FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 04, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12258

Non-Argument Calendar

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D. C. Docket No. 05-20620-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YUDIESKY MACHADO-GONZALEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(February 4, 2009)

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

Yudiesky Machado-Gonzalez appeals his 60-month sentence imposed on
revocation of his supervised release. After a thorough review of the record and the

parties’s briefs, we affirm.

I. Background

Machado-Gonzalez was indicted for conspiracy to commit alien smuggling

and several other related charges in February 2005. He was released on bond

pending trial and one of the conditions of bond required that he not board any

water vessels. After Machado-Gonzalez pleaded guilty to the conspiracy charge

but before he was sentenced, he was arrested for attempting to smuggle aliens.

Machado-Gonzalez was later sentenced for the smuggling charge to one year of

imprisonment and one year of supervised release.

As a result of violating the terms of his bond, Machado-Gonzalez was

indicted for criminal contempt, in violation of 18 U.S.C. § 401(3). MachadoGonzalez agreed to plead guilty to the criminal contempt charge and the plea

agreement advised that the court could impose a sentence of up to life

imprisonment and five years’ supervised release. Prior to sentencing, the probation

officer prepared a presentence investigation report (“PSI”), listing the contempt

offense as a Class A felony. Machado-Gonzalez’s criminal history category was

II. The probation officer noted that the court could impose a term of imprisonment

and, if more than one year was imposed, the guidelines range for the subsequent

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term of supervised release was three to five years.

In January 2006, the court sentenced Machado-Gonzalez to 24 months’

imprisonment for the contempt offense. The court also imposed a three-year term

of supervised release. Machado-Gonzalez made no objections to the imposition of

supervised release. Machado-Gonzalez’s term of supervised release began in

November 2007.

In March 2008, the probation officer petitioned the court to revoke

Machado-Gonzalez’s release after Machado-Gonzalez violated the terms of his

release by leaving the jurisdiction without permission. According to the records,

Machado-Gonzalez and another person operated a “go-fast boat” and refused to

stop when approached by the Coast Guard.

At the revocation hearing, Machado-Gonzalez admitted the allegations. The

court determined that the guidelines range for the violation of supervised release

was four to ten months’ imprisonment. The statutory maximum sentence was 60

months’ imprisonment. The district court inquired into Machado-Gonzalez’s

background, learning that Machado-Gonzalez had entered the country illegally in

2004 and that he had been convicted of alien smuggling. The court also questioned

the circumstances of the violation of supervised release. After considering the

arguments, the district court found that Machado-Gonzalez violated the terms of

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his release and revoked the release. The district court sentenced MachadoGonzalez to five years’ imprisonment, stating that it had considered MachadoGonzalez’s illegal entry into the country and his repeated smuggling offenses.

Machado-Gonzalez now appeals, arguing (1) the district court was not authorized

to impose supervised release in connection with his original criminal contempt

offense; (2) even if the district court could impose a term of supervised release, it

did not have the authority to impose a 3-year term of supervised release where the

underlying conviction was for criminal contempt; and (3) the 60-month sentence

was unreasonable.

II. Discussion

We review a district court’s revocation of supervised release for an abuse of

discretion. United States v. Mitsven, 452 F.3d 1264, 1266 (11th Cir. 2006).

However, when “a defendant raises a sentencing argument for the first time on

appeal, we review for plain error.” United States v. Aguillard, 217 F.3d 1319,

1320 (11th Cir. 2000) (supervised release revocation case). “[T]o correct plain

error: (1) there must be error; (2) the error must be plain; and (3) the error must

affect substantial rights.” Id. (internal quotations omitted).

1. Imposition of Supervised Release

Machado-Gonzalez argues that the district court erred in imposing

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supervised release following his original term of imprisonment for criminal

contempt because supervised release is not authorized for a contempt violation, as

contempt is neither a felony nor a misdemeanor offense. Machado-Gonzalez

claims that he can establish plain error because the error was “clear” or “obvious,”

as the district court was not authorized to impose a term of supervised release for a

violation of § 401(3) and the error affected his substantial rights. In addition, he

argues that this issue raises a jurisdictional claim which may not be deemed

procedurally defaulted on appeal.

We will not consider challenges to the validity of a sentence that are raised

for the first time in a supervised release revocation hearing. United States v.

Almand, 992 F.2d 316, 317-18 (11th Cir. 1993). Thus, Machado-Gonzalez cannot

challenge the validity of the imposition of a term of supervised release because the

proper method of raising such arguments is in a § 2255 motion to vacate his

sentence. Almand, 992 F.2d at 317.

2. District Court’s Authority

Machado-Gonzalez argues that even if the court could impose supervised

release, the term of supervised release imposed was incorrect because the district

court erred by classifying his contempt offense as a Class A felony instead of a

Class E felony that would be subject to one year of supervised release. He

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concedes, however, that this court has yet to decide whether criminal contempt

constitutes a Class A felony. He urges this court to follow United States v.

Carpenter, 91 F.3d 1282 (9th Cir. 1996), holding that a criminal contempt offense

should be classified for sentencing purposes according to the sentencing guidelines

applicable to the most analogous offense. In his reply brief, Machado-Gonzalez

further contends that this is a jurisdictional question and thus should be reviewed

de novo. However, even if we review this issue for plain error, he claims reversal

is required because in United States v. Lippner, 676 F.2d 456 (11th Cir. 1982), we

found plain error when a district court improperly enhanced the defendants’

sentences based on non-final convictions.

As discussed above, Almand forecloses Machado-Gonzalez’s argument as to

whether the district court had the authority to sentence him to a term of three years’

supervised release because the proper method of raising such arguments was in a

§ 2255 motion to vacate his sentence.

3. Reasonableness

Machado-Gonzalez argues that the 60-month sentence imposed upon

revocation of his release was unreasonable. He notes that he admitted the

violation, which is usually considered a mitigating factor at sentencing, and the

district court failed to fully articulate why the maximum sentence was warranted.

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He further argues that the court impermissibly based its sentence on his illegal

entry into the United States and the court’s disappointment with the government’s

failure to charge him with a new offense based on the altercation with the Coast

Guard that led to his supervised release revocation.

We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir.

2006). We have not specifically held what standard applies where, as here, the

defendant failed to object to the reasonableness of the sentence at the sentencing

hearing. Nevertheless, we need not decide the appropriate standard of review,

because under either standard, Machado-Gonzalez’s argument fails.

Under 18 U.S.C. § 3583(c), a district court may impose a sentence of

imprisonment for a violation of supervised release after considering factors set

forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7). 18

U.S.C.§ 3583(e)(3). These factors include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence imposed

. . . to promote respect for the law, and to provide just punishment for

the offense; (B) to afford adequate deterrence to criminal conduct; (C)

to protect the public from further crimes of the defendant; and (D) to

provide the defendant with needed . . . [treatment] . . . ; (4) the kinds

of sentence and the sentencing range . . . ; (5) any pertinent policy

statement . . . (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

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of the offense.

18 U.S.C. § 3553(a).

The district court must impose a sentence that is both procedurally and

substantively reasonable. Gall v. United States, 552 U.S. __, 128 S.Ct. 586, 597,

169 L.Ed.2d 445 (2007). A sentence may be procedurally unreasonable if the

district court improperly calculates the guidelines range, treats the Sentencing

Guidelines as mandatory rather than advisory, fails to consider the appropriate

statutory factors, selects a sentence based on clearly erroneous facts, or fails to

explain adequately the chosen sentence. Id. “A sentence that is based entirely

upon an impermissible factor is unreasonable because such a sentence does not

achieve the purposes of § 3553(a).” United States v. Velasquez Velasquez, 524

F.3d 1248, 1252 (11th Cir. 2008) (internal quotation omitted).

After we have determined that the sentence is procedurally sound, we review

the substantive reasonableness of a sentence. Gall, 128 S.Ct at 597. The review

for substantive reasonableness involves examining the totality of the

circumstances, including the extent of any variance and an inquiry into whether the

statutory factors in § 3553(a) support the sentence in question. Id. In its

consideration of the § 3553(a) factors, the district court does not need to discuss or

state each factor explicitly. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.

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2005). Instead, an acknowledgment by the district court that it has considered the

defendant’s arguments and the § 3553(a) factors will suffice. Id. at 1330. “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court.” United States v. Clay, 483 F.3d 739, 743

(11th Cir. 2007) (quotation omitted). The party challenging the sentence has the

burden of establishing that the sentence is unreasonable in light of the record and

the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

Chapter 7 of the sentencing guidelines governs supervised release, and it

creates three kinds of violations. U.S.S.G. § 7B1.1. As relevant here, a Grade C

violation results when a defendant violates a condition of supervised release.

§ 7B1.1(a)(3)(B). If, as in this case, the district court revokes supervised release

following a Grade C violation and the defendant had a criminal history category of

II, then the guideline range is four to ten months’ imprisonment. § 7B1.4(a).

Because Machado-Gonzalez’s underlying contempt conviction was deemed a Class

A felony, and he cannot challenge that classification in this appeal, the statutory

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maximum penalty for his supervised release violation was 60 months’

imprisonment. 18 U.S.C. § 3583(e)(3).

 Whether criminal contempt is a Class A felony is an open question in this court. See 2

United States v. Love, 449 F.3d 1154 (11th Cir. 2006) (declining to address whether supervised

release was permitted for criminal contempt under § 401(3)). 

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Upon review, we conclude that the district court committed no procedural

error in the sentencing because it (1) correctly calculated the guideline range;

(2) considered the § 3553(a) factors; and (3) treated the guidelines as advisory.

Moreover, there is no evidence in the record to support Machado-Gonzalez’s

argument that the district court relied on the government’s failure to charge him for

his altercation with the Coast Guard to impose a sentence at the high end of the

range.

Machado-Gonzalez also has not established that his sentence was

substantively unreasonable because the district court permissibly focused on

respect for the law and deterrence, both factors under § 3553(a), and it was not

required to expressly discuss each of the § 3553(a) factors.

For the foregoing reasons, we AFFIRM Machado-Gonzalez’s sentence.

AFFIRMED.

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