             Case: 15-13064    Date Filed: 04/27/2016   Page: 1 of 6


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13064
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 6:10-cr-00035-JA-GJK-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

RAMIRET B. DAVIS,

                                                            Defendant-Appellant.

                         ________________________

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

                                (April 27, 2016)

Before TJOFLAT, MARCUS and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Ramiret Davis appeals his sentence on only one of his three convictions --

possessing a firearm in furtherance of a crime of violence -- after being found

guilty by jury trial. He was resentenced to 76 months (an upward variance from
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the mandatory minimum sentence of 60 months) to run consecutive to his

sentences on the other counts.         On appeal, he challenges the procedural

reasonableness of his sentence, arguing that: (1) the district court did not

adequately articulate the reasons for its sentence at the resentencing hearing, as

required by 18 U.S.C. § 3553(c); and (2) the district court based the sentence on

erroneous facts, and this error was not harmless. After thorough review, we affirm

in part, and vacate and remand in part.

      We review the sentence a district court imposes for “reasonableness,” which

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,

351 (2007)). When sentencing objections are raised for the first time on appeal,

we consider them under the plain error doctrine. United States v. Garrison, 133

F.3d 831, 848 (11th Cir. 1998). In order to establish plain error, a defendant must

show: (1) error (2) that is plain and (3) affects substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three conditions are met,

then we may exercise our discretion to correct an error if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id. For

a defendant to adequately preserve an objection, he must raise the objection in such

clear and simple language that the trial court may not misunderstand it or mistake

it for a different objection. United States v. Massey, 443 F.3d 814, 819 (11th Cir.


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2006). Under United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006), the

question of whether a district court complied with § 3553(c) is reviewed de novo,

even if the defendant did not object at the sentencing hearing.

       In reviewing sentences for reasonableness, we typically perform two steps.

Pugh, 515 F.3d at 1190. First, we “‘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. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). 1 The court shall, at the time of sentencing, state the reasons for its

imposition of a particular sentence. 18 U.S.C. § 3553(c). If the sentence is outside

the guidelines range, the court must state its specific reasons in a statement of

reasons form. 18 U.S.C. § 3553(c)(2). Section 3553(c) does not require a judge to

specifically state his or her consideration of every § 3553(a) factor or argument, as

long as the record reflects that the judge took into account the factors and the


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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parties’ arguments. Rita, 551 U.S. at 356-58 (2007); accord United States v.

Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010).

      When the district court bases a sentence on clearly erroneous facts without

support in the record, we will vacate and remand for resentencing. United States v.

Barner, 572 F.3d 1239, 1251 (11th Cir. 2009). However, a sentencing error can be

harmless if the record as a whole shows that the error did not affect the district

court’s selection of the sentence imposed. United States v. Jones, 1 F.3d 1167,

1171 (11th Cir. 1993). A court does not abuse its discretion by enhancing a

defendant’s sentence on the basis of undisputed facts contained in the PSI, since

those facts are deemed admitted if not objected to by the defendant. United States

v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).

      Here, the record from the resentencing hearing reflects that the district court

considered the § 3553(a) factors and the arguments of the parties when imposing a

sentence, and that the court stated enough reasons in open court to support the

sentence and to meet the requirements of § 3553(c). The court noted the relevant

circumstances of the offense, the § 3553 factors, the relevant parts of Davis’

criminal history, including probation violations, and the facts in the PSI, which

were adopted as factual findings.      The court also considered the mitigating

evidence presented by Davis. The court expressly took into consideration Davis’s

payment of the special assessment and restitution, and lowered his sentence length


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by eight months because he had paid. Thus, no matter the standard of review we

apply to this issue, the district court did not procedurally err when it articulated the

reasons for Davis’ sentence.

        We agree with Davis, however, that the district court procedurally erred by

basing the sentence on an erroneous fact -- that Davis’ grand theft probation had

been violated, when it had not -- and this error was not harmless.2 As the record

shows, the order following the resentencing hearing explained that the court had

based the upward variance in part on Davis’ inability or unwillingness to comply

with supervision, and listed four probation violations -- including the violation of

Davis’ grand theft probation. According to the PSI, however, the grand theft

probation had not been violated. The court’s statement of reasons also contained

four checked boxes and two written grounds supporting the sentence: (1) the

seriousness of the offense; and (2) the fact that Davis had his probation revoked for

cocaine charges. The court noted that Davis’ probation for grand theft had been

violated for possession with intent to distribute cocaine, although it said that it did

not know the bases for the grand theft probation violation at the time of

resentencing and did not consider the bases in determining the length of the

sentence. In any event, the record is clear that the district court relied at the
2
  We review this issue for abuse of discretion. Davis properly preserved the objection by raising
it in simple terms at the resentencing hearing, fulfilling the requirements of Massey, 443 F.3d at
819. We do not expect him to specifically object to an error at the resentencing hearing that
occurred after the resentencing hearing in the court’s subsequent order and statement of reasons.


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resentencing hearing, at least in part, on Davis’ violation of his grand theft

probation, even though that particular probation had not been violated.

      Because the court placed a large emphasis on Davis’ noncompliance with

supervision in deciding to impose an upward variance, we cannot say that this error

was harmless. Indeed, the government has not shown that the court placed equal

or greater weight on other facts or § 3553 factors. Accordingly, we vacate and

remand for resentencing on Count Three.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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