             Case: 15-15141    Date Filed: 05/09/2016   Page: 1 of 7


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-15141
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:13-tp-20079-JAL-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ARIEL MILIAN,

                                                            Defendant-Appellant.

                         ________________________

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

                                 (May 9, 2016)

Before TJFOLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Ariel Milian appeals his 11-month sentence imposed after the district court

revoked his supervised release for failing to report an arrest to his probation

officer. Milian was originally charged with three violations of his supervised
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release conditions: (1) committing a violation of state law; (2) failure to report an

arrest; and (3) leaving the district without permission. However, the government

agreed to dismiss violations one and three in exchange for Milian’s admission that

he committed violation two. During his sentencing, the district court noted that

Milian had left the district without permission and that he had committed the

violation once before, referring to a previous violation of leaving the district

without permission.     On appeal, Milian argues that: (1) the district court

procedurally erred when it considered facts that he had not admitted and that no

evidence had been offered on at sentencing; and (2) his sentence was substantively

unreasonable. After thorough review, we affirm.

      We review a sentence imposed upon the revocation of supervised release for

reasonableness, United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008),

which “merely asks whether the trial court abused its discretion,” United States v.

Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551

U.S. 338, 351 (2007)). When sentencing objections are raised for the first time on

appeal, we consider them under the plain error doctrine. United States v. Garrison,

133 F.3d 831, 848 (11th Cir. 1998). To establish plain error, a defendant must

show: (1) error (2) that is plain and (3) affects substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three conditions are met,




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then we may exercise our discretion to correct an error if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

      “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).           Thus, “where the explicit

language of a statute or rule does not specifically resolve an issue, there can be no

plain error where there is no precedent from the Supreme Court or this Court

directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th

Cir. 2003). A defendant fails to meet his burden of showing that an error affected

his substantial rights when “the effect of an error on the result in the district court

is uncertain or indeterminate.” Rodriguez, 398 F.3d at 1301. To preserve an

objection for appeal, the defendant “must raise that point in such clear and simple

language” that it “inform[s] the district court of the legal basis for the objection.”

United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quotations omitted).

      In reviewing sentences for reasonableness, we typically perform two steps.

Pugh, 515 F.3d at 1190. First, we “‘ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.


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38, 51 (2007)).1 The district court has the discretion “to determine the kinds and

form of information it will consider” to hand down the appropriate sentence.

United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir. 1989). However, “absent

a stipulation or agreement between the parties, an attorney’s factual assertions at a

sentencing hearing do not constitute evidence that a district court can rely on.”

United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013).

       If a defendant violates a condition of supervised release, a court may, after

considering certain factors set forth in § 3553(a), continue supervised release or

revoke the sentence of supervised release and resentence the defendant. 18 U.S.C.

§ 3583(e) (cross-referencing 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 original

sentencing. United States v. Campbell, 473 F.3d at 1348-49 (11th Cir. 2007)

(citing U.S.S.G. §§ 7B1.1, 7B1.4). A grade C violation occurs when the conduct

giving rise to the violation “constitut[es] (A) a federal, state, or local offense


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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punishable by a term of imprisonment of one year or less; or (B) a violation of any

other condition of supervision.” U.S.S.G. § 7B1.1(a)(3). The guideline range for a

grade C violation and a criminal history category of IV is 6 to 12 months’

imprisonment. Id. § 7B1.4(a). When the underlying felony is class C, the term of

imprisonment imposed after revocation of supervised release shall not exceed two

years. 18 U.S.C. § 3583(e)(3). A violation of 18 U.S.C. § 659 is punishable by a

maximum of 10 years’ imprisonment, and thus, is a class C felony. See id. § 659;

id. § 3559 (stating that an offense with a maximum term of imprisonment “less

than twenty-five years but ten or more years” is a class C felony).

      If we conclude that the district court did not procedurally err, we consider

the “‘substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard,’” based on the “‘totality of the circumstances.’” Pugh, 515

F.3d at 1190 (quoting Gall, 552 U .S. at 51). “[W]e will not second guess the

weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)] factor ... as

long as the sentence ultimately imposed is reasonable in light of all the

circumstances presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir.

2010) (quotation, alteration and emphasis omitted). We may conclude there was

an abuse of discretion if the district court (1) does not account for a factor that

should have received significant weight, (2) gives significant weight to an

irrelevant or improper factor, or (3) commits a clear error of judgment in balancing


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the sentencing factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)

(en banc). The district court’s unjustified reliance on any one § 3553(a) factor may

be a symptom of an unreasonable sentence. United States v. Crisp, 454 F.3d 1285,

1292 (11th Cir. 2006). A sentencing court need not discuss each § 3553(a) factor

individually. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

      While we do not automatically presume a sentence falling within the

guideline range to be reasonable, we ordinarily expect that sentence to be

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

sentence imposed well below the statutory maximum penalty is another indicator

of reasonableness. Gonzalez, 550 F.3d at 1324. The party challenging the sentence

bears the burden to show it is unreasonable. United States v. Tome, 611 F.3d

1371, 1378 (11th Cir. 2010).

      As an initial matter, we review Milian’s procedural unreasonableness

argument for plain error -- since he failed to inform the district court of the legal

basis that he now argues -- and we can find no plain error here. Although the

district court erred in noting that Milian was outside the district and had committed

the violation once before (even though those facts were not supported by evidence

or admission), the error did not affect Milian’s substantial rights. The district court

only mentioned in passing that Milian was outside of the district and had

committed the violation before, and from the district court’s full statements, it is


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evident that it based its sentencing decision on Milian’s criminal history, his

multiple supervised release violations, and the seriousness of his failing to report

an arrest to his probation officer. Indeed, after reciting Milian’s lengthy criminal

history, the district court stated that he continuously displayed no respect for the

law, and it stressed the seriousness of his failing to report an arrest to his probation

officer. The record also makes clear that the district court knew that Milian’s

instant violation was for failing to report an arrest, and was distinct from any

violation for being outside the district. At the very most, the effect of the error on

the result in the district court was “uncertain or indeterminate,” Rodriguez, 398

F.3d at 1301, which means that the error did not affect Milian’s substantial rights.

      Moreover, Milian’s sentence, toward the high end of the guideline range,

was substantively reasonable in light of the record and the § 3553(a) factors.

Milian had a significant criminal history spanning more than 10 years -- including

the possession of weapons, theft of motor vehicles, and violence toward law

enforcement officers -- and had previously violated his conditions of supervised

release. In addition, Milian’s sentence was below the statutory maximum sentence

and was within the applicable guideline range, further indicating its

reasonableness.

      AFFIRMED.




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