SUNTRUST BANK, Plaintiff-Appellee, v. HOUGHTON MIFFLIN COMPANY, Defendant-Appellant.
No. 01-12200.
United States Court of Appeals, Eleventh Circuit.
May 25, 2001.
252 F.3d 1165
Martin Garbus, Richard Kurnit, New York City, William B. Smith, Ralph R. Morrison, Anne Moody Johnson, Jones, Day, Reavis & Pogue, Atlanta, GA, for Plaintiff-Appellee.
Before BIRCH, MARCUS and WOOD*, Circuit Judges.
PER CURIAM:
It is mаnifest that the entry of a preliminary injunction in this copyright case was an abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment.
While it falls within the district court‘s discretion to grant a preliminary injunction, see Mitek Holdings, Inc. v. Arce Eng‘g Co., Inc., 198 F.3d 840, 842 (11th Cir.1999), “[t]he district court does not exercise unbridled discretion.” Canal Authority of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir.1974); Nnadi v. Richter, 976 F.2d 682, 690 (11th Cir.1992). Plainly, it must exercise that discretion in light of what we have termed the “four prerequisites for the еxtraordinary relief of preliminary injunction.” West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 956 (11th Cir.1982) (quoting Canal Authority, 489 F.2d at 572.). The prerequisites are: (1) that there is a substantial likelihood plaintiff will prevail on the merits; (2) that there is a substantial threat plaintiff will suffer irreparable injury if the injunction is not granted; (3) that the threatened injury to the plaintiff outweighs the threatened harm the injunction may do to the defendant; and (4) that granting the preliminary injunction will not disserve the public interеst. See Warren Publ‘g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516 (11th Cir.1997). We add that a preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant cleаrly carries its burden of persuasion on each of these prerequisites. Canal Authority, 489 F.2d at 573.
After thorough review of the entire record, we hаve concluded that Appellee SunTrust has failed to make this critical showing, that the district court abused its discretion by granting a рreliminary injunction, and that its ruling amounts to an unlawful prior restraint in violation of the First Amendment. Accordingly, we VACATE forthwith the preliminary injunction of the district court. A comprehensive opinion of the court will follow.
It is so ORDERED.
UNITED STATES of America, Plaintiff-Appellee, v. Monique Tujuan NAVES, Defеndant-Appellant.
No. 00-12170.
United States Court of Appeals, Eleventh Circuit.
May 25, 2001.
252 F.3d 1166
William G. Simpson, Raymond L. Johnson, Jr., G. Douglas Jones, Shirley I. McCarty, U.S. Atty., Department of Justice, Birmingham, AL, for Plaintiff-Appellee.
Before DUBINA and KRAVITCH, Circuit Judges, and DUPLANTIER*, District Judge.
DUPLANTIER, District Judge:
Monique Tujuan Naves appeals her sentence, a 168 month term of imprisonment, for onе count of carjacking, in violation of
U.S.S.G. § 2B3.1 provides a base offense level of 20 for a robbery conviction. To that base offense level the district judge added two levels pursuant to U.S.S.G. § 2B3.1(b)(5) because “the offense involved a carjacking.”1 Defendаnt contends that the base offense level fully accounted for the level of culpability attributed to the offense of сarjacking and that therefore adding two levels because “the offense involved carjacking” constitutes impermissible “dоuble counting.”
Generally, a claim of “double counting” presents a question of law which this court reviews de novo. United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th Cir.1999), cert. denied, 529 U.S. 1044, 120 S.Ct. 1547, 146 L.Ed.2d 359 (2000). However, whеre, as here, the objection to the “double counting” is raised for the first time on appeal, the objection is reviewed only for plain error to avoid manifest injustice. United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir.1995). In any event, we find no error here.
“Impermissible double counting occurs only when one part of the Guidelines is applied to increase a defendant‘s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” United States v. Matos-Rodriguez, 188 F.3d at 1309 (quoting United States v. Alexander, 48 F.3d 1477, 1492 (9th Cir.1995)) (citation and internal quotation marks omitted). Double counting is permitted “if the Sentencing Commission intended the result, and if the result is permissible because ‘each section concerns сonceptually separate notions related to sentencing.‘” United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir.1992) (quoting United States v. Aimufua, 935 F.2d 1199, 1201 (11th Cir.1991)). Absent a specific direction to the contrary, wе presume that the Sentencing Commission intended to apply separate guideline sections cumulatively. United States v. Stevenson, 68 F.3d at 1294.
In 1992 the United States Congress made robbery involving carjacking a federal crime by adding
Those amendments leave no doubt that the Sentencing Commission intended to apply the two point enhancement to the base robbery offense level of 20 for convictions under
The Sentencing Commission is authorized to рrovide such an enhancement as long as there is a rational relationship between the enhancement and a legitimate governmental objective. See United States v. Alexander, 48 F.3d at 1491. Appellant bears the burden of “demonstrating that the guideline provision is irrationаl.” United States v. Dudley, 102 F.3d 1184, 1187 (11th Cir.1997). Naves has failed to meet her burden of demonstrating that the two point enhancement is irrational.
Clearly the Sentencing Cоmmission could have added to the Manual a separate section for carjacking with a base offense level оf 22. It elected not to do so. Instead the Commission utilized the robbery section, § 2B3.1, which established a base offense level of 20 for the culpability incident to an offense involving robbery in general. The Commission then provided a two level increase to reflect the heightened seriousness of a robbery involving the violation of
Because we find no impermissible “double counting” in the district court‘s computation of appellant‘s offense level, we conclude that the sentence was proper, and we affirm the conviction and sentence.