             Case: 13-12857    Date Filed: 02/06/2014   Page: 1 of 10


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-12857
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:02-cr-20334-KMM-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ROBERTO DELGADO,

                                                             Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (February 6, 2014)

Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:

      Roberto Delgado appeals the revocation of his supervised release and his

sentence of 23 months of imprisonment. See 18 U.S.C. § 3583(e)(3). Delgado
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argues that the evidence was insufficient to prove he committed a new offense of

burglary and that the magistrate judge clearly erred by crediting the victim’s

testimony, but Delgado failed to object to the decision of the magistrate judge and

waived the right to appellate review of the revocation of his supervised release.

Delgado also argues that his sentence is procedurally and substantively

unreasonable because he was not “giv[en] a single reason for the sentence,” but the

district court sufficiently explained its chosen sentence. We affirm.

                                I. BACKGROUND

      In September 2002, Delgado was convicted of conspiring to possess with

intent to distribute five grams or more of crack cocaine and a detectable amount of

cocaine hydrochloride. 21 U.S.C. §§ 846, 841(b)(1)(B), (C). The district court

sentenced Delgado to 120 months of imprisonment, followed by 5 years of

supervised release. We affirmed Delgado’s sentence. United States v. Delgado,

No. 02-15091 (11th Cir. June 3, 2003).

      After Delgado completed his sentence of imprisonment and was on

supervised release, his probation officer filed a petition to revoke. The petition

charged Delgado for being arrested for battery of his former girlfriend, Olga

Rosales, Fla. Stat. § 784.03, and resisting arrest without violence, id. § 843.02.

Delgado admitted that he had violated a condition of his supervised release by

resisting arrest, see id., and the district court sentenced him to 13 months of


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imprisonment followed by 47 months of supervised release. Delgado appealed and

argued that his sentence of imprisonment was unreasonable, but we affirmed.

United States v. Delgado, No. 12-11131 (11th Cir. Sept. 7, 2012).

      After Delgado was released on his second term of supervised release, he was

arrested and charged in a Florida court for aggravated battery of Rosales, Fla. Stat.

§ 784.045, and burglary of an occupied vehicle, id, § 810.02(3)(d). A probation

officer filed a petition to revoke that described the history of Delgado’s case and

his new offenses. The petition provided that Delgado had denied any wrongdoing

and had identified his new girlfriend as an eyewitness to the incident, but the

girlfriend admitted to an investigating officer that she had not been with Delgado at

the time of the incident. The petition also provided that Delgado’s offenses were

Grade B violations for which he faced, with a criminal history of V, an advisory

guideline range between 18 and 24 months of imprisonment, see United States

Sentencing Guidelines Manual § 7B1.4(a), and a maximum sentence of five years

of imprisonment, see 18 U.S.C. § 3583(b)(1). The district court referred Delgado’s

case to a magistrate judge.

      During an evidentiary hearing on the motion to revoke, Rosales and Delgado

provided different accounts of the incident. Rosales testified that Delgado

appeared at her workplace and followed her to her boyfriend’s vehicle; he held

open her passenger’s side door and leaned inside the vehicle to swat at her and her


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boyfriend; he entered the back of the vehicle ostensibly to retrieve his car keys

from the floorboard and took a walking cane that was lying on the back seat; he

left the back door ajar and walked away; and he threw the cane at Rosales and

struck her on the hip after she exited the vehicle to close the back door. Rosales

identified a photograph taken by a police officer shortly after the incident that

showed a bruise on her hip. Delgado testified that he received a telephone call

from Rosales asking him to meet her after work; he approached Rosales’s

boyfriend to ask him to end Rosales’s telephone calls; he leaned into the vehicle to

finish his conversation with Rosales’s boyfriend; he used a cane lying on the back

seat to retrieve his keys from the back floorboard; and he “dropped the cane” on

the ground next to the vehicle.

      The magistrate judge credited Rosales’s testimony and found that Delgado’s

version of events “just [didn’t] square.” “[B]ased upon [Rosales’s] testimony,” the

magistrate judge ruled that Delgado had not committed aggravated battery, a

felony, see Fla. Stat. § 784.045, but he had committed the lesser-included offense

of battery, a misdemeanor, see id. § 784.03(1)(a)(1), (b). The magistrate judge

asked whether he was “wrong in any way, in terms of the aggravated

battery/battery determination,” and Delgado “agree[d] with the Court’s legal

analysis, preserving the factual objection.” Delgado contested the burglary charge,

but the magistrate judge found that Delgado committed burglary of an occupied


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vehicle when he entered the back of the vehicle occupied by Rosales and her

boyfriend and “grabbed the cane in order to use the cane or take the cane.” The

magistrate judge said that he would “issue a docket order that incorporate[d]” his

findings and told Delgado that he would be “give[n] . . . the normal objection

period” to file “any objections” he had to the order.

       The magistrate judge filed a written report containing detailed findings that

Delgado had violated his supervised release by committing the new offenses of

battery and burglary of an occupied conveyance. The report stated that,

“[p]ursuant to Local Magistrate Rule 4(b), the parties ha[d] fourteen (14) days

from the date of this Report and Recommendation to serve and file written

objections, if any, with the . . . United States District Judge.” The report also

provided that the “[f]ailure to timely file objections shall bar the parties from a de

novo determination by the District Judge of an issue covered in the report and bar

the parties from attacking on appeal the factual findings contained herein.”

Delgado did not file an objection, and “[a]fter review of the Report and

Recommendation, review of the record, and having received no objections thereto,

. . . the Magistrate Judges Report and Recommendation [was] . . . Adopted” by the

district court.

       At Delgado’s sentencing hearing, the district court adjudicated Delgado

guilty of violating the conditions of his supervised release. The district court


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determined that Delgado faced an advisory guidelines range between 18 and 23

months of imprisonment, and defense counsel and the district court “agree[d]” that

Delgado “would have to be taken off probation” if he received a sentence of “23

months.” Delgado declined to make a statement, after which the government

stated that “a guideline sentence [would be] sufficient.” The district court

“carefully considered the statements of all parties and the information contained in

the violation report”; “determined that a sentence within the guideline range [was]

appropriate”; and sentenced Delgado to 23 months of imprisonment. The written

judgment for revocation provided that the district court had “carefully considered

the statements of all parties and the information contained in the violation report

and the Magistrate Judge’s Report and Recommendation.”

                           STANDARDS OF REVIEW

       “Arguments that are waived before the district court may not be reviewed

on appeal.” United States v. Garcia-Sandobal, 703 F.3d 1278, 1282 (11th Cir.

2013). We review a sentence imposed following the revocation of supervised

release for reasonableness, United States v. Sweeting, 437 F.3d 1105, 1106–07

(11th Cir. 2006), which “merely asks whether the trial court abused its discretion,”

Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007).

                                   DISCUSSION




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      Delgado contests the decision to revoke his supervised release and the

penalty that he received. Delgado challenges the findings of the magistrate judge

that he committed burglary of an occupied conveyance, see Fla. Stat.

§ 810.02(3)(d), and that Rosales’s narrative of the burglary and the battery were

more credible. Delgado also argues that his sentence is procedurally and

substantively unreasonable. We consider each argument in turn.

A. Delgado Waived His Right to Challenge the Decision to Revoke his Supervised
                                  Release.

      A defendant waives his right to challenge a ruling by relinquishing

intentionally an objection or abandoning an opportunity to object. See United

States v. Lewis, 492 F.3d 1219, 1221–22 (11th Cir. 2007). This rule of waiver

applies to dispositive decisions of a magistrate judge. Fed. R. Crim. P. 59(b)(2).

Rule 59(b)(2) provides that a defendant has 14 days to object to the report and

recommendation of the magistrate judge. Id. If the defendant fails to file a written

objection, he “waives [the] right to [a] review” of that decision. Id.

      Delgado waived his right to appellate review of the revocation of his

supervised release. Delgado argues that the magistrate judge misapplied the

burglary statute in the report and recommendation and clearly erred by crediting

Rosales’s testimony, but Delgado waived those arguments by failing to object to

the report. See id.; Garcia-Sandobal, 703 F.3d at 1283. Delgado argues that his

arguments are preserved for this Court’s review because he objected during his
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evidentiary hearing and because the “district court conducted an independent

review of the record,” but Rule 59(b) does not contain any exceptions to the

requirement to file a written objection to the report and recommendation. See Fed.

R. Crim. P. 59(b). Delgado cites decisions in support of his preservation argument,

but those decisions predate the adoption of Rule 59. As explained in the advisory

committee notes to the Rule, the “waiver provision is intended to establish the

requirements for objecting in a district court in order to preserve appellate review

of magistrate judges’ decisions.” Id. 2005 advisory committee notes.

                       B. Delgado’s Sentence is Reasonable.

      Delgado argues that his sentence is unreasonable procedurally and

substantively. Both arguments fail. We address each in turn.

      Delgado’s sentence is procedurally reasonable. “[T]he district court [is not

required] to state on the record that it has explicitly considered each of the

[sentencing] factors or to discuss each of [those] factors,” United States v. Scott,

426 F.3d 1324, 1329 (11th Cir. 2005), “so long as the record reflects the court’s

consideration of many of those factors,” United States v. Ghertler, 605 F.3d 1256,

1262 (11th Cir. 2010). See United States v. Dorman, 488 F.3d 936, 944 (11th Cir.

2007). The district court was familiar with Delgado’s case from having sentenced

him for his drug crimes and following the first revocation of his supervised release.

The district court “carefully considered” the arguments of the parties, the petition


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to revoke that described Delgado’s procedural history and his new offenses, and

the findings in the report and recommendation, and “determined that a sentence

within the guideline range [was] appropriate.” Those statements reveal that the

district court considered Delgado’s history and characteristics, see 18 U.S.C.

§ 3553(a)(1); his repeated offenses, see id.; the need for the sentence to deter

Delgado from committing future similar crimes and to protect Rosales and the

public at large, see id. § 3553(a)(2)(B), (C); and the kinds of sentences Delgado

faced and the advisory sentencing range for Delgado’s violations, see id.

§ 3553(a)(3). See Dorman, 488 F.3d at 944; Scott, 426 F.3d at 1329–30. “The

length and amount of detail describing the district court’s reasoning depends on the

circumstances,” Ghertler, 605 F.3d at 1262, and there was no need for the district

court to elaborate on its sentence when Delgado did not express an opinion on the

issue. Delgado likens his situation to that in United States v. Veteto, 920 F.2d 823

(11th Cir. 1991), where we held insufficient a cursory explanation that a sentence

“seem[ed] right,” id. at 824, 826–27, but at Delgado’s sentencing hearing the

district court stated that it had considered several sources of information to

determine an appropriate sentence. We conclude that the district court sufficiently

explained the reasons for its chosen sentence.

      Delgado’s sentence of 23 months of imprisonment is also substantively

reasonable. Delgado twice violated his supervised release, and a sentence of 13


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months of imprisonment following his first violation of his supervised release

failed to deter him from further misconduct. The district court reasonably

determined that imposing a sentence at the high end of Delgado’s guidelines range

was necessary to achieve the statutory purposes of sentencing. See 18 U.S.C.

§ 3553(a). We “ordinarily . . . expect a sentence within the Guidelines range to be

reasonable,” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and

Delgado provides no reason for us to conclude otherwise.

      We AFFIRM the revocation of Delgado’s supervised release.




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