, we recognize that there is a range of reasonable

sentences from which the district court may choose.” 

who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in light of both [the] record and the factors in section 3553(a).” 

provides that district courts must consider, inter alia, (1) the

applicable Guideline range; (2) the nature and circumstances of the offense; (3) the

history and characteristics of the defendant; (4) the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense; (5) the need for adequate deterrence to

criminal conduct; (6) protection of the public from further crimes of the defendant;



                                           6
and (7) the kinds of sentences available. See 18 U.S.C. § 3553(a)(1)-(6). “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 

, 832 (11th

Cir. 2007) (quotations and alterations omitted). “[A]n acknowledgment by the

district court that it has considered the defendant’s arguments and the factors in

section 3553(a) is sufficient under Booker.” 

(citing to

United States v. Booker, 

, 

, 

(2005)).

“The sentencing judge should set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority.” Rita v. United States, 

, 356,

, 2468, 

(2007). A sentence may be substantively

unreasonable “if it does not achieve the purposes of sentencing stated in

§ 3553(a).” United States v. Pugh, 

, 1191 (11th Cir. 2008)

(quotation omitted). Under 18 U.S.C. § 3584(b), the district court may impose a

concurrent or consecutive sentence, provided that the court has considered the

factors set forth above under § 3553(a). See 18 U.S.C. § 3584(b); see also

.

      Moore’s claim of substantive unreasonableness is without merit; we thus



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conclude that his sentences are reasonable in light of the record and the § 3553(a)

factors. While Moore argues that his sentences are unreasonable by virtue of the

district court’s decision to fashion his total sentence consecutively with his

undischarged state court sentence, the district court explained in detail its reasons

for doing so under § 3553(a). Under Talley, no further articulation of the court’s

reasoning was necessary. Based on the § 3553(a) sentencing factors, the court

reasonably determined that the sentences should run consecutively to Moore’s

undischarged Alabama state-sentence. Moreover, the court did not abuse its

discretion in declining to fashion its sentences around another pending, but not yet

final, federal sentence. In short, Moore’s sentences, which are within the

Guidelines sentencing ranges, are supported by the § 3553(a) factors, and Moore

has not met his burden to show that the court abused its discretion.

      AFFIRMED.




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