           Case: 18-13270   Date Filed: 08/07/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13270
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:15-cr-00186-PGB-KRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RAFAEL OMAR SEPULVEDA-SANTIAGO,

                                                         Defendant-Appellant.

                       ________________________

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

                             (August 7, 2019)



Before TJOFLAT, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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      Rafael Sepulveda-Santiago (Sepulveda) appeals his 30-month,

above-guideline sentence, imposed following the revocation of his supervised

release. Sepulveda argues the district court imposed a procedurally unreasonable

sentence when it considered the factors provided in 18 U.S.C. § 3553(a)(2)(A),

which he claims was impermissible under 18 U.S.C. § 3583, which governs the

revocation of supervised release. He further argues his sentence was substantively

unreasonable because the district court failed to conduct a breach-of-trust analysis

and committed an error in judgment in weighing the relevant sentencing factors.

After review, we affirm.

                                   I. DISCUSSION

      A. Procedural Reasonableness

      As to Sepulveda’s claim the district court imposed a procedurally

unreasonable sentence when it impermissibly considered § 3553(a)(2)(A) in the

context of his revocation proceeding, he acknowledges he did not raise this

objection below, and we therefore review the procedural reasonableness of his

sentence only for plain error. See United States v. Vandergrift, 754 F.3d 1303,

1307 (11th Cir. 2014) (“[B]ecause [the defendant] did not object to the procedural

reasonableness at the time of his sentencing, we review for plain error.”). The

plain error standard requires the defendant to show (1) an error; (2) that is plain;

(3) that affects substantial rights; and (4) that seriously affects the fairness,


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integrity, or public reputation of judicial proceedings. United States v. Massey,

443 F.3d 814, 818 (11th Cir. 2006).

      We previously have concluded that a district court’s consideration of

§ 3553(a)(2)(A) in the supervised-release revocation context was not plain error.

See 754 F.3d at 1308-09. Specifically, we concluded in Vandergrift that “[t]he text

of § 3583(e) does not . . . explicitly forbid a district court from considering

§ 3553(a)(2)(A).” Id. We also noted the Supreme Court had not addressed

whether it was an error to consider § 3553(a)(2)(A) in the revocation context, other

circuits were split on the issue, and we had not addressed the issue in a published

opinion. Id. at 1308. The same analysis applies here, as there has been no

intervening decision from this Court or the Supreme Court definitively addressing

this issue. It remains the case that § 3583(e) does not explicitly forbid a district

court’s consideration of the factors provided in § 3553(a)(2)(A), and, given the

lack of precedent addressing the issue, any alleged error could not have been plain.

      B. Substantive Reasonableness

      After determining that a district court’s sentence was procedurally

reasonable, we review the substantive reasonableness of the sentence under the

abuse of discretion standard and the totality of the circumstances. See Gall v.

United States, 552 U.S. 38, 51 (2007). As the party challenging the substantive

reasonableness of his sentence, Sepulveda bears the burden of establishing that the


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sentence is unreasonable in light of the record, the § 3553(a) factors, and the

substantial deference afforded sentencing courts. United States v. Rosales-Bruno,

789 F.3d 1249, 1256 (11th Cir. 2015). He has failed to meet this burden.

      Sepulveda argues the district court did not conduct a proper breach-of-trust

analysis, instead focusing too heavily on the leniency of his original sentence and

the inflammatory facts of an earlier revocation petition, but the record suggests

otherwise. When viewed in proper context, the district court’s comments are

consistent with a breach-of-trust analysis. See U.S.S.G. Ch. 7, Pt. A, intro. cmt.

3(b) (explaining that “at revocation the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the

seriousness of the underlying violation and the criminal history of the violator”).

While the court certainly reviewed Sepulveda’s history—including the facts

supporting three prior petitions for revocation of his supervised release—it

ultimately did so in support of its conclusion that “supervised release is not

something [Sepulveda] take[s] seriously.”

      To the extent Sepulveda argues the district court otherwise improperly

weighed the § 3553(a) factors in fashioning its sentence, the record, again, belies

his assertion. The court had discretion to decide the weight it gave to different

factors, and there was ample evidence supporting explicitly permissible factors

under § 3583(e), such as the substantial need to deter him from further violations


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and to protect the public. See Rosales-Bruno, 789 F.3d at 1254; 18 U.S.C.

§ 3583(e). In light of the multiple opportunities Sepulveda had been given to

reform himself, and his consistent failure to comply with the terms of his

supervised release, the court reasonably concluded that “[t]o impose a sentence

within the guidelines would defeat the purposes of deterrence.”

      Additionally, Sepulveda’s sentence was well below the statutory maximum,

another indication of its substantive reasonableness. See United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the totality of the

circumstances, we are not “left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a)

factors.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(quotation omitted).

                                II. CONCLUSION

      Accordingly, Sepulveda’s sentence was procedurally and substantively

reasonable, and we affirm.

      AFFIRMED.




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