           Case: 12-13792   Date Filed: 08/08/2013   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13792
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:09-tp-20201-MGC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MANUEL A. BEYRA,

                                                          Defendant-Appellant.

                       ________________________

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

                            (August 8, 2013)

Before DUBINA, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-13792     Date Filed: 08/08/2013     Page: 2 of 11


      Appellant Manuel Beyra, proceeding pro se, appeals the district court’s

order revoking his supervised release and sentencing him to 33 months’

imprisonment for violating a condition of his supervised release. On appeal, Beyra

argues that the district court lacked jurisdiction to revoke his supervised release

and sentence him to a term of imprisonment because he had an outstanding order

of removal. Beyra also argues that his attorney rendered ineffective assistance of

counsel by failing to argue adequately that Beyra, a citizen of the Cayman Islands,

should be removed from the United States instead of being imprisoned. Finally, he

contends that his 33-month sentence is procedurally and substantively

unreasonable.

                                           I.

      Beyra argues that the district court lacked jurisdiction to revoke his

supervised release because he had an outstanding order of removal, and that the

district court should have instead stayed his proceedings and referred his case to

Immigration and Customs Enforcement.

      We review de novo our own subject matter jurisdiction. United States v.

Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). However, where a defendant

fails to object to an error before the district court, we review the alleged error for

plain error. See United States v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006). To

establish plain error, a defendant must show that there was an “(1) error, (2) that is


                                           2
              Case: 12-13792      Date Filed: 08/08/2013    Page: 3 of 11


plain and (3) that affects substantial rights. If all three conditions are met, [this]

court may then exercise its discretion to notice a forfeited error, but only if (4) the

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

proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007)

(internal quotation marks omitted). “An error that affects substantial rights is one

that affected the outcome of the district court proceedings.” United States v.

Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005) (internal quotation marks

omitted). “An error is plain if it is obvious and clear under current law.” United

States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).

      Because Beyra did not preserve his jurisdictional argument, we review this

claim for plain error. Beyra has failed to show that the district court committed

plain error by revoking his supervised release. Factually, this argument is based on

information outside of the record. Moreover, Beyra does not cite to any binding

authority holding that the district court lacked jurisdiction to revoke his supervised

release, or that the district court should have stayed his revocation proceedings and

referred his case to Immigration and Customs Enforcement. As such, Beyra

cannot establish that the district court plainly erred by revoking his supervised

release pursuant to 18 U.S.C. § 3583(e)(3). To the extent that Beyra is challenging

the initial imposition of his supervised release term, we conclude that his argument

is unavailing because he cannot challenge the validity of his original sentence—


                                            3
              Case: 12-13792     Date Filed: 08/08/2013     Page: 4 of 11


which included five years of supervised release—during his supervised release

revocation proceedings. See United States v. Almand, 992 F.2d 316, 317 (11th Cir.

1993).

                                           II.

      Beyra argues that his attorney rendered ineffective assistance of counsel by

failing to explain adequately to the district court that he should be removed from

the United States instead of imprisoned.

      “[I]t is settled law in this circuit that a claim of ineffective assistance of

counsel cannot be considered on direct appeal if the claims were not first raised

before the district court and if there has been no opportunity to develop a record of

evidence relevant to the merits of the claim.” United States v. Franklin, 694 F.3d

1, 8 (11th Cir. 2012) (internal quotation marks omitted). “The preferred means for

deciding a claim of ineffective assistance of counsel is through a 28 U.S.C. § 2255

motion even if the record contains some indication of deficiencies in counsel’s

performance.” United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010)

(internal quotation marks omitted). However, if the record is sufficiently

developed, we may consider such a claim on direct appeal. Id.

      The record is not sufficiently developed for us to consider Beyra’s

ineffective assistance of counsel claim. See Franklin, 694 F.3d at 8. Because

Beyra did not raise this challenge before the district court, the record does not


                                            4
              Case: 12-13792     Date Filed: 08/08/2013    Page: 5 of 11


contain any facts upon which we can determine whether defense counsel was

ineffective. See id.

                                          III.

      Beyra argues that his sentence is procedurally and substantively

unreasonable. He contends that the district court procedurally erred by failing to

consider the 28 U.S.C. § 3553(a) factors and by not explaining its reasons for

imposing the 33-month sentence. He also argues that his sentence is substantively

unreasonable because it is harsher than necessary.

      We generally review a sentence imposed upon revocation of supervised

release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07

(11th Cir. 2006). When reviewing for reasonableness, we generally apply the

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct.

586, 594 (2007). We review de novo whether a district court complied with 18

U.S.C. § 3553(c)(1) by explaining its reasons for imposing a given sentence, even

if the defendant did not object before the district court. United States v. Bonilla,

463 F.3d 1176, 1181 (11th Cir. 2006). However, as noted above, all other

sentencing errors not objected to in the district court are reviewed for plain error.

Castro, 455 F.3d at 1251.

      When revoking a defendant’s term of supervised release, 18 U.S.C.

§ 3583(e) instructs courts to consider certain 18 U.S.C. § 3553(a) sentencing


                                           5
              Case: 12-13792     Date Filed: 08/08/2013    Page: 6 of 11


factors in determining an appropriate sentence. See 18 U.S.C. § 3583(e).

Specifically, sentencing courts must consider: (1) “the nature and circumstances of

the offense and the history and characteristics of the defendant”; (2) the need for

deterrence; (3) the need to protect the public; (4) the need to provide the defendant

with educational or vocational training, medical care, or other correctional

treatment; (5) the kinds of sentences available and the applicable sentencing range;

(6) any pertinent policy statements; (7) the need to avoid unwarranted sentencing

disparities; and (8) the need to provide restitution to any victims. See 18 U.S.C.

§ 3583(e); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7). “For sentences

imposed upon revocation of supervised release, the recommended sentencing range

is based on the classification of the conduct that resulted in the revocation and the

criminal history category applicable at the time” of the defendant’s original

sentencing. United States v. Campbell, 473 F.3d 1345, 1348-49 (11th Cir. 2007)

(citing U.S.S.G. §§ 7B1.1, 7B1.4).

      In evaluating the reasonableness of a sentence, we follow a two-step process

by first determining whether the sentence is procedurally reasonable, and then

determining if the sentence is substantively reasonable. Gall, 552 U.S. at 51, 128

S. Ct. at 597. A sentence may be procedurally unreasonable if the sentencing court

fails to consider the factors set forth in 18 U.S.C. § 3553(a), or fails to adequately

explain the chosen sentence. 552 U.S. at 51, 128 S. Ct. at 597. One of the


                                           6
              Case: 12-13792     Date Filed: 08/08/2013    Page: 7 of 11


§ 3553(a) factors that the court must consider at a revocation hearing is the

sentencing range established by the guidelines or policy statements issued by the

Sentencing Commission. See Campbell, 473 F.3d at 1348-49 (declining to address

the reasonableness of a sentence because the district court never explicitly

mentioned during the revocation hearing the guideline range or the criminal

classification of the violation for which it revoked supervised release). However,

given the advisory nature of the Guidelines, it is sufficient if there is “some

indication that the district court was aware of and considered the Guidelines.” Id.

at 1349 (internal quotation marks omitted). As such, the district court need not

discuss or explicitly state on the record each § 3553(a) factor. United States v.

Scott, 426 F.3d 1324, 1330 (11th Cir. 2005).

      Section 18 U.S.C. § 3553(c) provides that a district court is required to give

reasons for its sentence and to state, in open court, its reasons for imposing a

particular sentence if the sentence “is of the kind, and within the range

[recommended by the Guidelines] and that range exceeds 24 months.” 18 U.S.C.

§ 3553(c)(1). However, “when a judge decides simply to apply the Guidelines to

a particular case, doing so will not necessarily require lengthy explanation.

Circumstances may well make clear that the judge rests his decision upon the

Commission’s own reasoning that the Guidelines sentence is a proper sentence.”

Rita v. United States, 551 U.S. 338, 356-57, 127 S. Ct. 2456, 2468, (2007). The


                                           7
                Case: 12-13792   Date Filed: 08/08/2013   Page: 8 of 11


appropriateness of how much to write and what to say depends on the

circumstances of the case, and “[t]he law leaves much, in this respect, to the

judge’s own professional judgment.” 551 U.S. at 356, 127 S. Ct. at 2468.

      When review for substantive reasonableness is appropriate, we examine the

totality of the circumstances and ask “whether the statutory factors in § 3553(a)

support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008). In order to vacate a sentence, we must have “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) (internal quotation marks omitted).

Ordinarily, we expect, but do not presume, a sentence within the guidelines range

to be reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

“[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).” Id.

      While the government argues that Beyra’s procedural reasonableness

arguments should be reviewed for plain error, we will only apply plain error

review to Beyra’s argument that the district court failed to consider the 18 U.S.C.

§ 3553(a) factors. As to Beyra’s argument that the district court failed to explain


                                          8
              Case: 12-13792     Date Filed: 08/08/2013    Page: 9 of 11


its reasons for imposing the 33-month sentence, we will review this de novo. See

Bonilla, 463 F.3d at 1181. We review Beyra’s substantive reasonableness

argument for abuse of discretion. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      With respect to procedural reasonableness and Beyra’s argument that the

district court did not consider the § 3553(a) factors, the district court referenced the

applicable advisory guideline range—by stating that Beyra’s criminal history

category of II yielded an advisory guideline range of 27 to 33 months’

imprisonment. See Campbell, 473 F.3d at 1348 (explaining that a district court

must reference the advisory guideline range during a revocation hearing). The

district court also stated that the “guideline range adequately reflects the factors in

3553,” and that it had considered both parties’ statements, including the

government’s statement that focused on Beyra’s past criminal history and

recidivism, and the violation report. Because this was sufficient, Beyra cannot

show that the district court committed plain error. See Scott, 426 F.3d at 1330.

      Beyra has also failed to show that the district court erred by not explaining

its reasons for imposing a 33-month within Guidelines sentence. This was a

supervised release revocation hearing, in which Beyra admitted he violated a

mandatory condition of his supervised release. As such, the circumstances did not

“necessarily require [the district court to provide a] lengthy explanation” of its




                                           9
             Case: 12-13792      Date Filed: 08/08/2013    Page: 10 of 11


reasons for imposing a within-guidelines sentence. See Rita, 551 U.S. at 356-57,

127 S. Ct. at 2468.

      Turning to Beyra’s argument that his sentence is substantively unreasonable,

Beyra has not demonstrated that the district court abused its discretion by imposing

a 33-month sentence. Although we do not presume that a within-guidelines

sentence is reasonable, we expect Beyra’s 33-month sentence to be reasonable

given that it was within the advisory guideline range of 27-33 months’

imprisonment. See Talley, 431 F.3d at 788. The district court also stated that it

believed the guideline range adequately reflected the § 3553(a) factors. Moreover,

the record reflects that the district court considered Beyra’s history and

characteristics because it stated that it had considered the parties’ statements,

including the government’s description of Beyra’s criminal background, and

Beyra’s description of his immigration history and prior arrests and convictions.

      Beyra’s argument that the district court erred by not giving him a sentence

with credit for time-served is also without merit, as the Bureau of Prisons, and not

the district court initially calculates any credit for time served. See United States v.

Wilson, 503 U.S. 329, 332-33, 337, 112 S. Ct. 1351, 1353-54, 1356 (1992)

(holding that the Bureau of Prisons and not the district court at the sentencing

hearing, calculates and administers a defendant’s credit for time-served). To the

extent that Beyra argues that the district court should have ordered him removed


                                           10
             Case: 12-13792     Date Filed: 08/08/2013   Page: 11 of 11


from the United States, the district court lacked the authority to do so. See United

States v. Mejia, 154 F.3d 1297, 1298 (11th Cir. 1998) (holding that the district

court lacks authority to order removal from the United States as a special condition

of supervised release).

      For the above stated reasons, we affirm the district court’s order revoking

Beyra’s supervised release and Beyra’s sentence.

      AFFIRMED.




                                         11
