United States v. Manuel A. Beyra

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13792
Non-Argument Calendar
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D.C. Docket No. 1:09-tp-20201-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL A. BEYRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 8, 2013)
Before DUBINA, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Manuel Beyra, proceeding pro se, appeals the district court’s
order revoking his supervised release and sentencing him to 33 months’
imprisonment for violating a condition of his supervised release. On appeal, Beyra
argues that the district court lacked jurisdiction to revoke his supervised release
and sentence him to a term of imprisonment because he had an outstanding order
of removal. Beyra also argues that his attorney rendered ineffective assistance of
counsel by failing to argue adequately that Beyra, a citizen of the Cayman Islands,
should be removed from the United States instead of being imprisoned. Finally, he
contends that his 33-month sentence is procedurally and substantively
unreasonable.
I.
Beyra argues that the district court lacked jurisdiction to revoke his
supervised release because he had an outstanding order of removal, and that the
district court should have instead stayed his proceedings and referred his case to
Immigration and Customs Enforcement.
We review de novo our own subject matter jurisdiction. United States v.
Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). However, where a defendant
fails to object to an error before the district court, we review the alleged error 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
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plain and (3) that affects substantial rights. If all three conditions are met, [this]
court may then exercise its discretion to notice a forfeited error, but only if (4) 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)
(internal quotation marks omitted). “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) (internal quotation marks
omitted). “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).
Because Beyra did not preserve his jurisdictional argument, we review this
claim for plain error. Beyra has failed to show that the district court committed
plain error by revoking his supervised release. Factually, this argument is based on
information outside of the record. Moreover, Beyra does not cite to any binding
authority holding that the district court lacked jurisdiction to revoke his supervised
release, or that the district court should have stayed his revocation proceedings and
referred his case to Immigration and Customs Enforcement. As such, Beyra
cannot establish that the district court plainly erred by revoking his supervised
release pursuant to 18 U.S.C. § 3583(e)(3). To the extent that Beyra is challenging
the initial imposition of his supervised release term, we conclude that his argument
is unavailing because he cannot challenge the validity of his original sentence—
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which included five years of supervised release—during his supervised release
revocation proceedings. See United States v. Almand, 992 F.2d 316, 317 (11th Cir.
1993).
II.
Beyra argues that his attorney rendered ineffective assistance of counsel by
failing to explain adequately to the district court that he should be removed from
the United States instead of imprisoned.
“[I]t is settled law in this circuit that a claim of ineffective assistance of
counsel cannot be considered on direct appeal if the claims were not first raised
before the district court and if there has been no opportunity to develop a record of
evidence relevant to the merits of the claim.” United States v. Franklin, 694 F.3d
1, 8 (11th Cir. 2012) (internal quotation marks omitted). “The preferred means for
deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255motion even if the record contains some indication of deficiencies in counsel’s
performance.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010)
(internal quotation marks omitted). However, if the record is sufficiently
developed, we may consider such a claim on direct appeal. Id.The record is not sufficiently developed for us to consider Beyra’s
ineffective assistance of counsel claim. See Franklin, 694 F.3d at 8. Because
Beyra did not raise this challenge before the district court, the record does not
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contain any facts upon which we can determine whether defense counsel was
ineffective. See id.
III.
Beyra argues that his sentence is procedurally and substantively
unreasonable. He contends that the district court procedurally erred by failing to
consider the 28 U.S.C. § 3553(a) factors and by not explaining its reasons for
imposing the 33-month sentence. He also argues that his sentence is substantively
unreasonable because it is harsher than necessary.
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). When reviewing for reasonableness, we generally apply the
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct.
586, 594 (2007). We review de novo whether a district court complied with 18
U.S.C. § 3553(c)(1) by explaining its reasons for imposing a given sentence, even
if the defendant did not object before the district court. United States v. Bonilla,
463 F.3d 1176, 1181 (11th Cir. 2006). However, as noted above, all other
sentencing errors not objected to in the district court are reviewed for plain error.
Castro, 455 F.3d at 1251.
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
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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;
(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). “For sentences
imposed upon revocation of supervised release, the recommended sentencing range
is based on the classification of the conduct that resulted in the revocation and the
criminal history category applicable at the time” of the defendant’s original
sentencing. United States v. Campbell, 473 F.3d 1345, 1348-49 (11th Cir. 2007)
(citing U.S.S.G. §§ 7B1.1, 7B1.4).
In evaluating the reasonableness of a sentence, we follow a two-step process
by first determining whether the sentence is procedurally reasonable, and then
determining if the sentence is substantively reasonable. Gall, 552 U.S. at 51, 128
S. Ct. at 597. 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. 552 U.S. at 51, 128 S. Ct. at 597. One of the
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§ 3553(a) factors that the court must consider at a revocation hearing is the
sentencing range established by the guidelines or policy statements issued by the
Sentencing Commission. See Campbell, 473 F.3d at 1348-49 (declining to address
the reasonableness of a sentence because the district court never explicitly
mentioned during the revocation hearing the guideline range or the criminal
classification of the violation for which it revoked supervised release). However,
given the advisory nature of the Guidelines, it is sufficient if there is “some
indication that the district court was aware of and considered the Guidelines.” Id.
at 1349 (internal quotation marks omitted). As such, the district court need not
discuss or explicitly state on the record each § 3553(a) factor. United States v.
Scott, 426 F.3d 1324, 1330 (11th Cir. 2005).
Section 18 U.S.C. § 3553(c) provides that a district court is required to give
reasons for its sentence and to state, in open court, its reasons for imposing a
particular sentence if the sentence “is of the kind, and within the range
[recommended by the Guidelines] and that range exceeds 24 months.” 18 U.S.C.
§ 3553(c)(1). However, “when a judge decides simply to apply the Guidelines to
a particular case, doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision upon the
Commission’s own reasoning that the Guidelines sentence is a proper sentence.”
Rita v. United States, 551 U.S. 338, 356-57, 127 S. Ct. 2456, 2468, (2007). The
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appropriateness of how much to write and what to say depends on the
circumstances of the case, and “[t]he law leaves much, in this respect, to the
judge’s own professional judgment.” 551 U.S. at 356, 127 S. Ct. at 2468.
When review for substantive reasonableness is appropriate, we examine the
totality of the circumstances and ask “whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). In order to vacate a sentence, we must have “the definite and
firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
Ordinarily, we expect, but do not presume, a sentence within the guidelines range
to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
“[T]he party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” Id.While the government argues that Beyra’s procedural reasonableness
arguments should be reviewed for plain error, we will only apply plain error
review to Beyra’s argument that the district court failed to consider the 18 U.S.C.
§ 3553(a) factors. As to Beyra’s argument that the district court failed to explain
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its reasons for imposing the 33-month sentence, we will review this de novo. See
Bonilla, 463 F.3d at 1181. We review Beyra’s substantive reasonableness
argument for abuse of discretion. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
With respect to procedural reasonableness and Beyra’s argument that the
district court did not consider the § 3553(a) factors, the district court referenced the
applicable advisory guideline range—by stating that Beyra’s criminal history
category of II yielded an advisory guideline range of 27 to 33 months’
imprisonment. See Campbell, 473 F.3d at 1348 (explaining that a district court
must reference the advisory guideline range during a revocation hearing). The
district court also stated that the “guideline range adequately reflects the factors in
3553,” and that it had considered both parties’ statements, including the
government’s statement that focused on Beyra’s past criminal history and
recidivism, and the violation report. Because this was sufficient, Beyra cannot
show that the district court committed plain error. See Scott, 426 F.3d at 1330.
Beyra has also failed to show that the district court erred by not explaining
its reasons for imposing a 33-month within Guidelines sentence. This was a
supervised release revocation hearing, in which Beyra admitted he violated a
mandatory condition of his supervised release. As such, the circumstances did not
“necessarily require [the district court to provide a] lengthy explanation” of its
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reasons for imposing a within-guidelines sentence. See Rita, 551 U.S. at 356-57,
127 S. Ct. at 2468.
Turning to Beyra’s argument that his sentence is substantively unreasonable,
Beyra has not demonstrated that the district court abused its discretion by imposing
a 33-month sentence. Although we do not presume that a within-guidelines
sentence is reasonable, we expect Beyra’s 33-month sentence to be reasonable
given that it was within the advisory guideline range of 27-33 months’
imprisonment. See Talley, 431 F.3d at 788. The district court also stated that it
believed the guideline range adequately reflected the § 3553(a) factors. Moreover,
the record reflects that the district court considered Beyra’s history and
characteristics because it stated that it had considered the parties’ statements,
including the government’s description of Beyra’s criminal background, and
Beyra’s description of his immigration history and prior arrests and convictions.
Beyra’s argument that the district court erred by not giving him a sentence
with credit for time-served is also without merit, as the Bureau of Prisons, and not
the district court initially calculates any credit for time served. See United States v.
Wilson, 503 U.S. 329, 332-33, 337, 112 S. Ct. 1351, 1353-54, 1356 (1992)
(holding that the Bureau of Prisons and not the district court at the sentencing
hearing, calculates and administers a defendant’s credit for time-served). To the
extent that Beyra argues that the district court should have ordered him removed
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from the United States, the district court lacked the authority to do so. See United
States v. Mejia, 154 F.3d 1297, 1298 (11th Cir. 1998) (holding that the district
court lacks authority to order removal from the United States as a special condition
of supervised release).
For the above stated reasons, we affirm the district court’s order revoking
Beyra’s supervised release and Beyra’s sentence.
AFFIRMED.
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