                   Case: 12-10856          Date Filed: 11/08/2012   Page: 1 of 20

                                                                         [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10856
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:10-tp-20200-JEM-1


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

DAVID SUBIL,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (November 8, 2012)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         David Subil appeals the revocation of his supervised release and sentence of
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21 months’ imprisonment, 18 U.S.C. § 3583(e). For the reasons set forth below,

we affirm the district court’s revocation of Subil’s term of supervised release and

imposition of a 21-month sentence.

                                         I.

      In 2006, Subil was sentenced to 60 months’ imprisonment and 3 years’

supervised release for use of a fictitious name/address to commit fraud, in

violation of 18 U.S.C. § 1342. The conditions of Subil’s supervised release

specified that he was not to commit another federal, state, or local crime; that he

report to a probation officer as directed; and that he would notify the probation

officer ten days before any change of residence. In 2010, Subil’s probation

officer, John Steinhilber, filed a petition recommending that Subil’s supervision be

revoked. Steinhilber believed, inter alia, that Subil had violated his conditions of

supervised release by (1) driving under the influence in violation of Florida law;

(2) committing grand theft in violation of Florida law; (3) failing to notify the

probation officer of a change in Subil’s residence; and (4) failing to report to the

probation officer as directed.

      At the revocation hearing, the government presented the testimony of

Steinhilber and offered into evidence two copies of judgments of conviction. The

judgments indicated that “David Subil” had pled guilty to grand theft and had pled

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nolo contendere to driving under the influence. Subil objected to the admission of

the evidence on the grounds of “improper foundation,” asserting that the

documents were not properly certified. The court found that the judgments were

certified and overruled Subil’s objections. Steinhilber testified that he had not

questioned any witnesses as to whether Subil himself was the “David Subil”

named in the judgement for grand theft.

      Following Steinhilber’s testimony, the government stated that it had no

further evidence, and the parties presented their final arguments to the court. In

his closing argument, Subil conceded that he had failed to notify the probation

officer of a change in Subil’s residence and failed to report to the probation officer

as directed. The court stated it would schedule a hearing to make a final

determination on the remaining charges.

      The day after the hearing, the government filed a memorandum in which it

asserted that it had booking photographs of Subil related to the grand-theft and

driving-under-the-influence cases that provided further evidence that Subil was

the individual named in the two judgments. The government argued that the court

should allow the government to reopen its case to introduce the photographs

because the federal public defender, who had represented Subil before he retained

his present counsel, had stated that Subil would not contest the violations. It was

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not until the night before the hearing that Subil’s present counsel informed the

government that the hearing would, in fact, be contested. The government later

formally moved to reopen the hearing. Over Subil’s objection, the court granted

the government’s motion.

      Upon the reopening of the revocation proceedings, Subil asserted that his

previous objections to the judgments of convictions were on the grounds that their

admission violated his confrontation rights. The court found that the records were

reliable and that the reliability of the evidence outweighed Subil’s right to

confrontation. The court further stated that it believed that the government was

using the judgments to prove the fact of conviction, and there was no witness who

would be able to reliably testify as to anything of value with respect to the fact of

his conviction. Thus, it overruled Subil’s objection. Next, the government

introduced two mug shot profiles of an individual who Steinhilber recognized as

Subil. The profiles indicated that Subil was arrested for driving under the

influence on October 3, 2010, and for grand theft on October 23, 2010.

      Subil argued that the government had not shown that the relevant conduct

occurred during his supervised release period. The court determined that he had

committed the state offenses during his period of supervision because it was

unlikely that he had committed the offenses before his imprisonment in 2006, but

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was not arrested for the offenses until 2010. The court determined that Subil had

violated the mandatory conditions of his supervision based on the judgments of

convictions.

      In a sentencing memorandum, Subil requested that the court sentence him to

a period of supervised release, not to a period of imprisonment, in order to

facilitate his rehabilitation. At sentencing, the government contended that Subil’s

position at the revocation hearing was inconsistent with his acceptance of

responsibility. Further, there was insufficient evidence to demonstrate whether it

would be better for him to be out on supervised release, as opposed to in prison.

The government asserted that it hoped that Subil could obtain the treatment he

needed in prison. Subil, speaking on his own behalf, responded that the reason he

did not immediately accept responsibility for his violations was because he did not

believe he would have such a “good response” from the government. Subil stated

that he had a “medical issue,” as his probation officer knew.

      The court responded to Subil that no one questioned whether he had a

medical issue. The court stated that, “[i]n fact, it’s one of the ways they’re urging

me to put you in so that you can get the medical treatment that they agree that you

need.” The court stated that, had Subil initially admitted responsibility, it would

be more sympathetic to his request not to be sentenced to a term of imprisonment.

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Subil instead seemed to be trying to have the “best of both worlds” by first

contesting the violations at the hearing and then, later, admitting that he did

commit the violations. The court stated that Subil could do that and had “every

right to do that.” However, it did not help him at sentencing. The court stated that

it had considered Subil’s statements, the parties’ arguments, all of the information

in the violation report, and the evidence that had been presented. It then imposed

a sentence of 21 months’ imprisonment, at the low end of the applicable guideline

range of 21 to 27 months’ imprisonment, and 15 months’ supervised release.

                                         II.

      On appeal, Subil argues that the district court erred in admitting a Florida

judgment of conviction for grand theft because there was no foundation for its

admission, as the government had not proven that Subil was the “David Subil”

named in the judgment. He also contends that the district court’s findings were to

be based on verified facts and an accurate knowledge of his actions.

      A district court’s revocation of supervised release is reviewed under an

abuse of discretion standard. See United States v. Frazier, 26 F.3d 110, 112 (11th

Cir. 1994). We review for plain error those issues to which the defendant did not

timely object. United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). An

error is plain when it is “obvious” or “clear” under current law. Id. at 1207

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(quotations omitted).

      A district court’s finding that a defendant has committed a violation of the

terms of his supervision should be based on verified facts and accurate knowledge

of the defendant’s behavior. See Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct.

2593, 2602, 33 L.Ed.2d 484 (1972); United States v. Copeland, 20 F.3d 412, 414

(11th Cir. 1994) (providing that those facing revocation of supervised release are

entitled to the same due process protections provided to those facing revocation of

parole). The rules that apply during a revocation hearing should be informal and

flexible enough for the court to consider evidence, such as letters, affidavits and

other material, which would not be admissible in a criminal trial. Morrissey, 408

U.S. at 489, 92 S.Ct. at 2604. The Federal Rules of Evidence do not apply in

supervised release revocation proceedings. Frazier, 26 F.3d at 114. A certified

copy of a conviction is proper evidence that a defendant violated a state or federal

law and, thereby, violated a condition of his or her supervised release. See United

States v. Hofierka, 83 F.3d 357, 363 (11th Cir. 1996).

      Certified copies of public records are self-authenticating where the copy is

certified as correct by a custodian or other person authorized to make the

certification. Fed.R.Evid. 902(4)(A). In Subil’s case, the district court determined

that the judgment was properly certified, such that it was admissible, and Subil

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does not challenge the court’s certification finding. Thus, the district court did not

commit error, let alone plain error, in admitting the judgment without first

requiring an independent showing that Subil was the “David Subil” named in the

judgment. Further, after the admission of the judgment, the government offered a

booking photograph of Subil related to his arrest for grand theft. Thus, although

the government did not show that Subil was the “David Subil” depicted in the

judgment before the court admitted the judgment, it did provide additional

evidence demonstrating such after the judgment was admitted. Accordingly, the

district court did not plainly err in relying on the grand-theft judgment of

conviction as evidence that Subil had violated the terms of his supervised release.

                                         III.

      Subil argues that the district court abused its discretion in granting the

government’s motion to reopen the revocation proceedings for the presentation of

additional evidence. Subil contends that (1) the motion was untimely; (2) the

evidence was available to the government at the inception of the proceedings with

minimal diligence; (3) the reopening prejudiced Subil, as it allowed the

government to directly respond to his arguments concerning deficiencies in the

evidence; and (4) it had no reason for requesting the reopening.

      A decision to reopen a case to introduce additional evidence is reviewed for

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abuse of discretion. United States v. Byrd, 403 F.3d 1278, 1283 (11th Cir. 2005).

A district court has great latitude in determining whether to permit the reopening

of a case so that omitted evidence may be presented. United States v. Molinares,

700 F.2d 647, 652 (11th Cir. 1983). We will not disturb the district court’s

exercise of discretion unless the defendant suffered actual prejudice in the conduct

of his defense. Id. at 649, 652. In determining whether a district court has abused

its discretion in declining to reopen a case for a defendant to present his own

testimony, we examine the following factors: (1) the timeliness of the motion to

reopen; (2) the character of the testimony to be offered; (3) the effect of granting

the motion to reopen; and (4) the reasonableness of the excuse for the request to

reopen. Byrd, 403 F.3d at 1284, 1287.

      Review of the Byrd factors demonstrates that they weigh in favor of the

government. See id. at 1284. The government first requested the court to reopen

the proceedings for the purpose of presenting booking photographs of Subil the

day after the hearing was held, and thus, its request was timely. The government

asserted that it had not attempted to obtain the evidence it presented upon the

reopening because Subil’s previous counsel told the government that Subil would

not contest the violations. Thus, although the character of the evidence the

government introduced upon reopening ordinarily should have been presented at

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the initial proceeding, Subil’s previous counsel’s representations excused the

government’s failure to present the evidence initially.

      Although Subil argues that allowing the government to reopen its case after

it heard Subil’s arguments prejudiced him, we have previously rejected such an

argument. See Molinares, 700 F.2d at 649, 652 (determining that the defendant’s

defense had not been prejudiced by the district court’s decision to allow the

government to present evidence in response to arguments made in the defendant’s

motion for a judgment of acquittal). Finally, the government’s excuse for

requesting the reopening—that it was unprepared to present the evidence initially

because it was unaware that the hearing would be contested—was reasonable.

Accordingly, the district court did not abuse its discretion in allowing the

government to reopen its case to present additional evidence.

                                         IV.

      Subil argues that the district court’s determination that he violated the terms

of his supervised release during his period of supervision by committing grand

theft was not supported by sufficient evidence, as the evidence did not indicate

when he actually committed grand theft.

      We review the district court’s conclusion that a defendant violated the terms

of his supervised release for an abuse of discretion. Copeland, 20 F.3d at 413. A

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district court may revoke a defendant’s term of supervised release and impose a

prison sentence when it finds by a preponderance of the evidence that the

defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3);

United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006).

      Sufficient evidence supports the court’s finding that Subil committed grand

theft during the term of his supervised release. The copy of his grand-theft

conviction was sufficient evidence to prove he violated a condition of his

supervision. Hofierka, 83 F.3d at 363 (affirming district court’s finding that

defendant had violated the terms of his supervised release based on a certified

copy of defendant’s judgment of conviction alone). The government demonstrated

that Subil was the “David Subil” depicted in the judgment of conviction. Further,

Steinhilber testified that the mug shot profile stated that Subil was arrested for

grand theft on October 23, 2010. As the district court determined, it was unlikely

that Subil committed grand theft in 2006, before his incarceration, but was not

arrested for the offense until 2010. Thus, the mug shot profile and Steinhilber’s

testimony proved by a preponderance of the evidence that Subil committed grand

theft during his term of supervised release.

                                          V.

      Subil argues that he was deprived of procedural due process at his

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supervised release revocation hearing. According to Subil, he was never provided

with a full disclosure of the evidence against him, as the government never

provided him with his PSI or his mental health records. Subil further argues that

the district court erred in admitting hearsay evidence concerning the underlying

violations because it failed to properly balance Subil’s right to confrontation

against the government’s reason for not allowing confrontation. Subil contends

that he did not have an opportunity to present mitigating evidence because he was

denied access to his mental health records that the government possessed. Finally,

Subil asserts that the court did not state its findings for why it revoked his

supervised release in sufficient detail.

      We review de novo whether a defendant’s due process rights were violated.

See United States v. Watkins, 147 F.3d 1294, 1296 (11th Cir. 1998) (reviewing de

novo whether a re-sentencing hearing violated defendant’s due process rights). A

defendant facing revocation of supervised release is not entitled to the same

procedural protections afforded a defendant in a criminal proceeding, but is

entitled to the protections set forth in Morrissey v. Brewer. See Copeland, 20 F.3d

at 414; Morrissey, 408 U.S. at 487-89, 92 S.Ct. at 2603-04. One of the protections

set forth in Morrissey is the requirement that a court make findings that

demonstrate the reasons for the revocation of supervised release and the evidence

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upon which the court relied. Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. A

district court may state from the bench its reasons for revoking a defendant’s

supervised release. Copeland, 20 F.3d at 414. General conclusory reasons for the

revocation do not satisfy due process. Id. Fed.R.Crim.P. 32.1 sets forth most of

the minimal due process rights that apply to revocation proceedings. Frazier, 26

F.3d at 114. Pursuant to Fed.R.Crim.P. 32.1, a defendant is entitled to the

following: (1) written notice of the alleged violation; (2) disclosure of the

evidence against the defendant; (3) an opportunity to appear at the hearing, present

evidence, and question any adverse witness except where the court determines that

the interest of justice does not require an appearance by such a witness; (4) notice

of the right to counsel; and (5) an opportunity to make a statement and present any

mitigating evidence. Fed.R.Crim.P. 32.1(b)(2)(A)-(E).

      Because defendants have the right to confront and cross-examine adverse

witnesses during a supervised release revocation proceeding, the admission of

hearsay is not automatic. Frazier, 26 F.3d at 114. However, the Supreme Court

has stated that a defendant’s right to confrontation does not bar appropriate use of

conventional substitutes for live testimony, including affidavits, depositions, and

documentary evidence, during a revocation hearing. See Gagnon v. Scarpelli, 411

U.S. 778, 782 n.5, 93 S.Ct. 1756, 1760 n.5, 36 L.Ed.2d 656 (1973). In deciding

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whether to admit hearsay testimony, the court should balance the defendant’s right

to confront adverse witnesses against the grounds asserted by the government for

denying confrontation. Frazier, 26 F.3d at 114. Further, the hearsay statement

must be reliable. Id. We have previously held that a defendant’s right to

confrontation was not violated by the admission of hearsay where a district court

determined that good cause existed for its admission, as the hearsay was highly

reliable. United States v. Penn, 721 F.2d 762, 764-66 (11th Cir. 1983).

      Subil was provided with disclosure of the evidence against him. To the

extent that the government did rely on portions of an earlier version of Subil’s

presentence investigation report (“PSI”) to prove that Subil committed the

violations, it filed the pages of the PSI upon which it relied. Review of the record

demonstrates that the government never relied on his mental health records as

evidence against him at the hearing. Rather, Subil was the one to cite to his

mental health history as mitigating evidence. Subil’s opportunity to present

mitigating evidence was not impeded by the government. Steinhilber testified as

to the contents of the one report that he possessed and testified that the Bureau of

Prisons did not provide him with any of Subil’s medical records.

      The district court properly balanced Subil’s right to confrontation against

the government’s reason for not allowing confrontation with respect to the

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judgments of conviction. Frazier, 26 F.3d at 114. The court noted the highly

reliable nature of the judgments of conviction and noted the small value, if any,

that would be had by having a live witness with personal knowledge of Subil’s

convictions testify as to the judgments. See Penn, 721 F.2d at 764-66. The court

also noted that it was unlikely that there would even be a witness who would have

such personal knowledge. Finally, the district court stated the reasons for the

revocation of supervised release and the evidence upon which the court relied in

sufficient detail. The court indicated that it relied on Subil’s judgments of

convictions with respect to the violations of state law, and Subil had previously

conceded the reporting and notification violations. Thus, Subil’s due process

rights were not violated during the supervised release revocation hearing.

                                         VI.

      Subil argues that the district court misapplied the Sentencing Guidelines in

determining what grade of violation he had committed because the court did not

consider his actual conduct, but only considered the criminal charges underlying

his convictions. According to Subil, because the judgments did not indicate

whether he actually had committed the conduct, the court could not determine

what grade of violation he committed based on the judgements alone. Subil

contends that the court impermissibly considered his need for mental health

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treatment in deciding to imprison him, in violation of the Supreme Court’s recent

decision in Tapia v. United States, 564 U.S. ___, ___, 131 S.Ct. 2382, 2385,

2392-93, 180 L.Ed.2d 357 (2011), and impermissibly considered the fact that

Subil had exercised his right to a final revocation hearing.

       We review the sentence imposed upon the revocation of supervised release

for reasonableness. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252

(11th Cir. 2008). This reasonableness review applies the deferential abuse of

discretion standard.1 Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594,

169 L.Ed.2d 445 (2007). The party challenging the sentence has the burden of

establishing that the sentence was unreasonable. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2008).

       In reviewing the reasonableness of a sentence, we conduct a two-step

review. Gall, 552 U.S. at 51, 128 S.Ct. at 597. First, we must ensure that the

sentence was procedurally reasonable, which includes proper calculation of the

guideline range. Id. Once we determine that a sentence is procedurally sound, we

must examine whether the sentence was substantively reasonable in light of the



       1
           We have not decided the appropriate standard of review for reasonableness where a
defendant does not object to the reasonableness of his sentence on the grounds raised on appeal,
as is the case here. Nonetheless, the resolution of the standard of review issue does not affect the
reasonableness analysis or ultimate outcome of this case.

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record and the § 3553(a) factors. Id. A sentence that is based entirely upon an

impermissible factor is unreasonable because the sentence fails to achieve the

purposes of § 3553(a). Velasquez Velasquez, 524 F.3d at 1252.

      Chapter 7 of the Sentencing Guidelines governs violations of supervised

release and provides recommended ranges of imprisonment applicable upon

revocation. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006) (citing

U.S.S.G. § 7B1.4). Under the Sentencing Guidelines, where a defendant violated

more than one condition of supervision, the grade of the violation is determined by

the violation with the most serious grade. U.S.S.G. § 7B1.1(b). The Guidelines

provide that conduct that constitutes a state offense punishable by a term of

imprisonment exceeding one year is a Grade B violation for which revocation of

supervised release is mandatory. U.S.S.G. §§ 7B1.1(a)(2), 7B1.3(a)(1). The

commentary to the Guidelines indicates that the grade of the violation is to be

based on a defendant’s actual conduct, rather than the conduct that is the subject of

the criminal charges or the conduct of which the defendant is convicted in a

criminal proceeding. U.S.S.G. § 7B1.1, comment. (n.1).

      Florida law allows a defendant to enter a plea of convenience, and thus, a

defendant may plead guilty while maintaining his innocence. See Garces v. U.S.

Att’y Gen., 611 F.3d 1337, 1347-48 (11th Cir. 2010); Fla.R.Crim.P. 3.172(e)

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(providing that, before the trial judge accepts a guilty plea, the court must

determine that the defendant either acknowledges his guilt or acknowledges that

the plea is in his best interest, while maintaining his innocence). Subil’s judgment

for grand theft does not indicate whether his plea of guilty was a plea of

convenience or an acknowledgment of his guilt. Regardless, even if Subil had

entered a plea of convenience, otherwise known as an Alford plea, his plea was the

functional equivalent of a guilty plea and required the Florida court to determine

that a factual basis existed to support his plea. See North Carolina v. Alford, 400

U.S. 25, 37-38 & n.10, 91 S.Ct. 160, 167-68 & n.10, 27 L.Ed.2d 162 (1970)

(holding that a court that accepts a guilty plea from a defendant who maintains his

innocence does not commit a constitutional error, so long as the plea has a factual

basis); Troville v. State, 953 So.2d 637, 638-40 (Fla. Dist. Ct. App. 2007)

(providing that, so long as the guilty plea represents a voluntary and intelligent

choice among alternative courses of action open to a defendant and a sufficient

factual basis exists to support the plea of guilty, the collateral consequences

flowing from an Alford plea are the same as those that flow from an ordinary plea

of guilt). To the extent Subil claims that he was innocent of the crime of grand

theft or that there was no factual basis supporting his plea of guilty, his revocation

proceeding was not the proper forum in which to attack his conviction for grand

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theft. Hofierka, 83 F.3d at 363. Thus, regardless of whether Subil entered a plea

of convenience or actually acknowledged his guilt of committing the offense of

grand theft, the district court did not abuse its discretion in finding that his actual

conduct included his commission of grand theft, a Grade B violation. See Fla.

Stat. §§ 812.014(2)(c), 775.082(3)(d) (providing that grand theft of the third

degree is a third-degree felony and is punishable by a term of imprisonment not to

exceed five years).

      Next, review of the record shows that the district court did not rely on

Subil’s medical condition in sentencing Subil. Rather, the court agreed with Subil

that he had a “medical issue” and referenced the government’s earlier assertion

that a term of imprisonment would allow him to receive the treatment that the

government and Subil agreed that he needed. Thus, we do not decide whether the

Supreme Court’s holding in Tapia, 564 U.S. at ___, 131 S.Ct. at 2392-93, applies

in the context of a supervised release revocation hearing.

      Next, the record does not indicate that the court penalized Subil for

exercising his right to contest the revocation of his supervised release. Rather, the

court only commented on his refusal to accept responsibility. Subil had requested

leniency from the court, in part, based on his acceptance of responsibility for his

past acts. The court was permitted to weigh Subil’s failure to express remorse

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until sentencing against his actions taken during the hearing without relying on a

constitutionally impermissible factor. See United States v. Williams, 627 F.3d

839, 845 (11th Cir. 2010) (providing that, where a defendant has denied his guilt

in the face of evidence to the contrary, a court may consider that fact and decide

that he is not entitled to a reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1). As Subil has not raised any other grounds for why his sentence

is unreasonable, as is his burden, the district court did not abuse its discretion in

imposing a sentence of 21 months’ imprisonment. See Talley, 431 F.3d at 788.

      For the foregoing reasons, we affirm the district court’s revocation of

Subil’s term of supervised release and imposition of a sentence of 21 months’

imprisonment.

      AFFIRMED.




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