               Case: 18-13411    Date Filed: 07/02/2019   Page: 1 of 7


                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                  No. 18-13411
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:18-cr-20076-RNS-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus


EMILIO VAZQUEZ,
a.k.a. Emilio Serralles,

                                                              Defendant-Appellant.

                            ________________________

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

                                   (July 2, 2019)

Before MARCUS, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      Emilio Vazquez appeals the procedural and substantive reasonableness of his

120-month sentence—33 months above the top end of his guideline range—
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imposed after pleading guilty to 1 count of wire fraud, in violation of 18 U.S.C.

§ 1343. On appeal, he argues that his sentence is procedurally unreasonable

because the district court erred by using the statutory maximum sentence of 20

years’ imprisonment as the “starting point” for fashioning his sentence. He also

argues that the sentence is substantively unreasonable.

      We review the reasonableness of a sentence under a deferential

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We

review for plain error a procedural challenge raised for the first time on appeal.

United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When

analyzing a claim under the plain error standard, we will look to see (1) whether

the district court committed an error, (2) that is plain, and (3) that affects

substantial rights, and if so, will reverse only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United States v.

Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003). Plain error cannot be

established where the explicit language of a statute or rule does not resolve an

issue and there is no precedent from the Supreme Court or our Court directly

resolving it. Id. at 1291.

      The third prong is satisfied when the defendant establishes “a reasonable

probability that, but for the error, the outcome of the proceedings would have been

different.” United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005)


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(quotation marks omitted). The Supreme Court has held that, “[i]n most cases, a

defendant who has shown that the district court mistakenly deemed applicable an

incorrect, higher Guidelines range has demonstrated a reasonable probability of a

different outcome.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346

(2016). The Court cautioned that there could be some instances when, despite the

application of an erroneous Guidelines range, a reasonable probability did not exist

because the sentencing court’s explanation made it clear that the court based its

sentence on factors independent of the Guidelines. Id. at 1346-47. However,

where the record is silent as to what the district court might have done had it

considered the correct Guidelines range, the court’s reliance on an incorrect range

in most instances will suffice to show an effect on the defendant’s substantial

rights. Id. at 1347. The Supreme Court has held that, in the ordinary case, the

failure to correct a plain guidelines error that affects a defendant’s substantial

rights will seriously affect the fairness, integrity, and public reputation of judicial

proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018).

      To preserve an objection for appeal, the defendant “must raise that point in

such clear and simple language” that it “inform[s] the district court of the legal

basis for the objection.” United States v. Massey, 443 F.3d 814, 819 (11th Cir.

2006) (quotation marks omitted). In United States v. Carpenter, we held that the

defense counsel’s statement that it objected “to the substantive and procedural


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reasonableness of the sentence” preserved the defendant’s objections that the

district court procedurally erred by failing to consider a number of § 3553(a)

factors, treated the Guidelines as presumptively reasonable, and failed to provide a

sufficient explanation for rejecting his argument for downward variance. 803 F.3d

1224, 1232-34. Nevertheless, we found that the defendant’s objection was

insufficient to preserve his challenge to the special conditions of his supervised

release. Id. at 1237-38. In United States v. Maurice, we held that the defendant’s

objection at sentencing “as to the departure” was insufficient to preserve his three

specific objections to the departure. 69 F.3d 1553, 1556-57 (11th Cir. 1999)

(quotation marks omitted); see also United States v. Cosgrove, 73 F.3d 297, 303

(11th Cir. 1996) (holding that the defendant’s objection at sentencing that it was

“unfair” to inform him at sentencing about the sentencing policy rather than at the

plea stage did not amount to an objection that the sentencing policy violated the

defendant’s due process rights) (quotation marks omitted).

      We use a two-step process to review a sentence’s reasonableness. Gall, 552

U.S. at 51. First, we must confirm “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.” Id. The district court “must treat the


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Guidelines as the starting point and the initial benchmark” in selecting a sentence.

Kimbrough v. United States, 552 U.S. 85, 108 (2007) (quotation marks omitted);

see also Molina-Martinez, 136 S. Ct. at 1346 (providing that “the Guidelines are

not only the starting point for most federal sentencing proceedings but also the

lodestar”). “[D]istrict courts must begin their analysis with the Guidelines and

remain cognizant of them throughout the sentencing process.” Peugh v. United

States, 569 U.S. 530, 541 (2013) (quotation marks omitted). “Even if the

sentencing judge sees a reason to vary from the Guidelines, if the judge uses the

sentencing range as the beginning point to explain the decision to deviate from it,

then the Guidelines are in a real sense the basis for the sentence.” Id. at 542

(quotation marks omitted). The district court is not required to state on the record

that it has explicitly considered each of the § 3553(a) factors or discuss each of

them. United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009). After we

determines that no procedural error occurred, we then examine the substantive

reasonableness of the sentence. Gall, 552 U.S. at 51.

      As an initial matter, Vazquez’s objection to the way in which the sentence

was pronounced and the court’s sentencing rulings was insufficient to preserve his

objection that the district court erred by using the statutory maximum sentence as

the “starting point” for its sentencing determination. See Maurice, 69 F.3d at




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1556-57; Cosgrove, 73 F.3d at 303. Accordingly, we review for plain error. See

Vandergrift, 754 F.3d at 1307.

      The government concedes the district court committed an error and that the

error was obvious. See Lejarde-Rada, 319 F.3d at 1290. However, the

government argues that Vazquez has not satisfied the third prong of the plain error

standard. We disagree. Vazquez has established a reasonable probability that, but

for the error, the outcome of the proceedings would have been different. See

Henderson, 409 F.3d at 1308. Because the record is silent as to what the district

court would have done had it considered both the aggravating and mitigating

factors in reference to the advisory guideline range, Vazquez has shown that the

error affects his substantial rights. See Molina-Martinez, 136 S. Ct. at 1347;

Lejarde-Rada, 319 F.3d at 1290. Finally, the error satisfies the fourth plain-error

prong because failure to correct a plain guidelines error that affects a defendant’s

substantial rights will ordinarily seriously affect the fairness, integrity, and public

reputation of judicial proceeding. See Rosales-Mireles, 138 S. Ct. at 1908. And

because there is nothing in the instant record to distinguish this case from the

ordinary case in this regard, we conclude that Vazquez has satisfied this fourth

prong of the plain error standard. Id. at 1909 & n.4. Because the district court

plainly procedurally erred in sentencing Vazquez, we do not reach the substantive




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reasonableness of his sentence. Accordingly, we vacate and remand for

resentencing.

      VACATED AND REMANDED FOR RESENTENCING.




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