                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                             No. 10-13374                 ELEVENTH CIRCUIT
                         Non-Argument Calendar                APRIL 11, 2011
                       ________________________                JOHN LEY
                                                                CLERK
                  D.C. Docket No. 1:94-cr-00692-KMM-3

UNITED STATES OF AMERICA,

                                               llllllllllllllllllPlaintiff-Appellee,


                                  versus


RIGOBERTO MONTEAGUDO,

                                               llllllllllllllDefendant-Appellant.

                      ________________________

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

                            (April 11, 2011)



Before HULL, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
       Rigoberto Monteagudo appeals his 24-month above-Guidelines sentence

imposed for violating the conditions of his supervised release. Monteagudo

asserts two issues on appeal, which we address in turn. After careful review, we

affirm Monteagudo’s sentence.

                                               I.

       Monteagudo first asserts his sentence is unreasonable. He argues his

sentence is procedurally unreasonable because the record does not support the

sentence, and the district court did not adequately explain why it imposed a

sentence above the Guidelines range. Monteagudo claims his sentence is

substantively unreasonable because his violations resulted from his drug addiction,

and the sentence does not allow for drug-addiction treatment.

       A sentence imposed upon the revocation of supervised release is reviewed

for reasonableness.1 United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). Further, “[w]e review a district court’s decision to exceed the Chapter 7

recommended guidelines range for an abuse of discretion.” U.S. v. Silva, 443 F.3d

795, 798 (11th Cir. 2006).

       1
         “Reasonableness review is akin to the deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38 (2007). The Government contends Monteagudo’s procedural
reasonableness arguments are subject to plain error review because he did not raise these
arguments before the district court. We decline to decide whether plain error review would apply
in this claim, because, as explained below, Monteagudo’s sentence is procedurally reasonable
under both standards of review.

                                               2
       There were no procedural errors in Monteagudo’s sentence. Although we

are unable to determine from the record whether Monteagudo’s supervised release

was revoked under § 3583(g) or § 3583(e), we conclude the district court

sufficiently addressed the § 3553(a) factors in sentencing Monteagudo. See

United States v. Brown, 224 F.3d 1237, 1241 (11th Cir. 2000) (holding that

mandatory revocation of supervised release under 18 U.S.C. § 3583(g) does not

require consideration of the § 3553(a) factors in sentencing). Specifically, the

court considered Monteagudo’s history and characteristics, noting that he was

granted an opportunity after his first revocation hearing to seek drug rehabilitation

treatment and failed to stay drug free.2 Further, the court considered

Monteagudo’s arguments for a Guidelines-range sentence, and the severity and

nature of the violations. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

2005) (holding that the district court’s consideration of a defendant’s arguments

and the 3553(a) factors is sufficient). Lastly, the district court appropriately

considered the Guidelines range when it noted that a sentence above the

Guidelines was necessary to respond to Monteagudo’s numerous supervised

release violations. See Silva, 443 F.3d at 799 (holding that the district court did



       2
       Monteagudo has violated his supervised release term two times within 18 months of
completing a 13-year prison term.

                                             3
not abuse its discretion in imposing a 24-month sentence for a probation violation,

despite an advisory range of 3 to 9 months, because the policy statements in

Chapter 7 were not binding on the court and the upward variance was necessary to

punish multiple violations).

      Monteagudo’s sentence was substantively reasonable in light of the

§ 3553(a) factors and the totality of the circumstances. See Gall v. United States,

552 U.S. 38, 51 (2007). The court considered Monteagudo’s prior failed

treatment and the severity and nature of his violations of supervised release.

Despite Monteagudo’s claim that continued drug treatment would be a better

alternative to incarceration, the record shows that drug treatment has repeatedly

failed in the past. Thus, we do not find an abuse of discretion under the

circumstances in this case.

                                          II.

      Monteagudo next asserts 18 U.S.C. § 3583(h) violates his Fifth Amendment

right to due process because it allows the court to indefinitely extend the

termination date of his 1995 sentence. Monteagudo contends this cycle of release

and revocation can continue throughout his lifetime, particularly because he is an

addict and will violate the terms of his supervised release in the future.

Monteagudo failed to object on this basis in the district court.

                                          4
      We review constitutional issues de novo, but will reverse only for plain

error if the defendant failed to object in the district court. United States v. Nash,

438 F.3d 1302, 1304 (11th Cir. 2006). In order for an error to be plain, it must be

obvious or clear under current law. United States v. Williams, 469 F.3d 963, 966

(11th Cir. 2006).

      Even assuming that Monteagudo could show that the threat of a future due

process violation was not too speculative, his challenge does not satisfy the

plain-error test because neither the Supreme Court nor this Court has held the

potential application of § 3583(h) to future supervised release violations

constitutes a violation of the Fifth Amendment. See Williams, 469 F.3d at 966.

Accordingly, Monteagudo’s sentence is affirmed.

      AFFIRMED.




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