           Case: 15-13608   Date Filed: 06/14/2016   Page: 1 of 4


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13608
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:15-cr-20264-JAL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MIGUEL MORAN DIAZ,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 14, 2016)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Miguel Moran Diaz appeals his 120-month sentence, imposed above the

applicable guideline range, after pleading guilty to 1 count of being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). On

appeal, Diaz argues that his sentence was substantively unreasonable because the

district court violated his due process rights and Federal Rule of Criminal

Procedure 32 by relying on extra-record congressional testimony without notice of

its intent to do so. Diaz further argues that his sentence was unreasonable because

the district court surprised the parties by sentencing him to the statutory maximum,

even though the government had asked for a high-end guideline sentence as the

“most appropriate” sentence.

      We review the reasonableness of a sentence, including a sentence above the

advisory guideline range, under a deferential abuse-of-discretion standard. United

States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). However, procedural

arguments raised for the first time on appeal in a criminal case are reviewed for

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

      To show plain error, a defendant must demonstrate (1) that the district court

erred, (2) that the error was plain, and (3) that the error affected his substantial

rights. Id. In order for a plain error to have affected substantial rights, it “must

have been prejudicial . . . [and] have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778,


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123 L. Ed. 2d 508 (1993); see also United States v. Rodriguez, 398 F.3d 1291,

1301 (11th Cir. 2005) (“[W]here the effect of an error on the result in the district

court is uncertain or indeterminate—where we would have to speculate—the

appellant has not met his burden of showing . . . that his substantial rights have

been affected.”).

      We examine whether a sentence is substantively reasonable in light of the

totality of the circumstances and the § 3553(a) factors. Overstreet, 713 F.3d at

636. The weight given to any specific § 3553(a) factor is left to the district court’s

sound discretion. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). We

will vacate a sentence only if “left with the definite and firm conviction that the

district court committed a clear error of judgment . . . 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) (quotation

omitted). An above-guideline sentence is not unreasonable simply because the

government recommended a sentence within the guideline range. See United

States v. Early, 686 F.3d 1219, 1221, 1223 (11th Cir. 2012) (upholding an above-

guideline sentence as reasonable though the government had recommended a

sentence at the low end of the guideline range).

      Because Diaz failed to object to the district court’s consideration of

congressional testimony at his sentencing hearing, plain error review applies. See


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Vandergrift, 754 F.3d at 1307. Even assuming that the district court’s review of

extra-record congressional testimony without prior notice constitutes plain error,

Diaz’s claim fails because it is clear that any such error did not affect his

substantial rights as it did not affect the outcome. See Olano, 507 U.S. at 734, 113

S. Ct. at 1778; Rodriguez, 398 F.3d at 1301. The sentencing transcript reflects that

the district court’s primary considerations were the § 3553(a) factors, specifically

the seriousness of the nature and circumstances of Diaz’s offense, the need to

protect the public and promote respect for the law, the need to adequately deter

Diaz and others considering similar conduct, and Diaz’s criminal history.

      To the extent Diaz raises a separate argument of substantive

unreasonableness, the district court did not abuse its discretion in imposing his

above-guideline sentence after considering and weighing several of the § 3553(a)

factors, even where the government recommended a within-guideline sentence.

See Early, 686 F.3d at 1221, 1223. Accordingly, we affirm Diaz’s sentence.

      AFFIRMED.




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