United States v. Yudiesky Machado-Gonzalez , 391 F. App'x 842 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10554 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 11, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:05-cr-10005-KMM-2
UNITED STATES OF AMERICA,
lllllllllllllllllllll
Plaintiff - Appellee,
versus
YUDIESKY MACHADO-GONZALEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 11, 2010)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Yudiesky Machado-Gonzalez appeals his 10-month sentence, which was
imposed after the revocation of his supervised release. He argues that the district
court committed procedural error by failing to consider the 18 U.S.C. § 3553(a)
sentencing factors when imposing his sentence. For the reasons set forth below, we
affirm.
I.
In 2005, Machado-Gonzalez pled guilty to conspiracy to commit alien
smuggling, in violation of 18 U.S.C. § 371. Initially, he was permitted to remain
free on bond until sentencing, but his bond was revoked when he was arrested, on
June 22, 2005, for attempting to smuggle 33 Cuban immigrants into the United
States. Machado-Gonzalez was sentenced to 12 months’ imprisonment, followed
by 1 year of supervised release, for the alien smuggling offense.
Based on his bond violation in the alien smuggling case, Machado-Gonzalez
was charged in a separate indictment with contempt, in violation of 18 U.S.C.
§ 401(3). He pled guilty to this offense and was sentenced to 24 months’
imprisonment, followed by 3 years of supervised release. The court ordered that
this sentence be served consecutively with Machado-Gonzalez’s 12-month
sentence in the alien smuggling case.
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Machado-Gonzalez began serving his terms of supervised release on
November 19, 2007. In March 2008, Machado-Gonzalez’s probation officer
petitioned the court to revoke Machado-Gonzalez’s supervised release in the
contempt case, because, on February 15, 2008, Machado-Gonzalez traveled five
nautical miles southwest of Cay Sal Bank, Bahamas without seeking the
permission of his probation officer or the court. The district court revoked
Machado-Gonzalez’s supervised release and sentenced him to 60 months’
imprisonment with no supervised release to follow.
On February 27, 2009, Machado-Gonzalez was charged with failing to
heave to a law enforcement officer’s vessel, in violation of Title 18 U.S.C.
§§ 2237(a)(1) and 2. This charge arose from the February 15, 2008, incident that
resulted in the revocation of supervised release in Machado-Gonzalez’s contempt
case. Machado-Gonzalez pled guilty to failure to heave and the district court
sentenced him to 27 months’ imprisonment, to run concurrently with the 60-month
sentence he was serving in the contempt case.
Based on Machado-Gonzalez’s conviction in the failure to heave case, the
probation office filed a petition to revoke the one-year term of supervised release
imposed in the 2005 alien smuggling case. At Machado-Gonzalez’s revocation
hearing, the court noted that Machado-Gonzalez was subject to a guideline
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imprisonment range of four to ten months. Machado-Gonzalez noted that he still
had to serve a significant portion of his 60-month contempt sentence and asked the
court to run any additional term of imprisonment concurrently with the sentence
he was already serving. He also asked the court to impose an additional term of
supervised release rather than ordering additional incarceration. The court stated
that it had “carefully considered the statements of all parties and the information
contained in the violation report” and sentenced Machado-Gonzalez to ten
months’ imprisonment, to run consecutively to the sentences imposed in the
contempt and failure to heave cases. Machado-Gonzalez objected to “the
reasonableness of th[e] sentence in light of the other sentences which [he was]
already serving.”
II.
We generally review a sentence imposed upon revocation of supervised
release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07
(11th Cir. 2006). However, where a defendant fails to object to a sentencing error
before the district court, we review for plain error. See United States v. Castro,
455 F.3d 1249, 1251 (11th Cir. 2006). To establish plain error, a defendant must
show that there was an “(1) error, (2) that is plain and (3) that affects substantial
rights. If all three conditions are met, [we] may then exercise [our] discretion to
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notice a forfeited error, but only if . . . the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007). “An error is plain if it is obvious and clear
under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir.
2006). “An error that affects substantial rights is one that affected the outcome of
the district court proceedings.” United States v. Henderson, 409 F.3d 1293, 1308
(11th Cir. 2005) (quotations omitted).
“The purpose of the plain error rule is to enforce the requirement that parties
object to errors at trial in a timely manner so as to provide the trial judge an
opportunity to avoid or correct any error, and thus avoid the costs of reversal.”
United States v. Sorondo, 845 F.2d 945, 948-49 (11th Cir. 1988). Although we
have not yet done so, the First, Third, Sixth, Ninth, and Tenth Circuits have
applied plain error review to procedural reasonableness claims raised for the first
time on appeal. See, e.g., United States v. Gilman, 478 F.3d 440, 447 (1st Cir.
2007) (applying plain error to defendant’s argument, raised for the first time on
appeal, that the district court failed to adequately explain the reasoning behind its
sentence); United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006) (reviewing
for plain error the defendant’s unpreserved argument “that the District Court failed
to give a sufficient statement of reasons under 18 U.S.C. § 3553(c) for its
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imposition of sentence”); United States v. Bailey, 488 F.3d 363, 367-69 (6th Cir.
2007) (applying plain error review to a defendant’s procedural reasonableness
challenge, raised for the first time on appeal, but traditional reasonableness review
to a substantive reasonableness challenge made for the first time on appeal);
United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.
2006) (applying plain error review where the defendant “did not object [at
sentencing] on the ground that the district court did not sufficiently address and
apply the factors listed in § 3553(a)”); United States v. Mancera-Perez, 505 F.3d
1054, 1058 (11th Cir. 2007) (holding that plain error review applies to a
defendant’s challenge of the method by which his sentence was determined, but
not to a defendant’s claim that his sentence is unreasonably long).
When revoking a defendant’s term of supervised release, 18 U.S.C.
§ 3583(e) instructs courts to consider certain 18 U.S.C. § 3553(a) sentencing
factors in determining an appropriate sentence. See 18 U.S.C. § 3583(e).
Specifically, sentencing courts must consider (1) “the nature and circumstances of
the offense and the history and characteristics of the defendant,” (2) the need for
deterrence, (3) the need to protect the public, (4) the need to provide the defendant
with educational or vocational training, medical care, or other correctional
treatment, (5) the kinds of sentences available and the applicable sentencing range,
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(6) any pertinent policy statements, (7) the need to avoid unwarranted sentencing
disparities, and (8) the need to provide restitution to any victims. See 18 U.S.C.
§ 3583(e); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7).
A sentence may be procedurally unreasonable if the sentencing court fails to
consider the factors set forth in 18 U.S.C. § 3553(a), or fails to adequately explain
the chosen sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,
169 L.Ed.2d 445 (2007). The district court need not discuss or explicitly state on
the record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). Instead, an acknowledgment by the district court that it has
considered the defendant’s arguments and the § 3553(a) factors will suffice. Id. at
1329-30; see United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007)
(holding that the defendant’s sentence was procedurally reasonable, even though
the district court failed to expressly state that it had considered the § 3553(a)
factors, because the record showed that the court considered the defendant’s
objections, motion for a departure, and the presentence investigation report
(“PSI”), all of which implicated several of the § 3553(a) factors).
III.
At the conclusion of his sentencing proceeding, Machado-Gonzalez
objected that his sentence was substantively unreasonable “in light of the other
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sentences which [he was] already serving.” He failed to object to the procedure
the district court used in imposing the sentence, and he did not mention the
§ 3553(a) factors or the court’s failure to consider them. Thus,
Machado-Gonzalez failed to preserve his objection to the procedural
reasonableness of his sentence. In light of the purpose of the plain error rule and
the substantial number of persuasive cases applying plain error review to
unpreserved claims of procedural error, we review Machado-Gonzalez’s
unpreserved procedural reasonableness argument under the plain error standard of
review. See Sorondo, 845 F.2d at 948-49; Gilman, 478 F.3d at 447; Parker, 462
F.3d at 278; Bailey, 488 F.3d at 367-69.
Machado-Gonzalez satisfies the first two elements of the plain error
standard. Although the district court stated that its decision to revoke
Machado-Gonzalez’s supervised release was based on its consideration of the
parties’ arguments and the information contained in the violation report, the
violation report is not included in the record and the government admits that
Machado-Gonzalez’s sentencing arguments were unrelated to the § 3553(a)
factors. Thus, the record fails to show that the district court considered the
§ 3553(a) factors by reviewing the violation report and the parties’ arguments. Cf.
Dorman, 488 F.3d at 944 (district court’s consideration of PSI and defendant’s
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objections and motion for departure indicated consideration of § 3553(a) factors,
because PSI, objections, and motion all discussed § 3553(a) factors). The district
court also never explicitly stated that it had considered the § 3553(a) factors or
offered any explanation for the sentence it imposed. Because current case law
requires the court to consider the § 3553(a) factors when revoking supervised
release and imposing a term of imprisonment, the district court committed error
that was plain in failing to consider these factors. See Eckhardt, 466 F.3d at 948;
18 U.S.C. § 3583(e); Gall, 552 U.S. at 51, 128 S.Ct. at 597.
However, Machado-Gonzalez fails to meet the third element of the plain
error standard, because he fails to allege or present any evidence indicating that he
would have received a different sentence if the district court had considered the
§ 3553(a) factors. See Turner, 474 F.3d at 1276; Henderson, 409 F.3d at 1308.
Machado-Gonzalez does not explain which, if any, § 3553(a) sentencing factor
would have compelled the court to impose a lesser sentence, and he cites nothing
in the sentencing transcript indicating that the court would have imposed a lesser
sentence if it had considered the § 3553(a) sentencing factors. Under the plain
error standard of review, the burden of showing a violation of substantial rights
rests on the defendant. See Turner, 474 F.3d at 1276. Here, Machado-Gonzalez
has failed to satisfy this burden. Accordingly, we affirm his 10-month sentence.
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AFFIRMED.
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