US v. Shorter

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 24, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10368
Non-Argument Calendar
________________________
D.C. Docket No. 1:08-cr-20336-DLG-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
SHELDON O. SHORTER,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 24, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Sheldon O. Shorter appeals his 24-month sentence for aggravated identity
theft in violation of 18 U.S.C. § 1028A. On appeal, Shorter argues that the district

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court incorrectly concluded that it was required by § 1028A to impose a sentence
that would run consecutively to a prior, undischarged sentence he received for
drug offenses. Shorter also argues that the statutory sentencing scheme found in §
1028A violated his due process rights.
“We review issues of statutory interpretation de novo.” United States v.
Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (citation omitted). In interpreting
a statute, a court should first “determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute.” United States v.
Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (citation and quotation omitted).
“If the statute’s meaning is plain and unambiguous, there is no need for further
inquiry.” Id. at 1338. “[T]his Court must assume that Congress used the words of
the statute as they are commonly and ordinarily understood and must construe the
statute so each of its provisions is given full effect.” United States v. McLymont,
45 F.3d 400, 401 (11th Cir. 1995) (per curiam) (citation omitted). However,
where actual ambiguities exist in a criminal statute, the “rule of lenity” requires
that such ambiguities be resolved in favor of criminal defendants. United States v.
Trout, 68 F.3d 1276, 1280 (11th Cir. 1995) (per curiam) (citation omitted).
Further, to the extent that any ambiguity exists in the plain language of a statute,
we may apply the doctrine of constitutional doubt, which instructs us “to construe
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a statute that is genuinely susceptible to two constructions in favor of the
construction that avoids a serious likelihood that the statute will be held
unconstitutional.” Tilton v. Playboy Entm’t Group, Inc., 554 F.3d 1371, 1376
(11th Cir. 2009) (citation and quotation omitted).
Under 18 U.S.C. § 1028A(a)(1),
Whoever, during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person shall, in
addition to the punishment for such felony, be sentenced to a term of
imprisonment of 2 years.
The relevant portion of § 1028A(b), relating to consecutive sentences, provides
that:
Notwithstanding any other provision of law . . . except as provided in
paragraph (4), no term of imprisonment imposed on a person under
this section shall run concurrently with any other term of
imprisonment imposed on the person under any other provision of
law, including any term of imprisonment imposed for the felony
during which the means of identification was transferred, possessed,
or used;
Id. § 1028A(b)(2). The exception to this requirement for consecutive sentences
provides that a court has the discretion to impose a concurrent sentence “only with
another term of imprisonment that is imposed by the court at the same time on that
person for an additional violation of this section.” Id. § 1028A(b)(4). The
statute additionally states that:
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in determining any term of imprisonment to be imposed for the felony
during which the means of identification was transferred, possessed,
or used, a court shall not in any way reduce the term to be imposed
for such crime so as to compensate for, or otherwise take into
account, any separate term of imprisonment imposed or to be imposed
for a violation of this section.
Id. § 1028A(b)(3).
Although we have not addressed in a published opinion whether § 1028A
requires a court to impose a two-year sentence that runs consecutively to a
previous, unrelated sentence, we have held that similar language in 18 U.S.C.
§ 924(c) requires a court to impose a sentence under that statute to run
consecutively to separate, undischarged state sentences. See McLymont, 45 F.3d
at 402. The relevant statutory language we interpreted in McLymont provided:
Notwithstanding any other provision of law, the court shall not place
on probation or suspend the sentence of any person convicted of a
violation of this subsection, nor shall the term of imprisonment
imposed under this subsection run concurrently with any other term
of imprisonment including that imposed for the crime of violence or
drug trafficking crime in which the firearm was used or carried.
Id. at 401 (quoting 18 U.S.C. § 924(c) (1995)). We noted that “Congress’ use of1
The current version of § 924(c)(1)(D) provides:1
Notwithstanding any other provision of law (i) a court shall not place on probation
any person convicted of a violation of this subsection; and (ii) no term of
imprisonment imposed on a person under this subsection shall run concurrently
with any other term of imprisonment imposed on the person, including any term
of imprisonment imposed for the crime of violence or drug trafficking crime
during which the firearm was used, carried, or possessed.
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the phrase ‘notwithstanding any other provision of law’ makes it clear that
Congress intended the penalty provisions of § 924(c) to take precedence over any
preexisting or subsequently-enacted sentencing legislation.” Id. We further held
that “Congress’ use of the language ‘nor shall the term of imprisonment imposed
under this subsection run concurrently with any other term of imprisonment’
clearly evinces a Congressional intent that the mandatory punishment be in
addition to any other term of imprisonment” regardless of what underlying
conduct the other sentence encompassed. Id.
We also review the constitutionality of a statute de novo. United States v.
Ambert, 561 F.3d 1202, 1205 (11th Cir. 2009) (citation omitted). Due process
requires that a sentencing scheme be rational and not based on an arbitrary
distinction. Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 1927
(1991) (noting that, in this context, “an argument based on equal protection
essentially duplicates an argument based on due process”). “Congress has the
power to define criminal punishments without giving the courts any sentencing
discretion,” and even a sentencing scheme that does not consider individual
degrees of culpability may still be constitutional. Id. at 467; 111 S. Ct. at 1928–29
We find that the interpretation of § 924(c) in McLymont is still applicable to this case.
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(citation omitted). “Where a statute does not discriminate on racial grounds or
against a suspect class, Congress’ judgment will be sustained in the absence of
persuasive evidence that Congress had no reasonable basis for drawing the lines
that it did.” United States v. Grinnell, 915 F.2d 667, 669 (11th Cir. 1990) (per
curiam) (alteration omitted) (citation and quotation omitted). Thus, “[o]ur
responsibility is not to determine whether this was the correct judgment or whether
it best accomplishes Congressional objectives; rather, our responsibility is only to
determine whether Congress’ judgment was rational.” United States v. Holmes,
838 F.2d 1175, 1178 (11th Cir. 1988) (holding that because the sentencing scheme
in 18 U.S.C. § 841(b)(1) is rational, the defendant was denied neither due process
nor equal protection under the Fifth Amendment).
We recently held that an imposition of a consecutive sentence under
§ 1028A(b) does not violate the Double Jeopardy Clause of the Fifth Amendment
and noted that legislative history shows that Ҥ 1028A was enacted to enhance the
penalties for ‘persons who steal identities to commit terrorist acts, immigration
violations, firearms offenses, and other serious crimes’” and “the statute’s ‘2-year
penalty enhancement is in addition to any term of imprisonment for the underlying
offense.’” United States v. Bonilla, 579 F.3d 1233, 1242 n.3 (11th Cir. 2009)
(quoting H.R. Rep. No. 108-528 (2004)), cert. denied, 130 S. Ct. 2361 (2010).
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Upon review of the record and consideration of the parties’ briefs, we
affirm. In light of the plain language of § 1028A(b)(2), the district court correctly
determined that it was required to impose a two-year sentence that runs
consecutively to Shorter’s prior, unrelated sentence for drug trafficking. Further,
the statutory sentencing scheme found in § 1028A did not violate Shorter’s
constitutional rights because the scheme is rational and not based on an arbitrary
distinction.
AFFIRMED.
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