United States v. Richard Anthony Siler ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15483
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20116-DPG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ANTHONY SILER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 28, 2016)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
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Following resentencing, Richard Siler appeals his 130-month total sentence,
imposed 15 months above the top of his advisory guideline range, after a jury
found him guilty of use of unauthorized access device, in violation of 18 U.S.C.
§ 1029(a)(2) (Count 1), possession of 15 or more unauthorized access devices, in
violation of 18 U.S.C. § 1029(a)(3) (Count 6), and three counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A (Counts 3, 4, and 7). On appeal,
Siler argues that his sentence is procedurally unreasonable because the district
court based the upward variance upon a clearly erroneous fact. Specifically, he
contends that the court’s statement that the offense involved “thousands of victims
and their stolen identifications” is clearly erroneous because he did not steal any
personal identification information.
We normally review claims regarding the procedural unreasonableness of a
sentence for plain error when no objection was raised at sentencing. See United
States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). In United States v.
Jones, however, we announced that district courts must “elicit fully articulated
objections, following imposition of sentence, to the court’s ultimate findings of
fact and conclusions of law,” as well as to “the manner in which the sentence is
pronounced.” 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds
sub nom. United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). A
district court’s concluding question as to whether there is “anything else” is
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insufficient and does not comply with the objection-elicitation requirement.
United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). “Where the
district court has not elicited fully articulated objections following the imposition
of sentence, this [C]ourt will vacate the sentence and remand for further sentencing
in order to give the parties an opportunity to raise and explain their objections.”
Jones, 899 F.2d at 1103. Remand may be unnecessary, however, if the record on
appeal is sufficient to enable meaningful appellate review. United States v. Cruz,
946 F.2d 122, 124 n.1 (11th Cir. 1991). In such a case, this Court will review for
preserved error. See United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir.
2006) (reviewing a defendant’s claim de novo, rather than for plain error, because
the Jones violation did not allow him to object in the district court).
As an initial matter, we hold that the district court violated Jones when it
concluded Siler’s sentencing proceeding by asking, “Anything else for today?”
However, as discussed below, the record is sufficient to allow meaningful appellate
review of the single issue Siler raises on appeal. Thus, despite the Jones violation,
the merits of Siler’s procedural unreasonableness claim will be addressed.
Because the district court violated Jones, Siler’s claim will be reviewed as if
the objection were preserved, under the abuse-of-discretion standard. See Gall v.
United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007)
(holding that appellate courts must review all sentences under a deferential abuse-
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of-discretion standard). The district court’s factual findings are reviewed for clear
error. United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir. 2012). A finding
of fact is clearly erroneous when, after reviewing all of the evidence, this Court is
left with a definite and firm conviction that a mistake has been committed. United
States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A factual finding cannot
be clearly erroneous, however, when the factfinder is choosing between two
permissible views of the evidence. United States v. Saingerard, 621 F.3d 1341,
1343 (11th Cir. 2010). Even if we find that the district court considered an
erroneous factor in sentencing, remand is not automatically required; rather,
remand is required only if the sentence was imposed as a result of the error.
Williams v. United States, 503 U.S. 193, 202-03, 112 S. C. 1112, 1120, 117 L. Ed.
2d 341 (1992) (emphasis in original).
Siler does not argue that his sentence is substantively unreasonable.
Moreover, he does not demonstrate that his sentence is procedurally unreasonable
in light of the record and the 18 U.S.C. § 3553(a) factors. In formulating the
appropriate sentence, the court acknowledged the correctly calculated guideline
range and considered arguments from both parties as well as Siler’s allocution. In
addition, the court articulated specific § 3553(a) factors in justifying the upward
variance. The court’s statement concerning “victims and their stolen
identifications” injected no error into the decision-making process. The language
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may be subject to multiple interpretations and is not clearly erroneous considering
the offenses for which Siler was convicted. In addition, the record demonstrates
that the court did not assign the comment in question great weight. Accordingly,
we affirm the sentence as reasonable.
AFFIRMED.
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