           Case: 15-15483    Date Filed: 11/28/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15483
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20116-DPG-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                versus

RICHARD ANTHONY SILER,

                                                          Defendant-Appellant.

                      ________________________

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

                            (November 28, 2016)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Following resentencing, Richard Siler appeals his 130-month total sentence,

imposed 15 months above the top of his advisory guideline range, after a jury

found him guilty of use of unauthorized access device, in violation of 18 U.S.C.

§ 1029(a)(2) (Count 1), possession of 15 or more unauthorized access devices, in

violation of 18 U.S.C. § 1029(a)(3) (Count 6), and three counts of aggravated

identity theft, in violation of 18 U.S.C. § 1028A (Counts 3, 4, and 7). On appeal,

Siler argues that his sentence is procedurally unreasonable because the district

court based the upward variance upon a clearly erroneous fact. Specifically, he

contends that the court’s statement that the offense involved “thousands of victims

and their stolen identifications” is clearly erroneous because he did not steal any

personal identification information.

      We normally review claims regarding the procedural unreasonableness of a

sentence for plain error when no objection was raised at sentencing. See United

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

Jones, however, we announced that district courts must “elicit fully articulated

objections, following imposition of sentence, to the court’s ultimate findings of

fact and conclusions of law,” as well as to “the manner in which the sentence is

pronounced.” 899 F.2d 1097, 1102 (11th Cir. 1990), overruled on other grounds

sub nom. United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993) (en banc). A

district court’s concluding question as to whether there is “anything else” is


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insufficient and does not comply with the objection-elicitation requirement.

United States v. Campbell, 473 F.3d 1345, 1348 (11th Cir. 2007). “Where the

district court has not elicited fully articulated objections following the imposition

of sentence, this [C]ourt will vacate the sentence and remand for further sentencing

in order to give the parties an opportunity to raise and explain their objections.”

Jones, 899 F.2d at 1103. Remand may be unnecessary, however, if the record on

appeal is sufficient to enable meaningful appellate review. United States v. Cruz,

946 F.2d 122, 124 n.1 (11th Cir. 1991). In such a case, this Court will review for

preserved error. See United States v. Johnson, 451 F.3d 1239, 1242 (11th Cir.

2006) (reviewing a defendant’s claim de novo, rather than for plain error, because

the Jones violation did not allow him to object in the district court).

      As an initial matter, we hold that the district court violated Jones when it

concluded Siler’s sentencing proceeding by asking, “Anything else for today?”

However, as discussed below, the record is sufficient to allow meaningful appellate

review of the single issue Siler raises on appeal. Thus, despite the Jones violation,

the merits of Siler’s procedural unreasonableness claim will be addressed.

      Because the district court violated Jones, Siler’s claim will be reviewed as if

the objection were preserved, under the abuse-of-discretion standard. See Gall v.

United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed. 2d 445 (2007)

(holding that appellate courts must review all sentences under a deferential abuse-


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of-discretion standard). The district court’s factual findings are reviewed for clear

error. United States v. McQueen, 670 F.3d 1168, 1169 (11th Cir. 2012). A finding

of fact is clearly erroneous when, after reviewing all of the evidence, this Court is

left with a definite and firm conviction that a mistake has been committed. United

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). A factual finding cannot

be clearly erroneous, however, when the factfinder is choosing between two

permissible views of the evidence. United States v. Saingerard, 621 F.3d 1341,

1343 (11th Cir. 2010). Even if we find that the district court considered an

erroneous factor in sentencing, remand is not automatically required; rather,

remand is required only if the sentence was imposed as a result of the error.

Williams v. United States, 503 U.S. 193, 202-03, 112 S. C. 1112, 1120, 117 L. Ed.

2d 341 (1992) (emphasis in original).

      Siler does not argue that his sentence is substantively unreasonable.

Moreover, he does not demonstrate that his sentence is procedurally unreasonable

in light of the record and the 18 U.S.C. § 3553(a) factors. In formulating the

appropriate sentence, the court acknowledged the correctly calculated guideline

range and considered arguments from both parties as well as Siler’s allocution. In

addition, the court articulated specific § 3553(a) factors in justifying the upward

variance. The court’s statement concerning “victims and their stolen

identifications” injected no error into the decision-making process. The language


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may be subject to multiple interpretations and is not clearly erroneous considering

the offenses for which Siler was convicted. In addition, the record demonstrates

that the court did not assign the comment in question great weight. Accordingly,

we affirm the sentence as reasonable.

      AFFIRMED.




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