FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 30, 2007

THOMAS K. KAHN

CLERK

 Honorable Robert L. Vining, Jr., United States District Judge for the Northern District of ∗

Georgia, sitting by designation.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14273

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D.C. Docket No. 06-20082-CR-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MOLINA SAVEDRA

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 30, 2007)

Before ANDERSON and PRYOR, Circuit Judges, and VINING, District Judge.

PER CURIAM:
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Juan Molina Savedra appeals his sentence for re-entering the United States

after being deported, in violation of 8 U.S.C. § 1326(a). Although the advisory

guidelines range in this case was 33 to 41 months, the district court instead sentenced

Savedra to a term of 120 months. In doing so, the court first properly calculated the

applicable guidelines range, and then it opined that even an upper guideline sentence

of 41 months would not be appropriate under 18 U.S.C. § 3553(a) considering

Savedra's history of repeatedly entering the United States illegally and committing

crimes while here. The court therefore went beyond the guideline range and

determined that a 120-month sentence more adequately satisfied the § 3553(a)

factors.

Savedra makes four arguments on appeal. First, he argues that the district

court erred by failing to give adequate notice that it intended to depart upward from

the guidelines in violation of his due process rights and Fed. R. Crim. P. 32(h). As

an initial matter, we review this matter for plain error because the defendant failed to

object to an alleged error at sentencing on this ground "in clear and simple language

that the trial court may not misunderstand it." United States v. Massey, 443 F.3d 814,

819 (11th Cir. 2006). After careful consideration, we find no reversible error.

Pursuant to Rule 32(h), a sentencing court is required to give a defendant

reasonable notice that it is considering a departure from the applicable guideline
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range on a ground not identified for departure either in the Presentence Investigation

Report or in a party's prehearing submission. It is undisputed that the district court

below did not give prior notice that it was contemplating an outside-the-guidelines

sentence for Savedra. However, we have held that Rule 32(h) does not apply where

a court is going to impose an upward variance and give a sentence above the advisory

guideline range pursuant to its authority under § 3553(a). United States v. Irizarry,

458 F.3d 1208, 1211-12 (11th Cir.), petition for cert. filed, (U.S. Oct. 26, 2006)(No.

06-7517). The Rule 32(h) notice requirement pertains only to sentencing departures

made pursuant to the guidelines, not a variance made under § 3553(a). 

This court has considered, inter alia, two factors in determining whether a

decision to sentence a defendant above the guideline range is a departure or a

variance: (1) whether the sentencing court cited to a specific departure provision in

the guidelines, and (2) whether the court noted the inadequacy of the guidelines

range. United States v. Eldick, 443 F.3d 783, 788 n.2 (11th Cir. 2006). Using a

similar framework in Irizarry, we determined that where the district court (1) correctly

calculated the advisory guidelines range, (2) considered the adequacy of the range in

light of the § 3553(a) factors, and the evidence at sentencing, and (3) decided that the

guidelines range did not adequately address the defendant's future risk to the public,
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the district court had used a variance, not a guidelines departure. Irizarry, 458 F.3d

at 1211-12.

In this case, the district court did not commit plain error by failing to give

Savedra Rule 32(h) notice because it did not apply a guidelines departure; rather, it

used an upward variance to sentence him above the guidelines range. Not only did

the court first properly calculate the defendant's guidelines range, but at sentencing

the court did not cite to a specific departure provision. Moreover, the court opined

several times that a guidelines-range sentence would not adequately address the §

3553(a) factors. Although the government stated that an upward departure could be

used, the district court referred only to the § 3553(a) factors and its consideration of

the nature and circumstances of the offense as well as the defendant's history and

characteristics. Thus, the district court used an upward variance, not a departure, and

therefore did not need to provide notice to Savedra.

Second, Savedra asserts that the district court erred by failing to invite him to

allocute before it announced its sentence, in violation of Fed. R. Crim. P.

32(i)(4)(A)(ii). He also argues that this court should not review this issue under

merely a plain error standard because the district court failed to fully comply with the

elicitation rule announced in United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.
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1990), overruled in part on other grounds by United States v. Morrill, 984 F.2d 1136

(11th Cir. 1993)(en banc).

Turning initially to Savedra's contention that the district court violated our rule

in Jones, we conclude that it did not. The district court gave the defendant an

opportunity to object to its findings of fact and the manner in which it pronounced its

sentence. Although the court did not specifically provide an opportunity to object

also to its legal conclusions, as we suggested in Jones, it nevertheless afforded the

defendant a sufficient chance to raise and articulate any objection he may have had,

which is sufficient to comply with the Jones rule. See United States v. Wilson, 983

F.2d 221, 225-26 (11th Cir. 1993). In any event, Savedra took that opportunity to

object only to the reasonableness of the sentence, not to the timing of his allocution.

Consequently, he waived his right to allocution by failing to raise it as a Jones

objection, and we willremand for resentencing only if manifest injustice would result

otherwise. United States v. Rodriguez-Valesquez, 132 F.3d 698, 700 (11th Cir.

1998). Because the case law in this circuit equates manifest injustice with the plain

error standard of review, United States v. Quintana, 300 F.3d 1227, 1232 (11th Cir.

2002), we review this issue for plain error.

With respect to the district court's manner in which it pronounced its sentence,

we conclude that no plain error occurred. Rule 32(i)(4)(A)(ii) plainly requires a
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sentencing court to permit a defendant to make a statement and present any mitigating

information before handing down a sentence. This requirement provides the

defendant with an opportunity to personally plead for leniency and "to have that plea

considered by the court in determining the appropriate sentence." United States v.

Gerrow, 232 F.3d 831, 833 (11th Cir. 2000). Savedra's argument is that the court

pronounced its sentence before allowing him to allocute. However, a careful review

of the record shows that the court merely opined that a 120-month sentence satisfied

the § 3553(a) factors before it invited Savedra to allocute. Upon the court's

invitation, Savedra apologized for his actions and promised he would never return to

this country. The court then formally imposed its sentence. Although the court may

have expressed its opinion about Savedra's sentence before the allocution, it

nevertheless waited until after the defendant spoke to formally sentence him. Savedra

thus had the timely opportunity to plead to the court for leniency before sentencing,

so no plain error occurred.

Third, Savedra asserts error because the district court failed to consider a

guidelines upward departure before imposing an upward variance. Since he made no

objection at the sentencing based on this objection, we review this issue for plain

error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). 
7

We have already concluded that the district court properly calculated the

defendant's guidelines range before it elected to use an upward variance. Notably,

Savedra points to no law requiring a sentencing court to first consider a guidelines

departure before looking to the § 3553(a) factors to vary a sentence upward. We find

no plain error in the district court's election not to consider a guidelines upward

departure before imposing an upward variance. As for Savedra's contention that the

district court did not consult the guidelines policy statements before varying upward

as required by § 3553(a)(5), we disagree. In imposing the sentence, the court

explicitly stated that it had considered each of the § 3553(a) factors, which include

the consideration of pertinent policy statements.

Lastly, Savedra asserts that his 120-month sentence was unreasonable because

it creates a risk of sentencing disparity and is unnecessarily severe. He notes that that

the government presented no aggravating factors against him, and he contends that

his case did not involve extraordinary circumstances warranting his long sentence.

We review post-Booker sentences for reasonableness. United States v. Talley,

431 F.3d 784, 785 (11th Cir. 2005). The Supreme Court's decision in United States

v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66 (2005), mandated that courts

review sentences for reasonableness in light of the factors set forth in § 3553(a). A

party challenging a sentence bears the burden of establishing unreasonableness in
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light of the § 3553(a) factors and the record below. Talley, 431 F.3d at 788. A

remand for resentencing is warranted "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 that lies outside the range of reasonable

sentences dictated by the facts of the case." United States v. Williams, 456 F.3d

1353, 1363 (11th Cir. 2006).

The defendant's sentence, although significantly higher than the guidelines

maximum, was still ten years below the statutory maximum of twenty years'

imprisonment. 8 U.S.C. § 1326(b)(2). In sentencing the defendant, the court stated

ample reasoning for its decision to vary upward from the guidelines maximum.

Specifically, the court recalled how Savedra had repeatedly been deported or returned

to Mexico for illegal entry, and that each time he had managed to enter this country

he committed serious crimes. Further, the court stated that a high-end guidelines

range sentence of 41 months would not adequately deter Savedra fromfuture criminal

conduct or reflect his characteristics under § 3553(a), recounting his numerous

arrests, prison sentences, and re-entries back into the country. Thus, the district court

explicitly consulted several of the § 3553(a) factors and provided ample reasoning for

its decision to vary upward from the guidelines. Our review for reasonableness is

deferential and the particular weight accorded to any of the § 3553(a) factors is left
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to the district court's sound discretion. United States v. Amedeo, 487 F.3d 823, 832-

33 (11th Cir. 2007). After carefully considering Savedra's argument, we are not

persuaded that his sentence was unreasonable or that the district court committed

clear error of judgment in weighing the § 3553(a) factors in light of the facts of this

case. Therefore, Savedra's sentence was reasonable, and we affirm.

AFFIRMED