[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 11133 Non

- Argument Calendar

________________________ D.C. Docket No. 1:09

- cr - 00499

- RWS

- CCH

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus J. L. MENEFEE, II, a.k.a. J.L. Menefee, a.k.a. JL Menefee, a.k.a . JL Menefee, II, a.k.a. James L. Menefee, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Northern Distr ict of Georgia

________________________ (April 6, 2015) Case: 14-11133 Date Filed: 04/06/2015 Page: 1 of 102 Before MARCUS , WILSON , and WILLIAM PRYOR , Circuit Judges.
PER CURIAM: J. L. Menefee appeals his twenty

- month revocation sentence imposed by the district court after it revoked his supervised release

. 1 On appeal, Menefee argu es the district court’s imposition of a twenty

- month revocation sentence was procedurally unreasonable because the district court fail ed to consider the applicable Sentencing Guidelines before it imposed the revocation sentence

. Menefee also c ontends the district court improperly determined that his conduct

was a Grade A viol ation of his supervised release because (1) there was insufficient evidence to conclude that he knew his companion was using a stolen identity and (2) insufficient evidence to prove that t he banks involved were federally insured. Upon review of the record and after consideration of the parties’ briefs, we find no reversible error. Therefore, we affirm Menefee’s twenty

- month revocation
sentence

.

1 After completing a custodial term of twenty months’ imprisonment for an unrelated offense, Menefee was placed on supervised release, the terms of which required, among other things, Menefee to refrain from committing another federal, state, or local offen se. Menefee’s term of supervised release began in 2012. In 2013, the district court found that Menefee violated the terms and conditions of his of supervised release by engaging in new criminal conduct that included, among other things, conspiracy to com mit bank fraud, wire fraud, and aggravated identity theft

. Case: 14-11133 Date Filed: 04/06/2015 Page: 2 of 103 I. First, w e address Menefee’s argument that the district court erred by failing to consider the applicable Sentencing Guidelines before it imposed h is revocation
sentence , resulting in the imposition of a sentence that is procedurally unreasonable

. W e review a sentence impo sed upon revocation of supervised release for reasonableness. United States v. Sweeting , 437 F.3d 1105, 1106

– 07 (11th Cir. 2006) (per curiam) . Where there was no objection to the procedural reasonableness during senten cing , however, we review for plain error. United States v. Vandergrift , 754 F.3d 1303, 1307 (11th Cir. 2014). “ To preserve an issue for appeal, a general objection or an objection on other grounds will not suffice. ” United States v. Gallo

- Chamorro , 48 F.3d 502, 507 (11t h Cir. 1995). If a statement does not clearly inform the district court of the legal basis for the objection, the n the issue is not properly preserved. United States v. Massey , 443 F.3d 814, 819 (11th Cir. 2006). Since Menefee generally objected in broa d terms to, without any legal or factual specificity, the procedural reasonableness of his revocation sentence , his objection was not sufficient to preserve the issue. See id. Thus, our review is for plain error only. Under plain error review, a party mu st show (1) error, (2) that is plain, and (3) that affects substantial rights. Vandergrift , 754 F.3d at 1307

. If all three

Case: 14-11133 Date Filed: 04/06/2015 Page: 3 of 104 conditions are met, w e may then exercise our discretion to notice a forfeited error if it “ seriously affects the fairness, integrity, or public reputation of judicial proceedings. ” United States v. Cotton , 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002) (internal quotation marks omitted). Error is not plain unless it is clear or obvious under current law. United States v. O lano , 507 U.S. 725, 734, 113 S. Ct. 1770, 177 7 ( 1993). The burden is on the defendant to show prejudice by establishing “that the error actually did make a difference

. ” United States v. Shelton , 400 F.3d 1325, 1331

– 32 (11th Cir. 2005) ( internal quotation marks omitted). To make this determination, we must decide whether there is a

“ reasonable probability ” that there would have been a different result had the error not occurred. See id. at 1332. “ A reasonable probability of a differ ent result
means a pr obability sufficient to undermine confidence in the outcome.” Id

. (internal quotation marks omitted). “[U] pon finding that a defendant violated a condition of supervised release, a district court , after considering factors set forth in [ 18 U.S.C. ] § 3553 (a) , may . . . revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release.” United States v. White , 416 F.3d 1313, 1318 (11th Cir. 2005) (per curiam) ; see also § 3583(e)(3). “ One of the factors a
court must consider is the sentencing range established by the applicable guidelines or policy statements issue d by the Sentencing Commission. ” United

Case: 14-11133 Date Filed: 04/06/2015 Page: 4 of 105 States v. Campbell , 473 F.3d 1345, 1348 (11th Cir. 2007) (per curiam) (internal
quo tation marks omitted) ; see also § 3553(a)(4)

– (5). The law does not require the sentencing court to discuss the factors set forth in § 3553(a) or even explicitly state that it has considered those factors. See United States v. Robles , 408 F.3d 1324,
1328 (11th Cir. 2005) (per curiam) (noting that we do not “ expect the district court in every case to conduct an accou nting of every § 3553(a) factor”).

“ [B]ecause the G uidelines have always been advisory for sentences imposed
upon revoca tion of supervised release , White , 416 F.3d at 1318, it is sufficient that there be some indication that the district court w as aware of and considered the
G uidelines.” Campbell , 473 F.3d at 1349 ( internal quotation marks omitted). We have found error, however, where the d ist rict court never mentioned the G uideline range or the classification of the conduct that violated the terms of supervised release. See i d. While the district court is not required to discuss the Sentencing Guidelines at length , see Robles , 408 F.3d at 1328 , we acknowledge that , here, the district court gave no indication as to whether it even considered the m, s ee Campbell , 473 F.3d at 1349

. We suspect that, the district court , having sentenced Menefee within the advisory range , had the Guidelines in mind; but , since the district court failed
to mention the m at all, there is n o way to confirm our suspicion

. T he district court did state that it was leaning towards imposing a twenty

- four

- month (above the

Case: 14-11133 Date Filed: 04/06/2015 Page: 5 of 106 G uideline range) revocatio n sentence ; but instead , it impose d a twenty

- month revocation sentence to avoid exceeding Menefee’s original sentence. This seems to suggest that Menefee’s revoc ation sentence fell within the G uideline s range simply by coincidence. In any event, e ven i f we were to assume that Menefee has shown error which is plain, he cannot show that such an error affected his substantial rights. See Vandergrift , 754 F.3d at 1307. Menefee acknowledges, for example, that his revocation sentence of twenty months falls within the applicable G uideline range of fifteen to twenty

- one months. See U.S.S.G. § 7B1.4. Thus, even if the district
court failed to consider the Sentencing Guidelines, it nonetheless sentenced Menefee within them. See Shelton , 400 F.3d at 13 3 2 (noting that the error must actually make a difference). Therefore , we cannot conclude that there i s a reasonable probability the result here would have been different had the district
court undoubtedly considered the Sentencing Guidelines. See i d. ( providing that a reasonable probability is one that is “ sufficient to undermine confidence in the
outcome ” (internal quotation marks omitted) )

. II. Second , w e address Menefee’s argument that there was insufficient evidence to conclude that he knew that his companion was using a stolen identity

.

Case: 14-11133 Date Filed: 04/06/2015 Page: 6 of 107 As noted above, we review a revocation sentence for reasonableness when an objection is preserved, Sweeting , 437 F.3d at 1106

– 07 , and for plain error when an objection is not preserved, Vandergrift , 754 F.3d at 1307. “ We may affirm the [ d ] istrict [c] ourt on any basis supported by the record. ” Miller v. Harget , 458 F.3d 1251, 1256 (11th Cir. 2006). Since Menefee’s argument under this subsection was preserved below, we review it for reasonableness.
At the revocation hearing, the government presented evidence to establish that Menefee went to the car dealership, learned he needed more paperwork, and later returned with a woman who picked out a car, filled out paperwork, and signed as a guarantor for the car loans. The evidence also showed that the woman used a stolen identity to secure the loans. As we see it, this evidence strongly suggests that Menefee knew the woman’s true identity, and that she was using a false identity on the credit application i n order to secure the loans. See id . at 1107 ( stating a district court may revoke a term of supervised release when the preponderance of the evidence establishes a defendant violated a condition of supervised release). Therefore, the district court ’s conclusion that Menefee knowingly participated in the fraud was not unreasonable

. III. Finally, Menefee argues for the first time on appeal that the government did not show that his conduct was a Grade A violation of his supervised release

Case: 14-11133 Date Filed: 04/06/2015 Page: 7 of 108 because it fai led to establish that the banks involved were federally insured, and, consequently , failed to prove all of the elements of bank fraud

. Menefee contends
t his is significant because the G uideline range is determined by the grade of the violation, and the grade of the violation is, in turn, determined by whether the offense is punishable by a term of imprisonment that exceed s a certain number of
years. See U.S.S. G. § 7B1.1. Since Menefee failed to preserve this argument below, we review it for plain error only. Vandergrift , 754 F.3d at 1307

. A sentence is procedurally unreasonable where the distric t court considers an incorrect G uideline range. See Gall v. United States , 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007)

. “[ T ] he recommended sentencing range [ for a revocation
sentence ] is based on the classification of the conduct that resulted in the revocation and the criminal history category applicable at the time the defendant originally was sentenced to the term of supervision. ” See Campbell , 47 3 F.3d at
1348

– 49; s ee also U.S.S.G . § 7B1.4. “[A] t [a] revocation [hearing][,] the court should s anction primarily the defendant’ s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator. ” See U .S.S.G. ch. 7, pt. A, introductory. cmt. 3(b)

. There are three grades of violations of supervised release. Grade A violations are for conduct constituting, among other things , “ federal, state, or local offense [s] punishable by a term of imprisonment exce eding twenty years. ”

Case: 14-11133 Date Filed: 04/06/2015 Page: 8 of 109 U.S.S.G. § 7B1.1(a)(1). Grade B violations are for “ conduct constituting

. . . federal, state, or local offense [ s ] punishable by a term of imprisonment exceeding
one year. ” Id. § 7B1.1(a)(2). Finally, Grade C violations are for conduct that constitutes “ (A) a federal, state, or local offense punishable by a term of
i mprisonment of one year or less; or (B) a violation of any other condition of supervision. ” Id. § 7B1.1(a)(3). “[T]he grade of the violat ion does not depend upon the conduct that is the subject of criminal charges . . . [r]ather, the grade of the violation is to be based on the defendant’s actual conduct.” 2 § 7B1.1 cmt. n.1. Here, Menefee’s alleged participation in bank fraud violated the terms and conditions of his supervised release. Under 18 U.S.C. § 1344, a person who commits bank fraud by obtaining credit from a financial institution by means of fraudulent representations may be imprisoned for up to thirty years. Proof that the
fina ncial institution is federally insured has been characterized as both a jurisdictional prerequisite and a substantive element of the crime. See United
States v. Dennis , 237 F.3d 1295, 1303 (11th Cir. 2001). We first note that t he government was not required to prove beyond a reasonable doubt that Menefee committed the alleged crime, United States v.

2 “Actual conduct” here is Menefee’s “ breach of trust ” under the terms and conditions of his supervised release by committing bank fraud

. See U.S.S.G. ch. 7, pt. A, introductory. cmt. 3(b). The Sentencing Commission intended to avoid sanctioning new criminal conduct (here, the activity by which Menefee violated his supervised release) at revocation proceeding s because of “[t]he potential unavailability of information and witnesses necessary for a determination of specific offense characteristics or other guideline adjustments could create questions about the accuracy of factual findings concerning the existence of those factors.” Id.

Case: 14-11133 Date Filed: 04/06/2015 Page: 9 of 1010 Taylor , 931 F.2d 842, 848 (11th Cir. 1991) (per curiam) ; the government was only required to prove by the preponderance of the evidence that Menefee viol at ed the
condition s of his supervised release , see Sweeting , 437 F.3d at 1107. Furthermore, Menefee’s violation grade is not depend ent upon the conduct that is the subject of the underlying criminal charges

— that is, fraud ulently obtaining credit from a
fe derally insured financial institution ; Menefee’s violation grade is based only on his “ actual conduct. ” See U.S.S.G. § 7B1.1 cm t. n.1. T he federally insured status of the banks involved here is the subject of criminal charges, and, therefore, had nothing to do with the classification of Menefee’s actual conduct for purposes of determining the grade of his violation

. Consequently , the district court did not commit plain error because it was entitled to consider Menefee’s actual conduct to be a Grade A violation of supervised release , regardless of whether the government prove d that the banks involved were federally insured. AFFIRMED. Case: 14-11133 Date Filed: 04/06/2015 Page: 10 of 10