[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 11474

________________________ D.C. Docket No. 7:11

- cr - 00007

- HL

- TQL

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus JUAN MANUEL DON

- SILVA, a.k.a. Juan Humberto Vasquez

- Hernandz, a.k.a. Juan Bernardo S ilva

- Hernandez, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ (May 13, 2014) Case: 13-11474 Date Filed: 05/13/2014 Page: 1 of 122 Bef ore TJOFLAT and PRYOR, Circuit Judges, SCOLA, ∗ District Judge.
PER CURIAM: In July 1998 Juan Manual Don

- Silva , a citizen of Mexico, was deported from the United States following a drug felony conviction

. H e returned to the United States unlawfully , and i n December 2010 he was arrested for driving violation s in Lowndes County, Georgia. In February 2011 the Government obtained a one - count indictment charging Don

- Silva with willfully being in the United States unlawfully , in violation of 8 U.S.C. § 1326(a) and (b)(1)

. H e pled guilty in March 2011, and in June 2011 t he United States District Court for the Middle District of Georgia sentenced him to time served plus three years’ supervised release 1 and ordered that he be turned over to U.S. Immigration and
C ustoms Enforcement for deportation

. The Government requested supervised release “as a fail safe mechanism”

— in case Don

- Silva tried to return to the United States illegally

. Among the conditions to his supervised release were (1) that he

n ot re

- enter the United States, except by legal means , and (2) that he not commit another crime

. Don

- Silva was deported again following his sentencing

.

∗ Honorable Robert N. Scola, Jr., United States District Judge for the Southern District of Florida, sitting by designation. 1 The Sentencing Guidelines range for his 8 U.S.C. § 1326 violation was 6 to 12 months. At the time of hi s sentencing Don

- Silva had been in custody of one form or another for approximately 6 months.

Case: 13-11474 Date Filed: 05/13/2014 Page: 2 of 123 He again re - entered the United States unlawfully, and i n September 2012 he

was arrested in Lowndes County for domestic battery and o bstruction of a l aw

e nforcement o fficer. 2 Shortly after the arrest , the District Court Probation Office petitioned the Middle District of Georgia to revoke his supervised release. Don

Silva admitted to violating the terms of his release , and the District C ourt revoked supervised release and sentenced him to 18 months’ imprisonment. He now appeals this sentence as procedurally and substantively unreasonable. We affirm the District Court’s sentence for the reasons given below.
I. When a defendant violates the terms of his supervised release, 18 U.S.C. § 3583(e) (3) authorizes a court to revoke the release and impose a term of imprisonment

. I n deciding what term of imprisonment to impose , a district court must consider the Sentencing Co mmission’s applicable policy statement s , which

are contained in Chapter 7 of the Sentencing Guidelines Manual , and certain sentencing factors listed in 18 U.S.C. § 3553(a)

— e.g., “ the nature and circumstance of the offense and the history and characteristics of the defendant , ” the need “to afford adequate deterrence to criminal conduct,” and the need “to protect the public , ” 18 U.S.C. § 3553(a)(1), (a) (2) (B), (a) (2)(C)

. The relevant

2 In February 2013, Don

- Silva pled guilty to battery and giving a false name to an officer. He was sentenced to time served plus probation and a fine, and he was then turned over to the U.S. Marshals Service.

Case: 13-11474 Date Filed: 05/13/2014 Page: 3 of 124 “offense” or “conduct” in a revocation case is the defendant’ s breach of the court’s
trust , committed in violating the terms of his release

. See U.S.S.G., Ch. 7, Pt. A, intro. cmt. 3( b ). If the violation also constitute s an independent criminal offense (as in Don

- Silva’s case), the appropriate sentence for the und erlying offense is reserved for the cou rt with jurisdiction over that offense. Id. Notwithstanding this general proposition, the Chapter 7 policy statements do “tak[e] into account, to a limited degree, the seriousness of the underlying violation and the c riminal history of the violator .” 3 Id. Chapter 7 contains recommended sentencing ranges for varying violations and criminal history categories; the sentencing range is intended to serve as a proxy for the defendant’s breach of the court’s trust, the seriousness of the violation, and the relevant § 3553(a) sentencing factors

. See U.S.S.G. § 7B1.4(a).
In Don

- Silva’s case , t he applicable § 7B1.4 range was three to nine months ’ imprisonment

. 4 Because Don

- Silva was on supervised release for a Class C

3 For example, violations that constitute violent felonies or drug felonies result in greater advisory sentences, see U.S.S.G. § 7B1.1(a); a defendant’s criminal history at the time of his original sentencing determines the length of the advisory sentence, see id. § 7B1.4; and if the violation was a misdemeanor that poses the risk of felonious conduct, the Sentencing Commission suggest s an upward departure from the advisory sentence , see id. § 7B1.4, cmt. 3

. 4 The revocation presentence investigation report f ound that Don

- Silva’s supervised release violations constituted “Grade C Violations” pursuant to U.S .S.G. § 7B1.1(a). For a Grade C violation, the sentencing court may either revoke supervised release and impose a term of imprisonment or extend or modify the terms of the supervised release. Id. § 7B1.3(a)(2). If the court decides to revoke release and impose a term of imprisonment, the recommended range for a Grade C violation and a criminal category history of I (Don

- Silva’s criminal history

Case: 13-11474 Date Filed: 05/13/2014 Page: 4 of 125 fe lony, the maximum term of imprisonment for a violation of the terms of his release was two years. 18 U.S.C. § 3583(e)(3).
D uring the revocation hearing, the Government asked the court to sentence
Don

- Silva above the recommended range because “we don’t b elieve that [the range] adequately accounts for t he seriousness of this offense”

— to wit, “[h]e’s committed two new offenses since the last time he was convicted,” “ [ h ] e has now committed a violent offense ,” and “ he’s reentered the United States again in direct contradiction to the orders of the Court the last time he was sentenced.” Defense counsel urged the court to reach a sentence inside the § 7B1.4 range because Don

Silva’s most recent conviction s were misdemeanor s and he only returned to the United States because his life was endangered in Mexico and because his children live in Georgia

. The District Court imposed a sentence of 18 months’ imprisonment

— twice the upper bound of the advisory range . It explained its reasons as follows: The Court has considered the sentencing guidelines and has taken them into account and has determined that the advisory guideline sentencing range upon revocation is three to nine months

. . . . The Court finds this range to be inadequate, and the Court orders that the term of supervised release be revoked and that the defendant be committed to the Bureau of P risons for a period of 18 months.

category at the time of his original sentence) is three to nine months. Id. § 7B1.4(a). Neither the Governmen t nor Don

- Silva objected to t his advisory range calculation

.

Case: 13-11474 Date Filed: 05/13/2014 Page: 5 of 126 The sentence as imposed is an appropriate sentence in this case, complies with the factors that are to be co nsidered as set forth at 18 United States Code, Section 3553(a) and adequately addresses the totality of the circumstances. When asked if there were any objections, d efense counsel stated , for the record, that the court’s sentence exceeded the advisory ran ge and that such a sentence was greater than necessary to satisfy the § 3553(a) sentencing factors. In this appeal, Don

- Silva now contends that the District Court’s sentence

wa s procedurally flawed and is substantively unreasonable.
II. The Chapter 7 po licy statements, including the recommended terms of imprisonment, are advisory and do not bind the court. United States v. Silva , 443 F.3d 795, 799 (11th Cir. 2006). “We review a district court ’ s decision to exceed the Chapter 7 recommended guidelines ra nge for an abuse of discretion.” Id. at 798. This review includes two components: first, whether the district court committed a “significant procedural error ” in reaching its sentence a nd, second, whether the sentence was substantively un reasonable , taking into account the totality of the circumstances

. Gall v. United States , 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 455 (2007).
A. Significant p rocedural errors include clearly erroneous fact

- finding, improper Sentencing Guidelines calculat ions , failure to consider the § 3553(a)

Case: 13-11474 Date Filed: 05/13/2014 Page: 6 of 127 sentencing factors , or failure to explain a given sentence

. United States v. Gonzalez , 550 F.3d 1319, 1323 (11th Cir. 2008). On this last point, 18 U.S.C. § 3553(c) requires the sentencing judge to “ state in open court the reasons for its imposition of the particular sentence

. ” As the Supreme Court has explained the requirement , “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a re asoned basis for exercis ing his own legal decisionmaking authority.” Rita v. United
States , 551 U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007)

. Don

- Silva argues on appeal that the District Court’s explanation of his 18

- month sentence was insufficient under this standard and, r elatedly, that the District Court did not consider the § 3553(a) factors

— as evidenced by its failure to explain its application of those factors

. 5 As he puts it: The district court did not articulate a chain of reasoning connecting its decision to vary, the ultimate sentence it selected, and the offender before it; nor did it explain how its sentence was responsive to the sentencing factors or purposes set forth in 18 U.S.C. § 3553(a), none of which was specifica lly identified as playing a role in the sentencing decision. Appellant Br. at 11.

5 H e did not raise either objection d uring the revocation hearing; h ad he done so, the District Court could have easily add ressed the alleged shortcomings then and there

. Ordinarily a party’s failure to object at sentencing results in plain

- error review of any new claims raised on appeal. See United States v. Castro , 455 F.3d 1249, 1251 (11th Cir. 2006) . We need not decide whether or how plain

- error review would apply to Don

- Silva’s procedural claims because he cannot establish that the District Court committed an error

— plain or otherwise. Case: 13-11474 Date Filed: 05/13/2014 Page: 7 of 128 While the District Court’s explanation was brief , there is no one - size

- fits

- all rule that requires a sentencing judge to march though a detailed recitation of its reasoning in every case

. “ The appropriateness of brevity or length, conciseness or detail, when to write, what to s ay, depends upon circumstances. . . . The law leaves much, in this respect, to the judge’s own professional judgment.” Rita , 551 U.S. at 356, 127 S. Ct. at 2468. Accordingly, we have held that a d istrict c ourt is not required to discuss on the record each of the § 3553(a) factors that led it to a particular result

. United States v. Scott , 426 F.3d 1324, 1329 (11th Cir. 2005)

.

“ An acknowledgment the district court has considered the defendant ’ s arguments and the § 3553(a) factors will suffice. ” Gonzalez , 550 F.3d at 1324

. In the context of revocation hearing s , “ [w] hen exceeding the recommended range, the court must normally indicate that it consider ed the Chapter 7 policy statements.” Silva , 443 F.3d at 799. Here, t he District Court announced that it had considered the Sentencing Commission’s policy statement s and the § 3553(a) factors. Moreover, t he competing arguments presented for and against a longer

- than

- recommended
sentence were straightforward

. The G overnment urged a weightier sentence to

acc ount for Don

- Silva’s blatant disregard for the District Court’s earlier order and the fact that he committed two new crimes

— one a violent crime

. Don

- Si lva’s response was that he had good reasons for re

- entering the United States and that

Case: 13-11474 Date Filed: 05/13/2014 Page: 8 of 129 his crimes w ere only misdemeanor s . These competing claims obviously implicate the need for a sentence to accommodate the defendant’s breach of the court’ s trust and, to a lesser degree, the seriousness of the underlying conduct

. While the § 7B1.4 recommended term of imprisonment approximate d the sentence required to achieve these objective s , t he court was tasked with tailoring Don

- Silva’s
sentence in light of the “ natur e and circumstances” of his violations

— taking into
account the defendant’s history and the need “ to afford adequate deterrence to criminal conduct

. ” See 18 U.S.C. § 3553(a)(1) , (b)(2)(B)

. Short as it may be, given t hat the court was essentially asked to mak e a judgment based on simple facts and straightforward arguments , the District Court’s explanation was sufficient to convey the basis for its decision

— that the § 7B1.4
range underestimated the seriousness of Don

- Silva’s supervised release violations

. Cf. Rita , 551 U.S. at 356, 127 S. Ct. at 2468 (“[G]iven the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient.”). In hindsight, Don

- Silva may disagree with the resu lt the District Court reached

— an issue we address in reviewing the substantive reasonableness of the sentence

— but we cannot say that the record here is so lacking as to prevent meaningful appellate review. Likewise, we find no basis for Don

- Silva’s argument that the District Court did not consider the § 3553(a) factors. The court stated in the revocation hearing,

Case: 13-11474 Date Filed: 05/13/2014 Page: 9 of 1210 “ [t]he sentence as imposed is an appropriate sentence in this case, complies with the factors t hat are to be considered as set forth at 18 United States Code, Section 3553(a) and adequately addresses the totality of the circumstances. ” As we have said, the sentencing judge has no obligation to give an itemized account of his consideration of the § 3553(a) factors. Again, Don

- Silva may disagree with the District Court’s weigh ing of the § 3553(a) factors , but he cannot claim that the District Court failed to consider th ose factors.
B. We now turn to his substantive unreasonableness claim. “ The review for substantive unreasonableness involves examining the totality of the circumstances, including an inquiry into whether the statutory factors in § 3553(a) support the sentence in question. ” 6 Gonzalez , 550 F.3d at 1324

. In review ing the District
C ourt’s weighing of these factors , we may only vacate the court’s sentence if “ we are 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

6 18 U.S.C. § 3583(e) directs a sentencing judge to consider the following § 3553(a) factors in revoking supervised release and imposin g a term of imprisonment: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant,” (2) the need for the sentence “to afford adequate deterrence to criminal conduct,” (3) the need for the sentence “to protect t he public from further crimes of the defendant,” (4) the need for the sentence “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” (5) the Sentencing Commiss ion’s policy statements, (6) “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” and (7) “the need to provide restitution to any victims of the offense

. ” 18 U.S.C. § 355 3(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4)

– (7).

Case: 13-11474 Date Filed: 05/13/2014 Page: 10 of 1211 that lie s 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) (quotation marks omitted). The p arty challenging the sentence bear s the burden of showing that it is unreasonable

. United States v. Clay , 483 F.3d 739, 743 (11th Cir. 2007)

. Where a district court sentences a defendant outside the Sentencing Commission ’ s recommended range, the court of appeals “ may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall , 552 U.S. at 51, 128 S. Ct. at 597.
Don

- Silva violated the terms of his release by en gaging in the very conduct that resulted in the imposition of the supervised release in the first place

— entering the United States unlawfully

— and in doing so acted in direct contradiction to the District Court’ s previous order. T he District Court sentence d him within the two

year statutory maximum and, in reaching its decision, considered the Chapter 7 policy statements and the relevant § 3553(a) factors

. Don

- Silva’s onl y argument that the District Court abused its discretion in reaching an 18

- month sentence is that the court did not give appropriate weight to the § 7B1.4 range or the § 3553(a) factors that counseled against a longer sentence

— to wit, that Don

- Silva accepted

re sponsibility for his violations , had good reasons f or violating the terms of his releas e , and does not pose a risk to the public

. See Appellant Br. at 19.

Case: 13-11474 Date Filed: 05/13/2014 Page: 11 of 1212 “ W e have consistently held that the policy statements of Chapter 7 are merely advisory and not binding. While the district court is required to cons ider the policy statements, it is not bound by them. ” Silva , 443 F.3d at 799 (citations omitted)

. And “ [t] he weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court.” Clay , 483 F.3d at 743 (quotation marks and citation omitted). In light of the record before us, w e cannot say that the court ’s 18

- month sentence was “outside the range of reasonable sentences dictated by the facts of the case.” See Irey , 612 F.3d at 1190 (quotation marks omit ted). The District Court’s sentence is, accordingly,
AFFIRMED. Case: 13-11474 Date Filed: 05/13/2014 Page: 12 of 12