                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              September 5, 2006
                              No. 06-11033                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 05-00069-TP-UUB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOSE LAZARO ROBAINA,

                                                          Defendant-Appellant.


                        ________________________

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

                            (September 5, 2006)

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Jose Lazaro Robaina appeals his sentence of 36 months’ imprisonment
following the revocation of his term of supervised release. First, Robaina argues

that the district court’s decision to sentence him at the statutory maximum was

“unreasonable and violated [his] due process [rights] because there was insufficient

evidence in the record that [he] was a drug dealer.” Second, Robaina argues that

his sentence was illegal because the court failed to: (a) make a statement of the

reasons for the departure upwards; (b) consider the guidelines’ Chapter 7 policy

statements; (c) consider the 18 U.S.C. § 3553(a) factors; and (d) consider

18 U.S.C. § 3583(d), which he argues requires the court to consider substance

abuse programs in sentencing.

                                           I.

      We review an appellant’s total sentence for reasonableness. United States v.

Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). In reviewing a sentence for

reasonableness, we are guided by the factors in 18 U.S.C. § 3553(a). United States

v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005). Such review is deferential,

requiring only that we “evaluate whether the sentence imposed by the district court

fails to achieve the purposes of sentencing.” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). Because Robaina failed to object to the constitutionality of

his sentence before the district court, we will review this issue only for plain error.

United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006).



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      Finally, we review a district court’s decision after revocation of supervised

release to impose a sentence above the range recommended by Chapter 7 of the

Sentencing Guidelines for abuse of discretion. United States v. Brown, 224 F.3d

1237, 1239 (11th Cir. 2000). A court abuses its discretion when its decision “rests

upon a clearly erroneous finding of fact, an errant conclusion of law, or an

improper application of law to fact.” United States v. Baker, 432 F.3d 1189, 1202

(11th Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006).

      “Defendants involved in revocation proceedings are entitled to certain

minimal due process requirements.” United States v. Frazier, 26 F.3d 110, 114

(11th Cir. 1994). In the parole revocation context, the Supreme Court has held that

due process requires:

      (a)    written notice of the claimed violations;
      (b)    disclosure of the evidence against the person;
      (c)    an opportunity to be heard in person and to present evidence;
      (d)    the right to confront and cross-examine witnesses;
      (e)    a “neutral and detached” hearing body; and
      (f)    a written statement by the factfinders indicating the evidence
             upon which they relied and their reasons for revoking
             supervision.

Morrissey v. Brewer, 408 U.S. 471, 488-89, 487, 92 S.Ct. 2593, 2604, 33 L.Ed.2d

484 (1972). We have extended the “protections granted those facing revocation of

parole [to cover] those facing the revocation of supervised release.” United States

v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994).

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      We have held that “[t]he findings of fact of the sentencing court may be

based on evidence heard during trial, facts admitted by a defendant’s plea of guilty,

undisputed statements in the presentence report, or evidence presented at the

sentencing hearing.” United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989). Further, a sentencing court “may consider any information with sufficient

reliability.” United States v. Riley, 142 F.3d 1254, 1258 (11th Cir. 1998).

      Having carefully reviewed the record and the briefs of the parties, we find

no reversible error. Although the district court did not expressly state that it had

considered the § 3553(a) factors, it is nevertheless clear from our review of the

sentencing transcript that it considered those factors. Further, the court did

acknowledge that the advisory imprisonment range was 12 to 18 months. Based on

our review of the record, we conclude that the sentence at the statutory maximum

was reasonable.

      Robaina does not specifically explain how the district court violated his due

process rights beyond connecting the violation to a lack of evidence. However,

due process does not specifically address such an issue. Add to this the fact that

Robaina does not cite any authority on this point, and it becomes difficult to detect

how we should analyze the issue. Nevertheless, the record shows that Robaina did

receive written notice of the claimed violations in form of the probation officer’s



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petition and superceding petition. It is also clear that Robaina’s counsel had access

to the probation officer’s report, which disclosed the evidence against him. Next,

the court gave Robaina an opportunity to be heard, and although he did not present

evidence or examine any adverse witnesses after admitting to the violations, his

opportunity to do so was not restricted. Finally, the court was neutral, and

although it did not expressly state the reasons for the revocation, as discussed

below, this is not plain error.

      Before the district court, Robaina’s counsel admitted that Robaina was a

drug addict and that he had been arrested with eight small bags of cocaine. The

government also raised his drug addiction and asserted that he also sold drugs. The

probation officer’s report contained background information about Robaina, and

further reported that eight bags of cocaine had been found in Robaina’s residence,

and that the probation officer had determined that Robaina had moved without

telling him and that he was not working but was dealing drugs.

      While Robaina’s counsel did question the sufficiency of the physical

evidence alone to support the finding that Robaina was dealing drugs, he did not

address the probation officer’s report, and he did not otherwise challenge the

reliability of the findings contained therein. Taking all of the information before

the court into consideration, the finding that Robaina had been dealing drugs was



                                           5
supported. Accordingly, the court was apparently convinced that Robaina was a

danger to the community. In addition, Robaina himself had a chronic problem

with drug addiction, and he had lied to his probation officer. Thus, the court did

not abuse its discretion in sentencing Robaina above the term recommended by the

guidelines’ Chapter 7 policy statements.

                                           II.

      “Where the district court has offered the opportunity to object and a party is

silent or fails to state the grounds for objection, objections to the sentence will be

waived for purposes of appeal, and [we] will not entertain an appeal based upon

such objections unless refusal to do so would result in manifest injustice.” United

States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds,

United States v. Morrill, 984 F.2d 1136, 1137 (11th Cir.1993). Because Robaina

did not raise the objections he raises here before the district court, they are waived

and will be reviewed for plain error only. See United States v. Aguillard, 217 F.3d

1319, 1320 (11th Cir. 2000).

      Plain error exists only where (1) there is an error; (2) the error is plain or

obvious; and (3) the error affects the defendant’s substantial rights. United States

v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).

When these three factors are met, we may then exercise our discretion and correct



                                            6
the error if it seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 736, 113 S.Ct. at 1779.

                                             a.

       According to statute, “[t]he court, at the time of sentencing, shall state in

open court the reasons for its imposition of the particular sentence, and, if the

sentence . . . is [longer than recommended by the guidelines], the specific reason

for the imposition of [such] a sentence . . . , which reasons must also be stated with

specificity in the written order of judgment and commitment.” 18 U.S.C.

§ 3553(c)(2).

       Having carefully reviewed the record and the briefs of the parties, we find

no reversible error. The reasons for the sentence the court imposed are evident

from the sentencing transcript. Furthermore, because Robaina’s argument was not

preserved below, he must show not only that there was error, but that it was also

plain. In order for the error to be plain, there must be binding precedent clearly

holding that it is such. See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir.

2005) (“‘[a]n error cannot meet the ‘plain’ requirement of the plain error rule if it

is not ‘clear under current law.’”). While the Eighth Circuit has addressed the

issue, we have not, nor has the Supreme Court. See United States v. White Face,

383 F.3d 733, 737-39 (8th Cir. 2004). Accordingly, Robaina has not demonstrated



                                             7
plain error in this regard, and his argument is meritless.

                                           b.

      We have consistently held that the policy statements of Chapter 7 are merely

advisory and not binding. Aguillard, 217 F.3d at 1320. However, the district court

is required to consider the statements, and when exceeding them, “must normally

indicate that it considered [them].” United States v. Silva, 443 F.3d 795, 799

(11th Cir. 2006); see 18 U.S.C. § 3553(a)(4) (requiring the district court, when

sentencing after revocation of supervised release, to consider the Chapter 7 policy

statements). In this regard, it is generally “enough that there is some indication the

district court was aware of and considered [the policy statements].” Aguillard, 217

F.3d at 1320.

      Having carefully reviewed the record and the briefs of the parties, we find

no reversible error. Here, the district court expressly relied on the probation

officer’s report when it sentenced Robaina. The report, as discussed above,

analyzed the Chapter 7 policy statements in great detail. Further, the court

acknowledged the Chapter 7 sentence range. Accordingly, the court committed no

plain error, and this argument is meritless. See Silva, 443 F.3d at 799 (holding that

the sentencing court fulfilled the requirement “when it noted that a sentence above

the guidelines range was necessary to respond to [the defendant’s] numerous



                                           8
probation violations”).

                                           c.

      By statute, the district court can revoke a term of supervised release and

sentence a defendant to a term of imprisonment instead, but first must consider

several of the § 3553(a) factors. See 18 U.S.C. § 3583(e). Having carefully

reviewed the record and the briefs of the parties, we find no reversible error.

Because the court’s decision was reasonable under § 3553(a), Robaina has not

shown plain error in this regard. See Scott 426 F.3d at 1329 (no requirement that

the court state that it has explicitly considered the § 3553(a) factors).

                                           d.

      Titled “[c]onditions of supervised release,” 18 U.S.C. § 3583(d) states, in

part, that “[t]he court shall consider whether the availability of appropriate

substance abuse treatment programs, or an individual’s current or past participation

in such programs, warrants an exception in accordance with United States

Sentencing Commission guidelines from the rule of section 3583(g) when

considering any action against a defendant who fails a drug test.” 18 U.S.C.

§ 3583(d). The rest of that section lists all of the conditions of a sentence of

supervised release that a court must order.

      Section 3583(g), which § 3583(d) cross-references, addresses the



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“[m]andatory revocation [of supervised release] for possession of controlled

substance or firearm or for refusal to comply with drug testing.” 18 U.S.C.

§ 3583(g). Under that section, if the defendant, among other things, possesses a

controlled substance or refuses to comply with drug testing while on supervised

release, “the court shall revoke the term of supervised release and require the

defendant to serve a term of imprisonment not to exceed the maximum term of

imprisonment authorized under [§ 3583(e)(3)].” Id.

      Having carefully reviewed the record and the briefs of the parties, we find

no reversible error. As discussed above, while the court did not expressly state its

considerations in sentencing Robaina, both sides argued that he was a drug addict,

and Robaina’s counsel argued that he should have substance abuse treatment.

Accordingly, the court was presented with arguments on this subject which it

considered. We have held that “a court may consider a defendant’s rehabilitative

needs when imposing a specific incarcerative term following revocation of

supervised release.” United States v. Brown, 224 F.3d 1237, 1240 (11th Cir.

2000). However, Robaina has not cited, and research has failed to reveal, any

binding precedent requiring that the court state its consideration on the record. See

also United States v. Hammonds, 370 F.3d 1032, 1039 (10th Cir. 2004) (“There is

no indication the court did not recognize it had discretion to order enrollment in a



                                          10
substance abuse program.”). Having failed to show that the district court

committed plain error in this respect, Robaina’s final argument it meritless.

      Based on the foregoing, Robaina has failed to demonstrate any error on the

district court’s part, and therefore his sentence following the revocation of

supervised release is affirmed.

      AFFIRMED




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