             Case: 13-11345     Date Filed: 10/22/2013   Page: 1 of 8


                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                  No. 13-11345
                              Non-Argument Calendar
                            ________________________

                    D.C. Docket No. 1:09-cr-20397-DLG-1


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

FU QIAN DANNY PAN,
a.k.a. Kin Yip Cheung,
a.k.a. Danny Fu Qian Pan,

                                                             Defendant-Appellant.

                            ________________________

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

                                (October 22, 2013)

Before PRYOR, FAY, and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Fu Qian Danny Pan, proceeding with the assistance of counsel, appeals the

denial of his 18 U.S.C. § 3583(e)(1) motion for early termination of supervised

release and the denial in part of his motion for reconsideration of the denial of his

§ 3583(e)(1) motion. We affirm the court’s rulings on Pan’s motions, but remand

for the purpose of correcting a clerical error in the judgment.

                                          I.

      In 2009, Pan pled guilty to conspiracy to transport and harbor aliens, in

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and the district court sentenced him to

23 months of imprisonment and 3 years of supervised release. In January 2013,

Pan filed a motion for early termination of supervised release, pursuant to

§ 3583(e)(1). Pan asserted that he had served 22 of the 36 months of his term of

supervised release without incident, such that the early termination of his

supervised release would be in the interest of justice. Pan was employed full time

at a hotel’s kitchen and asserted that he was compliant with the requirements of his

supervision. The government responded in opposition to Pan’s motion for early

termination.

      The district court stated it had reviewed the record and was denying Pan’s

motion based on the government’s and the U.S. Probation Office’s (“USPO”)

opposition to Pan’s motion for early termination. The court stated that it had been




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advised that Pan had prior convictions for money laundering and assault, and early

termination was “not appropriate.”

      Pan filed a motion for reconsideration of his motion for early termination.

Pan asserted that the court, in denying his motion, had relied on the USPO’s

opposition to his motion, but he did not have notice of the USPO’s opposition. He

requested the court to direct the USPO to provide Pan with the reasons for its

opposition, so that he could have an adequate opportunity to respond to any

concerns raised.

      The court granted Pan’s motion in part and made available the position of

the USPO to Pan. However, the court otherwise denied Pan’s motion for

reconsideration. Attached to the court’s order was a memorandum prepared by the

USPO. In the memorandum, the USPO stated, inter alia, that Pan’s criminal

history included convictions for money laundering and simple assault and

requested the court deny Pan’s motion for early termination.

                                         II.

      On appeal, Pan argues that his due process rights were violated when the

district court denied his motion for early termination and denied in part his motion

for reconsideration by relying on the USPO’s opposition to the early termination of

his term of supervised release because he never received notice of the USPO’s

position and was denied an opportunity to respond. Additionally, the USPO’s


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opposition to Pan’s motion for early termination raised issues that he was not given

an opportunity to address. In support of his argument, Pan cites United States v.

Jules, 595 F.3d 1239 (11th Cir. 2010), addressing the due process protections that

apply in a proceeding addressing a motion for a sentence reduction under 18

U.S.C. § 3582(c)(2). Pan further argues that the record is unclear as to whether the

district court properly considered the 18 U.S.C. § 3553(a) factors. Pan argues that

§ 3583(e)(1) provides that the court must consider the § 3553(a) factors in ruling

on a motion for early termination. Pan argues that, even if the court did consider

the § 3553(a) factors, it failed to properly weigh the factors by giving unreasonable

weight to his criminal history.

      We review the denial of a motion for early termination of supervised release

under § 3583(e)(1) for an abuse of discretion. See United States v. Cunningham,

607 F.3d 1264, 1266 (11th Cir. 2010) (reviewing the denial of a motion revoking

supervised release under § 3583(e)(3) for an abuse of discretion). A district court

abuses its discretion where it fails to apply the proper legal standard or follow

proper procedures in making its determination under § 3583(e)(1). Jules, 595 F.3d

at 1241–42. However, where an appellant did not raise an issue before the district

court, we review only for plain error. United States v. Jones, 289 F.3d 1260, 1265

(11th Cir. 2002). “Plain error occurs if (1) there was error, (2) that was plain,

(3) that affected the defendant’s substantial rights, and (4) that seriously affected


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the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Wright, 607 F.3d 708, 715 (11th Cir. 2010) (quotation omitted). For an error to

affect substantial rights, it must have affected the outcome of the district court

proceedings. United States v. Henderson, 409 F.3d 1293, 1308 (11th Cir. 2005).

The defendant has the burden of showing prejudice as to the third part of the plain

error analysis. United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).

      A court “may, after considering the [§ 3553(a) factors,] . . . terminate a term

of supervised release,” pursuant to the provisions of the Federal Rules of Criminal

Procedure, if the defendant has already served at least one year of supervised

release, and “if [the court] is satisfied that such action is warranted by the conduct

of the defendant released and the interest of justice.” 18 U.S.C. § 3583(e)(1). We

have observed, in the context of a district court’s determination as to whether to

resentence a defendant under § 3582(c)(2), that “the district court must consider

the § 3553(a) factors” in ruling on a motion to reduce sentence, and that the district

court “is not required to articulate the applicability of each factor, as long as the

record demonstrates that the pertinent factors were taken into account by the

district court.” United States v. Douglas, 576 F.3d 1216, 1219 (11th Cir. 2009)

(quotations omitted). “However, if it is not possible to determine from the record

whether the district court considered the § 3553(a) factors, we must vacate and

remand the case to the district court.” Id. This is because, without an indication


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that the court considered these factors, we “cannot engage in meaningful appellate

review and must vacate and remand.” Id. at 1220.

      In the original sentencing context, the Fifth Amendment’s guarantee of due

process assures the defendant that he will be given adequate notice and an

opportunity to contest the facts relied upon to support his criminal penalty. Jules,

595 F.3d at 1242. Further, in a § 3582(c)(2) proceeding, each party must be given

notice of and an opportunity to contest new information relied on by the district

court. Id. at 1245. However, courts do not need to permit re-litigation of any

information that was available at the original sentencing proceeding, and a party is

not entitled to “any response” where the court does not intend to rely on new

information. Id.

      Here, Jules does not support Pan’s argument that he had a right to notice and

to be heard as to the USPO’s opposition to his motion for early termination. The

USPO’s opposition to Pan’s motion only included information that was available at

the original sentencing proceeding, and nothing in the record indicates that the

district court relied on new information in denying Pan’s motion for early

termination. Applying Jules to the instant case, the district court was not required

to permit re-litigation of, or an opportunity to respond to, information available at

the original sentencing hearing, such as information pertaining to Pan’s prior

convictions.


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      Next, plain error review applies to Pan’s argument that the record does not

show that the district court considered the § 3553(a) factors, because Pan never

mentioned the § 3553(a) factors in his motion or otherwise argued that those

factors justified early termination of supervised release, including in his motion for

reconsideration. See Jones, 289 F.3d at 1265. Assuming, arguendo, that Pan has

shown error that is plain as to this issue, he has not met the third element of the

plain error standard because he fails to allege or present any evidence indicating

that he would have received a different sentence if the district court considered the

§ 3553(a) factors. See Henderson, 409 F.3d at 1308. Pan does not explain, which,

if any, § 3553(a) sentencing factor would have compelled the court to have

imposed a lesser sentence if it had considered the § 3553(a) factors. Thus, Pan has

failed to satisfy his burden of showing plain error. See Eckhardt, 466 F.3d at 948.

Accordingly, we affirm the denial of his motion for early termination and the

denial in part of his motion for reconsideration.

                                          III.

      Although we affirm the court’s rulings on Pan’s motions, there is a clerical

error in his judgment. We may sua sponte raise the issue of clerical errors in the

judgment and remand with instructions to correct the error. See United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006). The judgment in this case indicates

that Pan was convicted of committing a violation of 18 U.S.C. § 1324. However,


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Pan’s conviction was actually for a violation of 8 U.S.C. § 1324 (conspiracy to

transport and harbor aliens). Thus, we remand to the district court with

instructions to amend the judgment to correct the clerical error.

      AFFIRMED IN PART; REMANDED IN PART.




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