United States v. Jose Lazaro Robaina , 194 F. App'x 735 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 5, 2006
No. 06-11033 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00069-TP-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LAZARO ROBAINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 5, 2006)
Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Jose Lazaro Robaina appeals his sentence of 36 months’ imprisonment
following the revocation of his term of supervised release. First, Robaina argues
that the district court’s decision to sentence him at the statutory maximum was
“unreasonable and violated [his] due process [rights] because there was insufficient
evidence in the record that [he] was a drug dealer.” Second, Robaina argues that
his sentence was illegal because the court failed to: (a) make a statement of the
reasons for the departure upwards; (b) consider the guidelines’ Chapter 7 policy
statements; (c) consider the 18 U.S.C. § 3553(a) factors; and (d) consider
18 U.S.C. § 3583(d), which he argues requires the court to consider substance
abuse programs in sentencing.
I.
We review an appellant’s total sentence for reasonableness. United States v.
Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). In reviewing a sentence for
reasonableness, we are guided by the factors in 18 U.S.C. § 3553(a). United States
v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Such review is deferential,
requiring only that we “evaluate whether the sentence imposed by the district court
fails to achieve the purposes of sentencing.” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). Because Robaina failed to object to the constitutionality of
his sentence before the district court, we will review this issue only for plain error.
United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006).
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Finally, we review a district court’s decision after revocation of supervised
release to impose a sentence above the range recommended by Chapter 7 of the
Sentencing Guidelines for abuse of discretion. United States v. Brown, 224 F.3d
1237, 1239 (11th Cir. 2000). A court abuses its discretion when its decision “rests
upon a clearly erroneous finding of fact, an errant conclusion of law, or an
improper application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202
(11th Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006).
“Defendants involved in revocation proceedings are entitled to certain
minimal due process requirements.” United States v. Frazier, 26 F.3d 110, 114
(11th Cir. 1994). In the parole revocation context, the Supreme Court has held that
due process requires:
(a) written notice of the claimed violations;
(b) disclosure of the evidence against the person;
(c) an opportunity to be heard in person and to present evidence;
(d) the right to confront and cross-examine witnesses;
(e) a “neutral and detached” hearing body; and
(f) a written statement by the factfinders indicating the evidence
upon which they relied and their reasons for revoking
supervision.
Morrissey v. Brewer, 408 U.S. 471, 488-89, 487, 92 S.Ct. 2593, 2604, 33 L.Ed.2d
484 (1972). We have extended the “protections granted those facing revocation of
parole [to cover] those facing the revocation of supervised release.” United States
v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994).
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We have held that “[t]he findings of fact of the sentencing court may be
based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,
undisputed statements in the presentence report, or evidence presented at the
sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989). Further, a sentencing court “may consider any information with sufficient
reliability.” United States v. Riley, 142 F.3d 1254, 1258 (11th Cir. 1998).
Having carefully reviewed the record and the briefs of the parties, we find
no reversible error. Although the district court did not expressly state that it had
considered the § 3553(a) factors, it is nevertheless clear from our review of the
sentencing transcript that it considered those factors. Further, the court did
acknowledge that the advisory imprisonment range was 12 to 18 months. Based on
our review of the record, we conclude that the sentence at the statutory maximum
was reasonable.
Robaina does not specifically explain how the district court violated his due
process rights beyond connecting the violation to a lack of evidence. However,
due process does not specifically address such an issue. Add to this the fact that
Robaina does not cite any authority on this point, and it becomes difficult to detect
how we should analyze the issue. Nevertheless, the record shows that Robaina did
receive written notice of the claimed violations in form of the probation officer’s
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petition and superceding petition. It is also clear that Robaina’s counsel had access
to the probation officer’s report, which disclosed the evidence against him. Next,
the court gave Robaina an opportunity to be heard, and although he did not present
evidence or examine any adverse witnesses after admitting to the violations, his
opportunity to do so was not restricted. Finally, the court was neutral, and
although it did not expressly state the reasons for the revocation, as discussed
below, this is not plain error.
Before the district court, Robaina’s counsel admitted that Robaina was a
drug addict and that he had been arrested with eight small bags of cocaine. The
government also raised his drug addiction and asserted that he also sold drugs. The
probation officer’s report contained background information about Robaina, and
further reported that eight bags of cocaine had been found in Robaina’s residence,
and that the probation officer had determined that Robaina had moved without
telling him and that he was not working but was dealing drugs.
While Robaina’s counsel did question the sufficiency of the physical
evidence alone to support the finding that Robaina was dealing drugs, he did not
address the probation officer’s report, and he did not otherwise challenge the
reliability of the findings contained therein. Taking all of the information before
the court into consideration, the finding that Robaina had been dealing drugs was
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supported. Accordingly, the court was apparently convinced that Robaina was a
danger to the community. In addition, Robaina himself had a chronic problem
with drug addiction, and he had lied to his probation officer. Thus, the court did
not abuse its discretion in sentencing Robaina above the term recommended by the
guidelines’ Chapter 7 policy statements.
II.
“Where the district court has offered the opportunity to object and a party is
silent or fails to state the grounds for objection, objections to the sentence will be
waived for purposes of appeal, and [we] will not entertain an appeal based upon
such objections unless refusal to do so would result in manifest injustice.” United
States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds,
United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir.1993). Because Robaina
did not raise the objections he raises here before the district court, they are waived
and will be reviewed for plain error only. See United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000).
Plain error exists only where (1) there is an error; (2) the error is plain or
obvious; and (3) the error affects the defendant’s substantial rights. United States
v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).
When these three factors are met, we may then exercise our discretion and correct
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the error if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736, 113 S.Ct. at 1779.
a.
According to statute, “[t]he court, at the time of sentencing, shall state in
open court the reasons for its imposition of the particular sentence, and, if the
sentence . . . is [longer than recommended by the guidelines], the specific reason
for the imposition of [such] a sentence . . . , which reasons must also be stated with
specificity in the written order of judgment and commitment.” 18 U.S.C.
§ 3553(c)(2).
Having carefully reviewed the record and the briefs of the parties, we find
no reversible error. The reasons for the sentence the court imposed are evident
from the sentencing transcript. Furthermore, because Robaina’s argument was not
preserved below, he must show not only that there was error, but that it was also
plain. In order for the error to be plain, there must be binding precedent clearly
holding that it is such. See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir.
2005) (“‘[a]n error cannot meet the ‘plain’ requirement of the plain error rule if it
is not ‘clear under current law.’”). While the Eighth Circuit has addressed the
issue, we have not, nor has the Supreme Court. See United States v. White Face,
383 F.3d 733, 737-39 (8th Cir. 2004). Accordingly, Robaina has not demonstrated
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plain error in this regard, and his argument is meritless.
b.
We have consistently held that the policy statements of Chapter 7 are merely
advisory and not binding. Aguillard, 217 F.3d at 1320. However, the district court
is required to consider the statements, and when exceeding them, “must normally
indicate that it considered [them].” United States v. Silva, 443 F.3d 795, 799
(11th Cir. 2006); see 18 U.S.C. § 3553(a)(4) (requiring the district court, when
sentencing after revocation of supervised release, to consider the Chapter 7 policy
statements). In this regard, it is generally “enough that there is some indication the
district court was aware of and considered [the policy statements].” Aguillard, 217
F.3d at 1320.
Having carefully reviewed the record and the briefs of the parties, we find
no reversible error. Here, the district court expressly relied on the probation
officer’s report when it sentenced Robaina. The report, as discussed above,
analyzed the Chapter 7 policy statements in great detail. Further, the court
acknowledged the Chapter 7 sentence range. Accordingly, the court committed no
plain error, and this argument is meritless. See Silva, 443 F.3d at 799 (holding that
the sentencing court fulfilled the requirement “when it noted that a sentence above
the guidelines range was necessary to respond to [the defendant’s] numerous
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probation violations”).
c.
By statute, the district court can revoke a term of supervised release and
sentence a defendant to a term of imprisonment instead, but first must consider
several of the § 3553(a) factors. See 18 U.S.C. § 3583(e). Having carefully
reviewed the record and the briefs of the parties, we find no reversible error.
Because the court’s decision was reasonable under § 3553(a), Robaina has not
shown plain error in this regard. See Scott 426 F.3d at 1329 (no requirement that
the court state that it has explicitly considered the § 3553(a) factors).
d.
Titled “[c]onditions of supervised release,” 18 U.S.C. § 3583(d) states, in
part, that “[t]he court shall consider whether the availability of appropriate
substance abuse treatment programs, or an individual’s current or past participation
in such programs, warrants an exception in accordance with United States
Sentencing Commission guidelines from the rule of section 3583(g) when
considering any action against a defendant who fails a drug test.” 18 U.S.C.
§ 3583(d). The rest of that section lists all of the conditions of a sentence of
supervised release that a court must order.
Section 3583(g), which § 3583(d) cross-references, addresses the
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“[m]andatory revocation [of supervised release] for possession of controlled
substance or firearm or for refusal to comply with drug testing.” 18 U.S.C.
§ 3583(g). Under that section, if the defendant, among other things, possesses a
controlled substance or refuses to comply with drug testing while on supervised
release, “the court shall revoke the term of supervised release and require the
defendant to serve a term of imprisonment not to exceed the maximum term of
imprisonment authorized under [§ 3583(e)(3)].” Id.
Having carefully reviewed the record and the briefs of the parties, we find
no reversible error. As discussed above, while the court did not expressly state its
considerations in sentencing Robaina, both sides argued that he was a drug addict,
and Robaina’s counsel argued that he should have substance abuse treatment.
Accordingly, the court was presented with arguments on this subject which it
considered. We have held that “a court may consider a defendant’s rehabilitative
needs when imposing a specific incarcerative term following revocation of
supervised release.” United States v. Brown, 224 F.3d 1237, 1240 (11th Cir.
2000). However, Robaina has not cited, and research has failed to reveal, any
binding precedent requiring that the court state its consideration on the record. See
also United States v. Hammonds, 370 F.3d 1032, 1039 (10th Cir. 2004) (“There is
no indication the court did not recognize it had discretion to order enrollment in a
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substance abuse program.”). Having failed to show that the district court
committed plain error in this respect, Robaina’s final argument it meritless.
Based on the foregoing, Robaina has failed to demonstrate any error on the
district court’s part, and therefore his sentence following the revocation of
supervised release is affirmed.
AFFIRMED
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