                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-14451         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        MAY 31, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                               D.C. Docket No. 1:08-tp-20072-DLG-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

GERARDO PENDAS,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (May 31, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
      Gerardo Pendas appeals the sentence imposed upon revocation of his

supervised release, 18 U.S.C. § 3583(e)(3). Because we conclude that Pendas’s

sentence is reasonable, we affirm.

      In 2004, Pendas pleaded guilty to conspiracy to distribute drugs and illegal

use of a communications facility and was sentenced to 72 months’ imprisonment

to be followed by 5 years of supervised release. In 2007, Pendas began his term of

supervised release.

      In 2008, the district court revoked Pendas’s supervised release after Pendas

pleaded guilty to conspiracy to possess with intent to distribute cocaine. The

undisputed guidelines range for the violation was 24 to 30 months’ imprisonment.

The government requested that the sentence run consecutive to the 97-month

sentence Pendas received in the conspiracy case. Pendas requested the sentences

run concurrently.

      The district court considered the parties’ statements and the advisory

guideline range, and sentenced Pendas to 24 months’ imprisonment to run

consecutively to the 97-month term imposed for the drug conspiracy offense.

Pendas now appeals, challenging the reasonableness of his sentence.

      A sentence imposed upon revocation of supervised release is reviewed for

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

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2006). “[A] sentence may be reviewed for procedural or substantive

unreasonableness.” United States v. Ellisor, 522 F.3d 1255, 1273 (11th Cir. 2008).

We review both the procedural and substantive reasonableness of a sentence for an

abuse of discretion. Id. at 1273 n.25.

      In reviewing whether a sentence is reasonable, we must ensure, first, that

the district court did not commit a 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.”

Gall v. United States, 552 U.S. 38, 51 (2007). “[T]he sentencing judge should set

forth enough to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir. 2007) (citation

and quotation omitted). But the district court need not discuss or explicitly state

on the record each § 3553(a) factor. United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005). “Rather, an acknowledgment by the district judge that he or she

has considered the § 3553(a) factors will suffice.” United States v. Amedeo, 487

F.3d 823, 832 (11th Cir. 2007) (quotation omitted).




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      “The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory

factors in § 3553(a) support the sentence in question.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). “[T]he party who challenges the sentence

bears the burden of establishing that the sentence is unreasonable in the light of

both [the] record and the factors in section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). We will vacate a sentence only if “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, __

S.Ct. __ (2011).

      When sentencing a defendant upon revocation of supervised release under

18 U.S.C. § 3583(e), a district court must consider the sentencing factors set forth

in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the need for the sentence imposed

to afford adequate deterrence to criminal conduct, to protect the public from

further crimes of the defendant, and to provide the defendant with training,

medical care, or correctional treatment; (3) the Sentencing Guidelines’ range; (4)

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pertinent Sentencing Commission policy statements; (5) the need to avoid

unwarranted sentencing disparities among similarly situated defendants with

similar records; and (6) the need to provide restitution to victims. See 18 U.S.C. §

3583(e). The sentence imposed must be sufficient, but not greater than necessary,

to comply with the purposes set forth in § 3553(a)(2). 18 U.S.C. § 3553(a).

      We have consistently held that the policy statements in Chapter Seven are

merely advisory and not binding, but the district court is nevertheless required to

consider them. United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006). When

the court imposes a sentence upon revocation, “the court should sanction primarily

the defendant’s breach of trust . . . [and] the sanction for the violation of trust

should be in addition, or consecutive, to any sentence imposed for the new

conduct.” U.S.S.G., ch. 7, pt. A, comment. (n.3(b)); see also U.S.S.G. § 7B1.3(f)

(“[a]ny term of imprisonment imposed upon the revocation of probation or

supervised release shall be ordered to be served consecutively to any sentence of

imprisonment the defendant is serving,” even if the sentence being served resulted

from the same offense that constituted the basis for the revocation of supervised

release).

      On review, we conclude that the district court did not abuse its discretion by

imposing a sentence to run consecutively to Pendas’s 97-month sentence, and the

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sentence imposed was both procedurally and substantively reasonable. The court

considered and adequately weighed the § 3553(a) factors. It was not an abuse of

discretion for the court to give more weight to the guideline’s suggestion that

Pendas’s sentence run consecutive because Pendas was not being sentenced for the

violating offense but rather for his breach of trust. Accordingly, we affirm.

      AFFIRMED.




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