                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 09-12531         ELEVENTH CIRCUIT
                                                    MARCH 30, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

              D. C. Docket No. 08-00255-CR-ORL-35DAB


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ALBERTO DELGADO,

                                                        Defendant-Appellant.


                      ________________________

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

                            (March 30, 2010)

Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:



      Defendant, while on federal probation, was arrested for reckless driving.

The Federal Sentencing Guidelines recommended three to nine months

imprisonment. The District Court sentenced Defendant to a 12-month

imprisonment and three years of supervised release. Defendant appeals the District

Court's upward departure from the sentencing guidelines. We see no reversible

error; we affirm.

      We review a sentence imposed by a district court under a deferential abuse

of discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007).

      Defendant was on federal probation for drug-related offenses when he was

arrested for reckless driving. According to a deputy sheriff who saw the entire

incident, Defendant attempted to veer into another vehicle, a red Toyota, six or

seven times. After opening his door to yell at the driver of the Toyota, Defendant

drove off at a high rate of speed -- in the estimation of the deputy, exceeding 100

miles per hour while weaving through traffic. The deputy followed Defendant

home, where Defendant was arrested.

      At the time of his arrest, Defendant told police that the driver of the red

Toyota was his ex-girlfriend and the mother of his children. He also said that he



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was racing another vehicle driven by her current boyfriend.

      At a hearing before a magistrate judge, Defendant claimed that his reckless

driving was a result of engine trouble and denied knowing the driver of the red

Toyota. Defendant also denied telling the police officer anything about his ex-

girlfriend or her current boyfriend. The magistrate judge found that Defendant's

testimony was "unworthy of belief." The magistrate judge's report and

recommendation said that Defendant had violated his probation.

      At the sentencing hearing in District Court, Defendant accepted the

magistrate judge's report and recommendation without objection. The District

Court then calculated the sentencing guidelines range, again without objection.

Defendant did object to the 12-month sentence.

      Defendant contends that the District Court exceeded the guideline

recommendation because the District Court thought Defendant was harassing his

ex-girlfriend. According to Defendant, this reason was an improper one to extend

the sentence because it was an unreasonable interpretation of the facts. The belief

that Defendant's history with his ex-girlfriend was a reason for departing upwards

was supported some by the final condition on the Supervised Release form: "The

defendant is to have no contact with the victims, Joanie Benitez and Peter

Martinez." The government had brought up a series of Defendant's past domestic



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disturbance incidents during the sentencing hearing, none of which were supported

by evidence or police reports. Defendant contends that the District Court

improperly considered these allegations when the District Court determined

Defendant's sentence.

      The District Court, in an oral explanation of the sentence, explicitly stated

that it considered all of the section 3553(a) factors. It then stated which factors led

it to exceed the guideline recommendation. The District Court concluded that

Defendant (1) was a danger to the community, (2) demonstrated a lack of candor to

both the magistrate judge and the District Court, and (3) showed no remorse for his

acts. The District Court did not mention Defendant's past relationships, other than

to order Defendant to stay away from his ex-girlfriend.

      We first review the District Court for procedural error. Gall v. United

States, 128 S. Ct. 586, 597 (2007). In Gall, the Supreme Court taught that reliance

on clearly erroneous facts would be a procedural error. Id. We see none.

Defendant has not presented sufficient evidence for us to determine that the

District Court relied on clearly erroneous facts.

      The plain language of the District Court shows that it did not rely on the

identity of the driver of the red Toyota in determining Defendant's sentence. If the

District Court had relied on the identity of the driver, the Court, as the finder of



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fact, was entitled to disbelieve Defendant's testimony and credit his statement to

the police officer at the time of Defendant's arrest. See, United States v. De Varon,

175 F.3d 930, 945 (11th Cir. 1999)(en banc) ("As the Supreme Court has

recognized, a trial court's choice between 'two permissible views of the evidence' is

the very essence of the clear error standard of review." (internal citation omitted)).

And because the District Court was entitled to believe that Defendant was being

truthful when he was arrested, relying on that statement would not be reliance on a

clearly erroneous fact.

      Next we assess the substantive reasonableness of the sentence. Gall, 128 S.

Ct. at 597. Based on the three factors the District Court mentioned during the

sentencing hearing, we see no abuse of discretion by the District Court in deviating

upwards from the guidelines.

      Because we cannot say that the District Court failed to follow the proper

sentencing procedures or abused its discretion in the substantive reasonableness of

the sentence, we affirm the District Court's sentence.

      AFFIRMED.




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