                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-10554                ELEVENTH CIRCUIT
                         Non-Argument Calendar              AUGUST 11, 2010
                       ________________________               JOHN LEY
                                                               CLERK
                 D.C. Docket No. 4:05-cr-10005-KMM-2

UNITED STATES OF AMERICA,
lllllllllllllllllllll

                                                          Plaintiff - Appellee,


                                  versus


YUDIESKY MACHADO-GONZALEZ,


                                                       Defendant - Appellant.

                      ________________________

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

                            (August 11, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Yudiesky Machado-Gonzalez appeals his 10-month sentence, which was

imposed after the revocation of his supervised release. He argues that the district

court committed procedural error by failing to consider the 18 U.S.C. § 3553(a)

sentencing factors when imposing his sentence. For the reasons set forth below, we

affirm.

                                         I.

      In 2005, Machado-Gonzalez pled guilty to conspiracy to commit alien

smuggling, in violation of 18 U.S.C. § 371. Initially, he was permitted to remain

free on bond until sentencing, but his bond was revoked when he was arrested, on

June 22, 2005, for attempting to smuggle 33 Cuban immigrants into the United

States. Machado-Gonzalez was sentenced to 12 months’ imprisonment, followed

by 1 year of supervised release, for the alien smuggling offense.

      Based on his bond violation in the alien smuggling case, Machado-Gonzalez

was charged in a separate indictment with contempt, in violation of 18 U.S.C.

§ 401(3). He pled guilty to this offense and was sentenced to 24 months’

imprisonment, followed by 3 years of supervised release. The court ordered that

this sentence be served consecutively with Machado-Gonzalez’s 12-month

sentence in the alien smuggling case.



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      Machado-Gonzalez began serving his terms of supervised release on

November 19, 2007. In March 2008, Machado-Gonzalez’s probation officer

petitioned the court to revoke Machado-Gonzalez’s supervised release in the

contempt case, because, on February 15, 2008, Machado-Gonzalez traveled five

nautical miles southwest of Cay Sal Bank, Bahamas without seeking the

permission of his probation officer or the court. The district court revoked

Machado-Gonzalez’s supervised release and sentenced him to 60 months’

imprisonment with no supervised release to follow.

      On February 27, 2009, Machado-Gonzalez was charged with failing to

heave to a law enforcement officer’s vessel, in violation of Title 18 U.S.C.

§§ 2237(a)(1) and 2. This charge arose from the February 15, 2008, incident that

resulted in the revocation of supervised release in Machado-Gonzalez’s contempt

case. Machado-Gonzalez pled guilty to failure to heave and the district court

sentenced him to 27 months’ imprisonment, to run concurrently with the 60-month

sentence he was serving in the contempt case.

      Based on Machado-Gonzalez’s conviction in the failure to heave case, the

probation office filed a petition to revoke the one-year term of supervised release

imposed in the 2005 alien smuggling case. At Machado-Gonzalez’s revocation

hearing, the court noted that Machado-Gonzalez was subject to a guideline

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imprisonment range of four to ten months. Machado-Gonzalez noted that he still

had to serve a significant portion of his 60-month contempt sentence and asked the

court to run any additional term of imprisonment concurrently with the sentence

he was already serving. He also asked the court to impose an additional term of

supervised release rather than ordering additional incarceration. The court stated

that it had “carefully considered the statements of all parties and the information

contained in the violation report” and sentenced Machado-Gonzalez to ten

months’ imprisonment, to run consecutively to the sentences imposed in the

contempt and failure to heave cases. Machado-Gonzalez objected to “the

reasonableness of th[e] sentence in light of the other sentences which [he was]

already serving.”

                                          II.

      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). However, where a defendant fails to object to a sentencing error

before the district court, we review 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 plain and (3) that affects substantial

rights. If all three conditions are met, [we] may then exercise [our] discretion to

                                           4
notice a forfeited error, but only if . . . 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). “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). “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) (quotations omitted).

       “The purpose of the plain error rule is to enforce the requirement that parties

object to errors at trial in a timely manner so as to provide the trial judge an

opportunity to avoid or correct any error, and thus avoid the costs of reversal.”

United States v. Sorondo, 845 F.2d 945, 948-49 (11th Cir. 1988). Although we

have not yet done so, the First, Third, Sixth, Ninth, and Tenth Circuits have

applied plain error review to procedural reasonableness claims raised for the first

time on appeal. See, e.g., United States v. Gilman, 478 F.3d 440, 447 (1st Cir.

2007) (applying plain error to defendant’s argument, raised for the first time on

appeal, that the district court failed to adequately explain the reasoning behind its

sentence); United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006) (reviewing

for plain error the defendant’s unpreserved argument “that the District Court failed

to give a sufficient statement of reasons under 18 U.S.C. § 3553(c) for its

                                             5
imposition of sentence”); United States v. Bailey, 488 F.3d 363, 367-69 (6th Cir.

2007) (applying plain error review to a defendant’s procedural reasonableness

challenge, raised for the first time on appeal, but traditional reasonableness review

to a substantive reasonableness challenge made for the first time on appeal);

United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.

2006) (applying plain error review where the defendant “did not object [at

sentencing] on the ground that the district court did not sufficiently address and

apply the factors listed in § 3553(a)”); United States v. Mancera-Perez, 505 F.3d

1054, 1058 (11th Cir. 2007) (holding that plain error review applies to a

defendant’s challenge of the method by which his sentence was determined, but

not to a defendant’s claim that his sentence is unreasonably long).

      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

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
(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).

      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. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). The district court need not discuss or explicitly state on

the record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005). Instead, an acknowledgment by the district court that it has

considered the defendant’s arguments and the § 3553(a) factors will suffice. Id. at

1329-30; see United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007)

(holding that the defendant’s sentence was procedurally reasonable, even though

the district court failed to expressly state that it had considered the § 3553(a)

factors, because the record showed that the court considered the defendant’s

objections, motion for a departure, and the presentence investigation report

(“PSI”), all of which implicated several of the § 3553(a) factors).

                                          III.

      At the conclusion of his sentencing proceeding, Machado-Gonzalez

objected that his sentence was substantively unreasonable “in light of the other


                                           7
sentences which [he was] already serving.” He failed to object to the procedure

the district court used in imposing the sentence, and he did not mention the

§ 3553(a) factors or the court’s failure to consider them. Thus,

Machado-Gonzalez failed to preserve his objection to the procedural

reasonableness of his sentence. In light of the purpose of the plain error rule and

the substantial number of persuasive cases applying plain error review to

unpreserved claims of procedural error, we review Machado-Gonzalez’s

unpreserved procedural reasonableness argument under the plain error standard of

review. See Sorondo, 845 F.2d at 948-49; Gilman, 478 F.3d at 447; Parker, 462

F.3d at 278; Bailey, 488 F.3d at 367-69.

      Machado-Gonzalez satisfies the first two elements of the plain error

standard. Although the district court stated that its decision to revoke

Machado-Gonzalez’s supervised release was based on its consideration of the

parties’ arguments and the information contained in the violation report, the

violation report is not included in the record and the government admits that

Machado-Gonzalez’s sentencing arguments were unrelated to the § 3553(a)

factors. Thus, the record fails to show that the district court considered the

§ 3553(a) factors by reviewing the violation report and the parties’ arguments. Cf.

Dorman, 488 F.3d at 944 (district court’s consideration of PSI and defendant’s

                                           8
objections and motion for departure indicated consideration of § 3553(a) factors,

because PSI, objections, and motion all discussed § 3553(a) factors). The district

court also never explicitly stated that it had considered the § 3553(a) factors or

offered any explanation for the sentence it imposed. Because current case law

requires the court to consider the § 3553(a) factors when revoking supervised

release and imposing a term of imprisonment, the district court committed error

that was plain in failing to consider these factors. See Eckhardt, 466 F.3d at 948;

18 U.S.C. § 3583(e); Gall, 552 U.S. at 51, 128 S.Ct. at 597.

      However, Machado-Gonzalez fails to meet the third element of the plain

error standard, because he fails to allege or present any evidence indicating that he

would have received a different sentence if the district court had considered the

§ 3553(a) factors. See Turner, 474 F.3d at 1276; Henderson, 409 F.3d at 1308.

Machado-Gonzalez does not explain which, if any, § 3553(a) sentencing factor

would have compelled the court to impose a lesser sentence, and he cites nothing

in the sentencing transcript indicating that the court would have imposed a lesser

sentence if it had considered the § 3553(a) sentencing factors. Under the plain

error standard of review, the burden of showing a violation of substantial rights

rests on the defendant. See Turner, 474 F.3d at 1276. Here, Machado-Gonzalez

has failed to satisfy this burden. Accordingly, we affirm his 10-month sentence.

                                          9
AFFIRMED.




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