          Case: 15-10084   Date Filed: 08/14/2015   Page: 1 of 13


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10084
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 6:14-cr-00168-GKS-KRS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JOHN PIERRE VALERA,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 14, 2015)

Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      John Pierre Valera appeals his 60-month sentence, imposed above the

advisory guideline range of 12 to 18 months’ imprisonment, as calculated in the

presentence investigation report, after pleading guilty to access-device fraud.

Valera argues that his sentence is both procedurally and substantively

unreasonable.    After careful review, we vacate and remand for resentencing

because the record is insufficiently developed for meaningful appellate review.

                                          I.

      We first address the government’s contention that plain-error review applies

to Valera’s procedural-reasonableness arguments because he did not object to

procedural reasonableness at sentencing. See United States v. Vandergrift, 754

F.3d 1303, 1307 (11th Cir. 2014) (applying plain-error review to a procedural-

reasonableness challenge).     Under plain-error review, the appellant bears the

burden of showing an error that is plain under existing law and that affected his

substantial rights—i.e., an obvious error that affected the outcome of the

proceedings. See id.

      But in order for plain-error review to apply, the party must have been

“offered the opportunity to object.” United States v. Jones, 899 F.2d 1097, 1102-

03 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 984

F.2d 1136 (11th Cir. 1993) (en banc). Here, although Valera does not raise the

technical violation of this Court’s decision in Jones, he asserts that he did not have


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an opportunity to object after the court imposed sentence, and we find that a Jones

violation occurred in this case. See United States v. Cruz, 946 F.2d 122, 124 n.1

(11th Cir. 1991) (noting a technical violation of Jones despite the appellant’s

failure to raise the issue on appeal); see also United States v. Johnson, 451 F.3d

1239, 1242 (11th Cir. 2006) (same). This Court in Jones held that

            the district court must give the parties an opportunity not
            only to resolve the objections contained in the addendum
            but also—after the court states its factual findings,
            applies the guidelines, and imposes sentence—to object
            to the district court’s ultimate findings of fact and
            conclusions of law and to the manner in which the
            sentence is pronounced. This will serve the dual purpose
            of permitting the district court to correct on the spot any
            error it may have made and of guiding appellate review.

Jones, 899 F.2d at 1102.

      In this case, as in Cruz, “Jones is applicable to [Valera] because the district

court summarily concluded the sentencing hearing without giving [Valera] the

opportunity to object to its ultimate factual findings and legal conclusions.” Cruz,

946 F.2d at 124 n.1.       After the court pronounced sentence, it asked Valera

personally if he had anything he wanted to say, and when Valera responded that he

did not, the court turned to defense counsel, stating, “Mr. Chang?”         Defense

counsel requested that Valera be allowed to self-surrender, which the court

opposed. The court asked the prosecutor about forfeiture and then directed the

courtroom deputy to call the next case. As the deputy began calling the next case,


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defense counsel attempted to object to the reasonableness of Valera’s sentence, but

was interrupted mid-statement by the court’s terse comment, “They’re noted.”

        The district court’s general question to defense counsel, “Mr. Chang?”, does

not satisfy Jones, even if it is read as a continuation of the court’s earlier question

to Valera. “In applying the Jones rule, this court has held that when the district

court merely asks if there is ‘anything further?’ or ‘anything else?’ and neither

party responds with objections, then the court has failed to elicit fully articulated

objections and has therefore violated Jones.” United States v. Campbell, 473 F.3d

1345, 1348 (11th Cir. 2007). The court’s comment here similarly fails to elicit

fully articulated objections. The fact that Mr. Chang raised the issue of self-

surrender does not cure the violation, given that it was not an objection but a

request unrelated “to the district court’s ultimate findings of fact and conclusions

of law and to the manner in which the sentence is pronounced.” Jones, 899 F.2d at

1102.    “Based on this exchange, there is no indication that defense counsel

understood the court to be eliciting objections.” Campbell, 473 F.3d at 1348.

Accordingly, we hold that the district court failed to comply with the procedure

announced in Jones. As a result, plain-error review does not apply. See id.

                                          II.

        Ordinarily, if a Jones violation occurs, we “vacate the sentence and remand

to the district court to give the parties an opportunity to present their objections.”


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Campbell, 473 F.3d at 1347. Nevertheless, remand is unnecessary if the record is

sufficient for meaningful appellate review. Id.; Johnson, 451 F.3d at 1242; Cruz,

946 F.2d at 124 n.1. In this case, we conclude, for the reasons explained below,

that the record is insufficiently developed for meaningful review.

      On appeal, Valera contends that the district court committed the following

errors:   (1) failed to calculate the guideline range, (2) failed to consider or

reference the 18 U.S.C. § 3553(a) sentencing factors; and (3) imposed a sentence,

based on legally insufficient reasons, that is greater than necessary to serve the

purposes of sentencing.

      Generally, we review the reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). We “first 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. at 51, 128 S. Ct. at 597. Assuming that

the court’s sentencing decision was procedurally sound, we then review, with

deference to the district court, whether the sentence was substantively reasonable




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under the totality of the circumstances and in view of the § 3553(a) sentencing

factors. Id.

         Here, the record reflects several procedural deficiencies in the brief

sentencing hearing. 1 First, the district court did not state the applicable guideline

range.         Gall explains that sentencing courts “should begin all sentencing

proceedings by correctly calculating the applicable Guidelines range,” which is

“the starting point and the initial benchmark.” Id. at 49, 128 S. Ct. at 596; see

Pugh, 515 F.3d at 1190 (“[N]ot only must the district courts consult th[e]

Guidelines and take them into account when sentencing, they must properly

calculate the Guidelines range and includ[e] an explanation for any deviation from

the Guidelines range.” (citations and internal quotation marks omitted)). The

failure to calculate the guideline range is a “significant procedural error.” Gall,

552 U.S. at 51; 128 S. Ct. at 597; see Campbell, 473 F.3d at 1349 (vacating a

sentence as procedurally unreasonable because the district court never stated the

guideline range or mentioned the word “Guidelines”). Although we can infer from

the district court’s comments at sentencing that the court considered the guideline

range reflected in the presentence investigation report (“PSR”), the court should

have resolved Valera’s guidelines objection and calculated the guideline range on




         1
             The record reflects that the sentencing hearing lasted for seven minutes.
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the record before pronouncing sentence. See Gall, 552 U.S. at 49-50, 128 S. Ct. at

596-97; Pugh, 515 F.3d at 1190.

      Second, the district court did not explicitly reference the sentencing factors

under 18 U.S.C. § 3553(a). In sentencing a defendant, the court must “consider all

of the § 3553(a) factors” and “make an individualized assessment based on the

facts presented.” Gall, 552 U.S. at 49-50, 128 S. Ct. at 596-97. We do not require

courts to reference or discuss each factor explicitly. United States v. Scott, 426

F.3d 1324, 1329 (11th Cir. 2005). Rather, we have held that it is generally

sufficient for the court to “explicitly acknowledge[] that it had considered [the

defendant’s] arguments at sentencing and that it had considered the factors set

forth in § 3553(a).” Id. at 1330. In this case, the district court made no such

explicit acknowledgement of the § 3553(a) on the record, nor did the court

“allow[] both parties to present arguments as to what they believed the appropriate

sentence should be” before imposing sentence. Gall, 552 U.S. at 53, 128 S. Ct. at

598; see Fed. R. Crim. P. 32(i)(1)(C) (requiring the district court to allow the

parties to comment on “matters relating to an appropriate sentence”).

      Nevertheless, as the government points out, the failure to reference the

§ 3553(a) factors, like the failure to state the applicable guideline range, does not

render a sentence unreasonable if the record demonstrates that the district court

complied with its procedural obligations. The government relies on United States


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v. Dorman, 488 F.3d 936 (11th Cir. 2007), to argue that the district court in this

case adequately considered the § 3553(a) factors. In Dorman, the district court

similarly failed “to explicitly articulate that it had considered the § 3553(a)

factors.” Id. at 944. On appeal, we concluded that the sentence was reasonable

because the court “considered a number of the sentencing factors” “by virtue of the

court’s consideration of Dorman’s objections and his motion for a downward

departure.” Id. We also noted that the court had calculated the guideline range

accurately and sentenced Dorman within that range and had considered the parties’

arguments at sentencing, among other considerations. Id.

       The record in this case reflects that the district court did consider some of

the sentencing factors, including deterrence, 18 U.S.C. § 3553(a)(2)(B), and the

nature and circumstances of the offense, id. § 3553(a)(1). However, two main

differences distinguish this case from Dorman. First, the district court did not state

the guideline range, nor did it sentence Valera within the 12-to-18-month range

reflected in the PSR. Second, the district court in this case did not hear arguments

from the parties as to an appropriate sentence before sentencing Valera to 60

months’ imprisonment, and then it failed to elicit fully articulated objections as

required by Jones.2 As a result, we cannot, as we did in Dorman, look to Valera’s


       2
         We note that the district court appears to have given no indication to the parties that it
was considering upwardly varying from the guideline range. Such notice is not required when
the court imposes a variance, Irizarry v. United States, 553 U.S. 708, 714-16, 128 S. Ct. 2198,
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arguments at sentencing to establish that the court adequately considered the

§ 3553(a) factors.

       Finally, even if the record were sufficient to show that the court considered

both the applicable guideline range and the § 3553(a) factors, we also conclude

that the district judge’s explanation for the chosen sentence fails “to allow for

meaningful appellate review and to promote the perception of fair sentencing.”

Gall, 552 U.S. at 50, 128 S. Ct. at 597. The sentencing judge’s explanation of the

sentence is particularly important where, as here, the court varied from the

guideline range, because we must determine whether the variance was supported

by “sufficient justifications.” United States v. Brown, 772 F.3d 1262, 1266 (11th

Cir. 2014) (quoting Gall, 552 U.S. at 46, 128 S. Ct. at 594).

       At the sentencing hearing, after Valera’s allocution, the judge explained the

reasons for the sentence as follows:

                  This kind of crime has gone viral in the United States
               and it has got to be stopped.

                 You claim—or your attorney claims that you’re a
               minor participant. However, you had a skimmer. A


2202-03 (2008), but “[s]ound practice dictates that judges in all cases should make sure that the
information provided to the parties in advance of the hearing, and in the hearing itself, has given
them an adequate opportunity to confront and debate the relevant issues.” See id. at 715, 128 S.
Ct. at 2203. Here, the lack of notice was likely more prejudicial than in most cases because
Valera had executed a plea agreement with a sentence-appeal waiver, the government had agreed
to recommend a within-guideline sentence, the PSR did not identify any grounds for a variance,
and the court’s reasoning for the variance appears to have been based primarily on a policy
disagreement with the guidelines, not on Valera’s individual circumstances.
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            skimmer has absolutely no purpose except a criminal
            purpose: To steal people’s identity [sic].

               And you were such a coward that you had to go out
            and find somebody else to do your dirty work for you, to
            steal people’s identities.

               The Court rejects the guidelines in this case as being
            outdated because of the total viral sense of this type of
            robbery of people’s identities, and it just has to stop.

                Under the statute, you have an exposure of ten years
            in the Bureau of Prisons, but because you have a criminal
            history category I, the Court is going to reject the
            guidelines as being unreasonable.

               The Court feels that the guideline commission has not
            realized the epidemic effect of this type of criminal
            activity that has just gone through the whole country,
            that makes people afraid to even use their credit cards
            because of people using these skimmer devices that you
            have.

               So the Court is going to sentence you to five years in
            the Bureau of Prisons, a three years’ supervised release
            term, restitution of $15,101.18 payable at $100 a month,
            plus a $100 special assessment, and no voluntary
            surrender.

      Valera contends that this reasoning is legally insufficient because his

conduct was within the heartland of the guideline range for access-device fraud

offenses, and because the judge did not express a valid policy disagreement with

the guidelines. Instead, Valera asserts, the judge simply substituted his “own

personal opinion for that of the [Sentencing] Commission’s expertise.”



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      In United States v. Irey, we recognized that the Supreme Court’s decision in

Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), “allows a district

court to vary from the guidelines based solely on its judgment that the policies

behind the guidelines are wrong.” 612 F.3d 1160, 1212 (11th Cir. 2010) (en banc).

Yet, a district court’s rejection of the guidelines based on a policy disagreement

with those guidelines usually is subject to closer scrutiny on appellate review. Id.

at 1188. This is because the Sentencing Commission and sentencing courts have

“discrete institutional strengths.” Kimbrough, 552 U.S. at 109, 128 S. Ct. at 574.

The Commission “has the capacity courts lack to base its determinations on

empirical data and national experience, guided by a professional staff with

appropriate expertise.” Id. The sentencing judge, on the other hand, is in a

superior position to apply the § 3553(a) factors in a particular case. Id.

      Consequently, “decisions to vary may attract greatest respect when the

sentencing judge finds a particular case outside the heartland to which the

Commission intends individual Guidelines to apply.” Irey, 612 F.3d at 1188

(internal quotation marks omitted). “By contrast, closer review may be in order

when the sentencing judge varies from the Guidelines based solely on the judge’s

view that the Guidelines range fails properly to reflect § 3553(a) considerations

even in a mine-run case.” Id. (internal quotation marks omitted).




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      Here, we cannot tell from the judge’s reasoning whether he found that

Valera’s particular case was outside of the heartland of cases covered by the

guideline range, whether this was a “mine-run” case for which the guideline range

fails properly to reflect § 3553(a), or whether the sentence reflects some

combination of grounds. The judge primarily appears to have found that the

access-device fraud guidelines themselves are unreasonable. But the judge also

referenced aspects of the offense, including Valera’s use of a skimmer, and

somewhat cryptically told Valera that, “because you have a criminal history

category I, the Court is going to reject the guidelines as unreasonable.” Putting

aside the question of whether the lack of a criminal history could justify an upward

variance, it is unclear why a defendant’s criminal history category (which is

variable)—in contrast to the base offense level (which is constant)—would affect

the judge’s assessment of whether the access-device fraud guidelines, as a matter

of policy, are unreasonable.

      Because we are unable to determine with any certainty the grounds for the

district court’s upward variance, we do not know how much deference to give to

the district court’s sentencing determination, see Irey, 612 F.3d at 1188, nor do we

know with clarity what facts or conclusions are relevant in assessing whether the

variance is supported by “sufficient justifications,” see Brown, 772 F.3d at 1266.




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                                       III.

      Under the circumstances of this case, and viewing the procedural errors and

abnormalities cumulatively, we find that the record is insufficient for meaningful

review. Consequently, we vacate the sentence and remand for resentencing. See

Campbell, 473 F.3d at 1347-49.

      VACATED AND REMANDED.




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