                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                FILED
                                                         U.S. COURT OF APPEALS
                                    No. 09-11244           ELEVENTH CIRCUIT
                                                            DECEMBER 18, 2009
                                Non-Argument Calendar
                                                            THOMAS K. KAHN
                              ________________________
                                                                 CLERK

                    D. C. Docket No. 00-00306-CR-T-26-MAP

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,

                                       versus

JOSHUA MOJICA,
a.k.a. Ramiro Josh Salazar,

                                                           Defendant-Appellant.


                              ________________________

                                    No. 09-11246
                                Non-Argument Calendar
                              ________________________

                    D. C. Docket No. 08-00298-CR-T-26-TBM

UNITED STATES OF AMERICA,


                                                             Plaintiff-Appellee,
                                           versus

JOSHUA MOJICA,

                                                                     Defendant-Appellant.

                              ________________________

                     Appeals from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                   (December 18, 2009)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

       On August 23, 2000, a Middle District of Florida grand jury returned a

three-count indictment charging appellant in Count 1 with armed bank robbery and

in Counts 2 and 3 with bank robbery.1 He pled guilty pursuant to a plea agreement

to Counts 1 and 3 and the district court sentenced him to concurrent prison terms of

84 months and a 36 months’ term of supervised release. He served his prison

sentence and commenced his term of supervised release in October 2006.

       On June 28, 2008, appellant attempted to rob two banks in Tampa, Florida.

On July 7, 2008, the district court’s probation office, having learned of these



       1
         The Count 1 offense occurred on July 19, 2000 in Clearwater, Florida; the Count 2
offense occurred on August 2, 2000 in Temple Terrace, Florida; the Count 3 offense occurred on
August 3, 2000 in Tampa, Florida.

                                              2
events, obtained a warrant for his arrest for violating the conditions of his

supervised release, and on July 16, 2008, a grand jury indicted him, in two counts,

for the attempted bank robberies.

      On August 27, 2008, appellant was arrested and taken into custody. On

December 22, 2008, he pled guilty pursuant to a plea agreement to Count One of

the July 16 indictment. On March 6, 2009, he appeared before the district court for

sentencing on Count One and for a hearing on whether to revoke his supervised

release. The court revoked the supervised release and sentenced appellant to

prison for 36 months. The court then sentenced appellant to a consecutive 240

months’ imprisonment on Count One. He now appeals these sentences. Regarding

the Count One sentence, he contends that the sentence was procedurally and

substantively unreasonable because the district court failed to make its reasoning

sufficiently clear and because a within-guideline sentence would have been

sufficient to address the concerns the court expressed. He further contends that, in

light of the severity of the combined sentences, the court should have given notice

of its intent to vary upward from the Guidelines sentence range and should have

granted a continuance before imposing the variance.

                                           I.




                                           3
       We review a sentence for reasonableness in a two-step process. First, we

must

       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 [18 U.S.C.] § 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. Assuming that the district court’s sentencing
       decision is procedurally sound, [we] should then consider the
       substantive reasonableness of the sentence imposed under an abuse-
       of-discretion standard.

Gall v. United States, 552 U.S. 38, __, 128 S.Ct. 586, 597, 169 L.Ed.2d 445

(2007).2

       In this case, no procedural error occurred. The district court adopted the

undisputed facts and Guidelines sentence range set forth in the presentencing

investigation report (PSI) and in the Probation Memorandum detailing appellant’s

violation of the terms of his supervised release. The court acknowledged the

advisory nature of the Sentencing Guidelines, reviewed the § 3553(a) factors in




       2
          Appellant failed to present his procedural-error objection to the district court. We
therefore consider his objection for plain error only. See United States v. Massey, 443 F.3d 814,
818 (11th Cir. 2006) (addressing the clarity of an objection to a guideline calculation). In such a
situation, the appellant must show (1) an error that (2) is plain, (3) affects substantial rights, and
(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). We find no
procedural error here, much less plain error.


                                                  4
detail,3 explained why each one supported its position that statutory-maximum

sentences were the “only” reasonable sentences under the circumstances, and

explicitly referenced the statements appellant had made on his own behalf. Taken

as a whole, the record shows that the court “considered the parties’ arguments and

ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority.”

Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203

(2007).

       As for substantive reasonableness, the district court took into account

appellant’s drug addiction, his failure to adhere to his various treatment plans while

in prison and on supervised release, and his own admission that he cared about

nothing and no one while under the influence of drugs. The court also noted that

he had committed each of his offenses while on probation or supervised release for

the previous one, that the offenses had escalated from theft to armed robbery, and

that he had taken advantage of the lenience that had been shown to him in the past.


       3
          Those factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need 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
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to the victims. Id. (discussing § 3553(a)). The sentence must be no greater than necessary to
punish, deter, protect the public, and provide the training and care outlined in the statute.
§ 3553(a).


                                                 5
It determined that nothing but incarceration would protect society from him, so he

needed to be imprisoned for as long as possible. Although he argues that a

sentence within his career offender guideline range would have been reasonable

and sufficient, he has not proved that the district court made a clear error of

judgment in the weight it gave to the frequency of his recidivism, the severity of

his crimes, and his apparent inability or unwillingness to break the drug addiction

to which he attributed his criminal conduct. The district court did not abuse its

discretion by varying upward to the statutory maximum sentences.

                                           II.

      Appellant objected in the district court to the lack of notice of the court’s

intention to vary from the guideline sentence range, but he did not request a

continuance. To the extent that he argues that he was entitled to notice, we review

the district court’s conclusions of law de novo. United States v. DeVegter, 439

F.3d 1299, 1303 (11th Cir. 2006). To the extent that he argues that the district

court should have granted a continuance sua sponte, we review for plain error only.

See Massey, 443 F.3d at 818 (applying plain error review to an unclear objection to

a guideline calculation); United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000) (applying plain error where the defendant failed to raise a particular

sentencing argument). To find plain error, we would have to conclude that the



                                           6
court, acting on its own initiative, should have postponed sentencing. There is

nothing in the record that indicating a need for a postponement. In short, there

could be no plain error here.

      When a district court is considering applying a departure not already

identified in the PSI or other presentencing submissions, Federal Rule of Criminal

Procedure 32 requires the court to give the parties reasonable notice of its intention

to do so. Irizarry v. United States (“Irizarry II”), 553 U.S. __, 128 S.Ct. 2198,

2200, 171 L.Ed.2d 28 (2008) (discussing Rule 32). No such notice requirement

applies to variances imposed under the § 3553(a) factors because “parties are

inherently on notice that the [S]entencing [G]uidelines range is advisory . . . .

[Therefore,] parties cannot claim unfair surprise or inability to present informed

comment.” United States v. Irizarry (“Irizarry I”), 458 F.3d 1208, 1212 (11th Cir.

2006), aff’d, Irizarry II, 553 U.S. at __, 128 S.Ct. at 2201-02.

      Sound practice dictates that judges should ensure that the parties have all of

the relevant information before the hearing and should give them an adequate

opportunity to debate the relevant issues. Irizarry II, 553 U.S. at __, 128 S.Ct. at

2203. The Supreme Court has “recognize[d] that there will be some cases in which

the factual basis for a particular sentence will come as a surprise to a defendant or

the [g]overnment.” Id. at __, 128 S.Ct. at 2203 (emphasis added). In such



                                           7
situations, though, “[t]he more appropriate response . . . is not to extend the . . .

notice requirement categorically, but rather for a district judge to consider granting

a continuance when a party has a legitimate basis for claiming that the surprise was

prejudicial.” Id. In the ordinary case, counsel

       will anticipate most of what might occur at the sentencing
       hearing—based on the trial, [PSI], the exchanges of the parties
       concerning the [PSI], and the preparation of mitigation evidence.
       Garden variety considerations of culpability, criminal history,
       likelihood of re-offense, seriousness of the crime, nature of the
       conduct and so forth should not generally come as a surprise . . . .

Id. (quoting United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) (en

banc) (first alteration in original)).

       In this case, the district court applied a variance pursuant to § 3553(a), not a

departure pursuant to the Guidelines. The district court did not err in finding that it

had not been required to provide notice of its intent to do so. Appellant’s argument

that the interests of justice required notice under the circumstances is without

merit, as he has not alleged that “the factual basis for [the] particular sentence . . .

c[a]me as a surprise” or that the district court relied on anything other than

“[g]arden variety considerations of culpability, criminal history, likelihood of re-

offense, seriousness of the crime, nature of the conduct and so forth” in reaching its

decision. Irizarry II, 553 U.S. at __, 128 S.Ct. at 2203.

       For the foregoing reasons, appellant’s sentences are

                                             8
AFFIRMED.




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