USA v. Divad Washington

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13934
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIVAD WASHINGTON,
a.k.a. POD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:21-cr-00021-TKW-MJF-3
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2 Opinion of the Court 22-13934
____________________
Before WILSON, L AGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Divad Washington appeals his federal sentence of 180-
months’ imprisonment following his convictions for possessing
with intent to distribute 500 grams or more of methamphetamine
and possessing a firearm as a felon. He argues that the district court
committed reversible error by failing to note on its Judgment and
Containment (J&C) Order that his total sentence in the present
case should run concurrent with any sentence imposed in a case
pending against him in Florida state court at the time. After careful
review, we affirm.
I. Background
When a federal grand jury indicted Washington in July 2021,
Washington already had an outstanding state warrant in Florida.
Washington’s warrant in Florida related to 2019 offenses for
trafficking cocaine, money laundering, and using a two-way
communication device to commit a felony. In January 2022, the
Florida warrant was executed first, and the United States soon filed
a petition for writ of habeas corpus ad prosequendum.
Throughout Washington’s federal proceedings, he remained
primarily in state custody.
Washington pled guilty to both federal counts against him.
At his sentencing hearing, all parties—including his attorney and
his probation officer—were confused about whether Washington
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22-13934 Opinion of the Court 3
was primarily in state or federal custody. At the hearing, the
Government raised the issue of Washington’s pending state
charges and explained the court’s discretion about whether its
federal sentence would run concurrent and coterminous with a
potential state sentence. Whereas the Government believed
Washington was “[e]ssentially” in primary state custody,
Washington’s defense attorney was initially unsure.
Washington’s probation officer believed Washington was in
primary federal custody, and Washington’s attorney believed
Washington was in federal custody based on Washington’s own
belief that he was in federal custody. Further, Washington’s
attorney was unable to reach Washington’s state court defense
attorney and instead relied on Washington’s belief he would get
time-served on his state charges. Based on these statements, the
district court noted that it had “no particular concern with
whether” the federal and potential state sentences “run concurrent,
even though they’re separate and probably could justify running
them consecutive.” The transcript shows the district court judge
later stated that the two sentences “can run concurrent or
consecutive, however the state court wants to do it.” The J&C
does not include this language or state anything about concurrent
or consecutive sentences.
II. Standard of Review
We normally review a district court's sentencing decisions,
including whether to impose a concurrent or consecutive sentence,
under a deferential abuse-of-discretion standard. Gall v. United
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4 Opinion of the Court 22-13934
States, 552 U.S. 38, 41 (2007); United States v. Gomez, 955 F.3d 1250,
1255 (11th Cir. 2020) (per curiam). However, issues raised for the
first time on appeal are reviewed for plain error. United States v.
Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017) (per curiam). To
show plain error, a defendant must demonstrate: “(1) an error;
(2) that was obvious; (3) that affected the defendant’s substantial
rights; and (4) that seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Dudley,
5 F.4th 1249, 1255 (11th Cir. 2021), cert. denied, 142 S. Ct. 1376
(2022).
An error is plain if it is “clear or obvious, rather than subject
to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135
(2009). To show that an error affected his substantial rights, a
defendant “must ‘show a reasonable probability that, but for the
error,’ the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
III. Analysis
District courts generally have “discretion to select whether
the sentences they impose will run concurrently or consecutively
with respect to other sentences.” Setser v. United States, 566 U.S.
231, 236–37 (2012); see 18 U.S.C. § 3584(a). District courts can
impose a federal sentence consecutive to an unrelated state court
sentence not yet imposed for pending charges. See United States v.
Ballard, 6 F.3d 1502, 1507 (11th Cir. 1993). Multiple terms of
imprisonment imposed at the same time will default to running
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22-13934 Opinion of the Court 5
concurrently. 18 U.S.C. § 3584(a). Multiple terms of imprisonment
imposed at different times will default to running consecutively.
Id. After pronouncement of a sentence by a federal court, the
Attorney General, through the Bureau of Prisons (BOP), has the
authority to compute and administer the defendant’s sentence. See
18 U.S.C. § 3621(a).
On appeal, Washington argues that it was reversible error
for the district court to fail to include language in the J&C to reflect
the court’s statement at sentencing that the federal and state
sentences could be either concurrent or consecutive. Washington
posits that without the J&C explicitly stating that the sentences
could be concurrent, the state court lacked jurisdiction to impose a
concurrent sentence for BOP to follow. Because Washington did
not object to anything at the sentencing hearing, this argument is
new on appeal, and we review it for plain error.
We conclude that the district court did not err by refusing to
state whether Washington’s total sentence should run
consecutively or concurrently with a sentence that might be
imposed in the future in his state court case. The district court was
entitled to exercise discretion in deciding the concurrent or
consecutive nature of the federal sentence with the anticipated
state sentence. See 18 U.S.C. § 3584(a); Setser, 566 U.S. at 236–37.
The court was not required to set his total sentence to run
concurrently under the circumstances present here. See 18 U.S.C.
§ 3584(a). Thus, the court did not commit an error by declining to
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include in its order that the total sentence would run concurrently
with his anticipated state court sentence.
The statements from the sentencing hearing do not change
our conclusion. The transcript shows general confusion at the
sentencing hearing about whether Washington was primarily in
state or federal custody. Washington’s attorney repeatedly and
incorrectly stated that Washington was in primary federal custody.
Even if we labeled this as a court error, Washington has not
satisfied his burden on other prongs of the plain error standard.
The third prong requires showing that “but-for” an error, the
outcome of a case would be different. See Molina-Martinez, 578 U.S.
at 193. At the federal sentencing hearing, Washington’s belief that
his state sentence would only be for time already served came up
together with his belief that he was in federal custody. Washington
has not demonstrated that but-for the custody confusion, the
content of the J&C order and outcome of the proceeding would
differ from the actual result.
For the reasons discussed above, the district court did not
commit plain error by not mentioning in the J&C order whether
Washington’s federal sentence would run concurrently or
consecutively with his pending state sentence.
AFFIRMED.
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