                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-14215            ELEVENTH CIRCUIT
                                        Non-Argument Calendar         OCTOBER 3, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 1:09-cr-20963-UU-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

RAUL FELIX GILLETTE,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                     ________________________

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

                                           (October 3, 2011)

Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

         Raul Gillette appeals his convictions, based on a guilty plea, and sentences

for persuading, inducing, or enticing a minor to engage in sexually explicit
conduct for the purpose of producing any visual depiction of such conduct, in

violation of 18 U.S.C. § 2251(a), (e); and knowing possession of a camera and

memory card which contained any visual depiction of a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). On appeal,

Gillette argues that the district court committed plain error by failing to inform

him of the consequences of his guilty plea, specifically that Fed.R.Crim.P.

11(b)(1)(M) required the district court to calculate his applicable guideline

sentencing range and to consider possible departures under the Sentencing

Guidelines and other sentencing factors under 18 U.S.C. § 3553(a).       He also

asserts that his sentences are procedurally and substantively unreasonable, because

the district court did not adequately consider his mental health, his history, and the

lengthy statutory minimum sentences already required in determining an

appropriate sentence.

                                           I

      When a defendant fails to object to a perceived Rule 11 violation at the

district court, we review for plain error only. United States v. Brown, 586 F.3d

1342, 1345 (11th Cir. 2009), cert. denied, 130 S. Ct. 2403 (2010). The defendant

bears the burden of proving that (1) there was an error; (2) it was plain; and (3) it

affected his substantial rights. United States v. Moriarty, 429 F.3d 1012, 1019

                                           2
(11th Cir. 2005). If the defendant can demonstrate these three elements, we will

reverse the error if it seriously affected the fairness, integrity, or public reputation

of the judicial proceedings. Id. In addition, “a defendant who seeks reversal of his

conviction after a guilty plea, on the ground that the district court committed plain

error under Rule 11, must show a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83, 124 S. Ct. 2333, 2340 (2004).

      When accepting a guilty plea, the district court must address three core

principles underlying Rule 11: (1) the defendant must enter his guilty plea free

from coercion; (2) he must understand the nature of the charges; and (3) he must

know and understand the consequences of his guilty plea. United States v.

Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000). In keeping with this third

core principle, “Rule 11(b)(1) provides a list of rights and other relevant matters

about which the court is required to inform the defendant prior to accepting a

guilty plea.” Moriarty, 429 F.3d at 1019. Rule 11 specifically requires the district

court to inform the defendant that, in determining his sentence, the court has an

obligation “to calculate the applicable sentencing-guideline range and to consider

that range, possible departures under the Sentencing Guidelines, and other

sentencing factors under 18 U.S.C. § 3553(a).” Fed.R.Crim.P. 11(b)(1)(M). Prior

                                            3
to the 2007 amendment that added the reference to the statutory factors, we have

held that Rule 11’s requirements are met if the district court asked the defendant

whether he knew about the Sentencing Guidelines and had discussed with his

attorney the effect of the Sentencing Guidelines on his sentence. See United

States v. Mosley, 173 F.3d 1318, 1328 (11th Cir. 1999).

      The district court did not err, plainly or otherwise, by failing to inform

Gillette of the consequences of his guilty plea. The only part of the plea colloquy

that Gillette challenges is the district court’s discussion of the Sentencing

Guidelines. However, the district court specifically discussed the fact that the

court was not yet able to determine Gillette’s advisory guideline range, that the

probation office would prepare a presentence investigation report prior to his

sentencing hearing that would contain a recommendation regarding Gillette’s

guideline range, that the court would consider that advisory guideline range but

had the authority to impose a sentence that was above or below the guideline

range, and that Gillette faced a statutory minimum sentence of 15 years’

imprisonment and a statutory maximum of 40 years’ imprisonment. The court also

specifically asked if Gillette had had the opportunity to talk with his attorney

about how the Sentencing Guidelines might apply in his case, and Gillette stated

that he had. Thus, Gillette’s plea colloquy more than met the minimum

                                          4
requirements of Rule 11. See Mosley, 173 F.3d at 1328.

      In addition, Gillette does not argue that the allegedly missing information

materially affected his plea calculus. Given his failure to seek relief in the district

court, nothing in this record suggests that the alleged error affected Gillette’s

substantial rights.

                                           II

      We review the reasonableness of a sentence, “[r]egardless of whether the

sentence imposed is inside or outside the Guidelines range,” under a deferential

abuse of discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128

S. Ct. 586, 597 (2007). We reverse only if “left with 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), cert. denied, 131 S. Ct. 1813 (2011).

The burden of establishing that a sentence is unreasonable lies with the party

challenging the sentence. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.

2008).

      Procedural reasonableness includes whether the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the §

                                           5
3553(a) factors, did not select a sentence based upon clearly erroneous facts, and

adequately explained the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

Once we determine that a sentence is procedurally sound, we examine whether the

sentence was substantively reasonable in light of the totality of the circumstances

and the § 3553(a) factors. Id.

      A court at the time of sentencing must “state in open court the reasons for

its imposition of the particular sentence, and if the sentence [is outside the

guidelines range, explain] the specific reason for the imposition of a sentence

different from [the guidelines range].” 18 U.S.C. § 3553(c), (c)(2). However, the

court is not required to “state on the record that it has explicitly considered each of

the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.

Talley, 431 F.3d 784, 786 (11th Cir. 2005).

      A sentence may be substantively unreasonable where a district court

“unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent

§ 3553(a) factors, selected the sentence arbitrarily, or based the sentence on

impermissible factors.” United States v. Sarras, 575 F.3d 1191, 1219 (11th Cir.

2009). A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. United States v. Gonzales, 550 F.3d 1319,

1324 (11th Cir. 2008).

                                           6
      Gillette’s sentences were both procedurally and substantively reasonable.

The court explicitly considered Gillette’s argument that his criminal history was

overstated and varied downward to assign him a criminal history category of IV,

rather than the V initially calculated by the probation officer in the PSI. Although

Gillette argues that the court should have considered his history of being sexually

abused as a child and his history of bipolar disorder, the court stated that it had

considered the parties’ statements and the presentence investigation report in

imposing Gillette’s sentences. Furthermore, the court also stated that it had

considered the § 3553(a) factors. The fact that Gillette’s sentence was well below

the statutory maximum on Count 1 also supports a determination that his sentences

were reasonable. See Gonzales, 550 F.3d at 1324.

      AFFIRMED.1




      1
             Gillette’s request for oral argument is denied.

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