USCA11 Case: 21-11056 Date Filed: 11/04/2021 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11056
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GERARDO VALDEZ,
a.k.a. Luis Geraldo Valdez,
a.k.a. Luis Gerrado Valdez,
Defendant-Appellant.
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2 Opinion of the Court 21-11056
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00079-KKM-JSS-1
____________________
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Luis Gerardo Valdez appeals his sentence of eight months of
imprisonment followed by one year of supervised release, imposed
upon revocation of his supervised release. On appeal, Valdez ar-
gues that the district court imposed a procedurally and substan-
tively unreasonable sentence. He also argues that there was a con-
flict between the district court’s oral pronouncement recommend-
ing inpatient substance abuse treatment and its written judgment
requiring inpatient treatment. We affirm but remand with instruc-
tions for the district court to conform its written order with its oral
pronouncement of sentence.
I.
In December 2020, Valdez began serving a term of super-
vised release as part of his sentence for conspiring to transport an
undocumented alien. Two months later, Valdez’s probation of-
ficer filed a petition alleging that Valdez had violated the conditions
of his supervised release on at least nine occasions by using illegal
drugs, failing to notify the probation officer within 72 hours after
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21-11056 Opinion of the Court 3
being questioned by law enforcement, lying in response to a pro-
bation officer’s inquiry, and repeatedly refusing to comply with his
home detention program.
Valdez admitted to all nine violations. The district court ad-
judicated Valdez guilty of violating the conditions of his supervised
release, revoked the previously imposed term of supervised re-
lease, and sentenced Valdez to eight months in prison followed by
one year of supervised release. Valdez appeals, arguing that his
sentence is procedurally and substantively unreasonable and that
the district court erred by entering a written judgment that con-
flicted with its oral pronouncement at his sentencing hearing.
II.
We turn first to Valdez’s argument that his sentence was un-
reasonable. We review his claim of procedural unreasonableness
only for plain error because Valdez did not object to his sentence
on that ground in the district court. United States v. Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). Under the plain error stand-
ard, an appellant must show that (1) the district court erred; (2) the
error was plain or obvious; and (3) the error affected his substantial
rights.
Id. If all three conditions are met, we may reverse if the
error seriously affected the integrity, fairness, or public reputation
of judicial proceedings.
Id. We review the substantive reasonable-
ness of Valdez’s sentence using an abuse of-discretion standard.
United States v. Irey,
612 F.3d 1160, 1188–89 (11th Cir. 2010) (en
banc).
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4 Opinion of the Court 21-11056
A.
Valdez argues that the district court made procedural errors
by relying on two impermissible factors when imposing his sen-
tence. First, Valdez points to the district court’s acknowledgment
of his need for drug treatment, arguing that the court improperly
considered his need for rehabilitation in determining the length of
his sentence of imprisonment. See Tapia v. United States,
564 U.S.
319, 321, 334–35 (2011). We find no reversible plain error in this
regard. As an initial matter, we are not convinced that the district
court considered the need for drug treatment in determining the
appropriate term of imprisonment for Valdez. Although the dis-
trict court noted that Valdez had asked for drug treatment and
stated its intention to fashion a sentence that provided drug reha-
bilitation assistance, it included the requirement for substance
abuse treatment as a condition of supervised release, and did not
make any provision or recommendation for such rehabilitation
during his term of incarceration.
And in any event, even if we assume that the district court
did err in considering Valdez’s request for drug treatment, the er-
ror is not reversible under the plain-error standard because Valdez
has not shown that it affected his substantial rights. To show that
an error affected his substantial rights, a defendant generally must
show that the error “affected the outcome of the district court pro-
ceedings.” United States v. Olano,
507 U.S. 725, 734 (1993). The
district court explained its sentence at length, and it gave several
reasons for the term of imprisonment it imposed that were
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21-11056 Opinion of the Court 5
unrelated to Valdez’s drug addiction or his need for rehabilitation.
For example, the court emphasized the “multitude and immedi-
acy” of Valdez’s violations during his first term of supervised re-
lease, and it referred to Valdez’s criminal history and the need to
deter further criminal activity. It also found “particularly relevant”
the Sentencing Commission policy statement advising against a
sentence of home confinement or less restrictive sanction where
(as here) the revocation of supervised release is based in part on the
defendant’s violation of previously imposed home-confinement
conditions. See U.S.S.G. § 7B1.3(c)(3). At most, therefore, any con-
sideration of Valdez’s need for drug treatment formed only a small
part of the court’s reasoning in deciding to impose an eight-month
term of imprisonment, and Valdez has not shown that his sentence
would have been any different in the absence of that consideration.
See Vandergrift, 754 F.3d at 1312.
Second, Valdez argues that the district court erred in consid-
ering the sentencing factors identified in
18 U.S.C. § 3553(a)(2)(A)
when revoking his supervised release. The statute providing for
the modification or revocation of supervised release requires
courts to consider several specific § 3553(a) sentencing factors: the
nature and circumstances of the offense and the history and char-
acteristics of the defendant; the need for deterrence, protection of
the public, and correctional treatment; the applicable Sentencing
Guidelines and policy statements; the need to avoid sentencing dis-
parities; and the need to provide restitution to any victims.
18
U.S.C. § 3583(e); see
18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7).
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Notably absent from this list is § 3553(a)(2)(A), which instructs
courts initially imposing sentence to consider the need for the sen-
tence “to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense.” The
statute does not explicitly forbid consideration of those factors,
however, and neither this Court nor the Supreme Court has de-
cided whether the omission of § 3553(a)(2)(A) from the list of fac-
tors to be considered on the revocation of supervised release effec-
tively prohibits their consideration. Other circuits are split on the
issue. See Vandergrift, 754 F.3d at 1308–09. And we need not de-
cide the issue today, because—as we have explained before—the
unsettled state of the law means that any error in this regard is not
clear and obvious and therefore does not meet the requirements
for reversal under the plain-error standard. See Olano,
507 U.S. at
734; Vandergrift, 754 F.3d at 1309.
B.
Valdez also argues that the district court’s total sentence of
eight months in prison followed by a term of supervised release
that includes three months in a halfway house and potentially in-
patient substance-abuse and mental-health treatment is substan-
tively unreasonable. We examine the substantive reasonableness
of a sentence by considering the “totality of the circumstances” and
whether the sentence achieves the purposes outlined in
18 U.S.C.
§ 3553(a). United States v. Sarras,
575 F.3d 1191, 1219 (11th Cir.
2009). “The party challenging the sentence bears the burden to
show that it is unreasonable in light of the record and the § 3553(a)
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21-11056 Opinion of the Court 7
factors.” United States v. Tome,
611 F.3d 1371, 1378 (11th Cir.
2010). “A district court abuses its considerable discretion and im-
poses a substantively unreasonable sentence only when it (1) fails
to afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” United States v. Rosales-Bruno,
789 F.3d 1249,
1256 (11th Cir. 2015) (citation and quotation marks omitted). Ap-
plying the abuse-of-discretion standard, we will reverse only if we
are “left with the definite and firm conviction that the district court
arrived at a sentence falling outside the range of reasonable sen-
tences.” United States v. McQueen,
727 F.3d 1144, 1156 (11th Cir.
2013).
We are not left with that conviction here. The district court
explained its sentencing decision by reference to relevant § 3553(a)
factors, including Valdez’s history and characteristics, the need for
deterrence, and the Guidelines sentencing range and applicable
policy statements. To the extent that the court’s consideration of
the sentencing factors in § 3553(a)(2)(A) was improper—a question
that, again, we need not decide today—the court did not appear to
give undue weight to those factors. The sentence that the court
imposed was squarely in the middle of the advisory Guidelines
range of 5–11 months’ imprisonment and well below the statutory
maximum of two years’ imprisonment and up to three years (mi-
nus the term of imprisonment imposed) of supervised release, both
of which are indicators of the substantive reasonableness of the
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8 Opinion of the Court 21-11056
sentence. See
18 U.S.C. § 3583(e)(3) & (h); United States v. Gonza-
lez,
550 F.3d 1319, 1324 (11th Cir. 2008); United States v. Hunt,
526
F.3d 739, 746 (11th Cir. 2008). And the court’s conditions of super-
vised release requiring Valdez to live in a halfway house and par-
ticipate in substance-abuse and mental-health treatment could
hardly be deemed unreasonable when Valdez complained at the
hearing that his violations resulted from the lack of a reentry pro-
gram and inadequate treatment for his drug addiction after his pre-
vious term of imprisonment. We therefore reject Valdez’s argu-
ment that his sentence was substantively unreasonable.
III.
We are compelled to remand to the district court, however,
based on an inconsistency between the court’s oral pronounce-
ment of sentence and its written order of judgment. As Valdez
points out, the district court stated at sentencing that it would re-
quire Valdez to participate in substance-abuse treatment as a con-
dition of supervised release, and that it would “recommend” that
the treatment be inpatient. But the court’s written judgment states
that Valdez “shall participate in a substance abuse program (inpa-
tient).” We have held that when “a sentence pronounced orally
and unambiguously conflicts with the written order of judgment,
the oral pronouncement governs.” United States v. Bates,
213 F.3d
1336, 1340 (11th Cir. 2000); see also United States v. Chavez,
204
F.3d 1305, 1316 (11th Cir. 2000). The remedy in such a situation is
a limited remand with instructions for the district court to enter an
amended judgment that conforms to its earlier oral
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21-11056 Opinion of the Court 9
pronouncement. Chavez,
204 F.3d at 1316. Because the district
court’s oral pronouncement of Valdez’s sentence conflicts with its
written judgment as to whether the required drug treatment must
be completed on an inpatient basis, we remand with instructions
for the district court to enter an amended judgment that conforms
to its earlier oral pronouncement regarding the substance abuse
program.
AFFIRMED and REMANDED with instructions.
