                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  JUNE 4, 2010
                                No. 09-15747                       JOHN LEY
                            Non-Argument Calendar                    CLERK
                          ________________________

                      D. C. Docket No. 07-20287-CR-KMM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

ROBERTO SANCHEZ,

                                                             Defendant-Appellant.

                          ________________________

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

                                  (June 4, 2010)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      Roberto Sanchez appeals from the sentence imposed following his

conviction for conspiracy to defraud the United States, conspiracy to commit
health care fraud, and soliciting and receiving kickbacks involving a federal health

care program. After a review of the record, we affirm.

      Sanchez pleaded guilty to a five-count indictment charging him with

conspiracy to defraud the United States, in violation of 18 U.S.C. § 371,

conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and

soliciting and receiving kickbacks involving a federal health care program, in

violation of 42 U.S.C. § 1320a-7b. The probation officer determined the guideline

range to be 70 to 87 months’ imprisonment.

      Prior to sentencing, Sanchez filed a memorandum requesting a downward

departure and variance from the guideline range due to his total blindness, diabetes,

and kidney disease. He asserted that his medical conditions were sufficient

punishment and the prison system would be overburdened by and unable to meet

his medical needs. At sentencing, the court considered the arguments and the 18

U.S.C. § 3553(a) sentencing factors, recognized its authority to depart from the

guideline range, and denied both the downward departure and the variance. As the

court explained, a term of imprisonment at the high end of the range reflected the

seriousness of the crimes, promoted respect for the law, and deterred future

conduct. Without asking what sentence the government would recommend, the

court then sentenced Sanchez to 87 months’ imprisonment.

      Sanchez now appeals, arguing that his 87-month sentence is procedurally

                                          2
unreasonable because Fed. R. Crim. P. 32 obligated the court to ask the

government for its position on Sanchez’s sentence.

       The district court must impose a sentence that is both procedurally and

substantively reasonable. Gall v. United States, 552 U.S. 38, 50 (2007). When an

objection is raised for the first time on appeal, we review for plain error. United

States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error

review, we may only correct errors if the defendant establishes: (1) an error,

(2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. A defendant’s

substantial rights are affected if there is a reasonable probability of a different

result. Id. at 1299. There can be no plain error where neither the Supreme Court

nor this court has directly resolved the pertinent issue. United States v. Lejarde-

Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

       Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) provides that “[b]efore

imposing sentence, the court must . . . provide an attorney for the government an

opportunity to speak equivalent to that of the defendant’s attorney.”1

       1
          We note that, generally, this provision protects a right belonging to the government, not
the defendant. See United States v. Davis, 953 F.2d 1482, 1497 n.20 (10th Cir. 1992) (noting the
addition of subsection (i)(4)(A)(iii) to require the government attorney be heard if he so
chooses). In this case, the government has not challenged the court’s failure to elicit its
sentencing recommendation. Moreover, although the rule uses the mandatory language “must,”
the House Judiciary Committee stated that the rule did not require the government to speak, but
was intended to permit the government attorney to do so. See Charles Alan Wright, Nancy King
& Susan Klein, Federal Practice & Procedure: Criminal 3d § 525.1 (2004).

                                                 3
       Although at least one court has held that the failure to elicit a

recommendation from the government is error, United States v. Waknine, 543 F.3d

546, 553 (9th Cir. 2008), this court has never addressed the sentencing court’s

obligations under Rule 32(i)(4)(A)(iii). Because there is no case law from the

Supreme Court or this Circuit, there can be no plain error. Lejarde-Rada, 319 F.3d

at 1291.

       Even if the court plainly erred when it failed to ask the government for its

sentencing recommendation, Sanchez has not shown that his substantial rights have

been affected. Waknine, 543 F.3d at 553 (concluding that the failure to elicit a

recommendation from the government was error, but the defendant had not shown

that the error affected his substantial rights). The court explained its reasons for

imposing a sentence at the high end of the guideline range. Sanchez has made no

showing of any likelihood that, if the court had heard the government’s sentencing

recommendation, his sentence would be any different than the one imposed.2 See

Rodriguez, 398 F.3d at 1299-1300; Waknine, 543 F.3d at 553. Accordingly,

Sanchez’s sentence is

       AFFIRMED.




       2
          Because we conclude there was no error at sentencing, we need not consider Sanchez’s
request to remand the case to a different judge.

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