FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Nov. 13, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12697

Non-Argument Calendar

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D. C. Docket No. 06-20535-CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGINA GARCIA DE FUNCIA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 13, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Georgina Garcia De Funcia appeals her sentence of nine months of

imprisonment for a probation revocation. She contends that her sentence was

unreasonable because the district court failed to consider the sentencing factors

under 18 U.S.C. § 3553(a) and failed to articulate sufficient findings to support her

sentence. After careful review, we AFFIRM.

I. BACKGROUND

Garcia de Funcia pled guilty to being an accessory after the fact, in violation

of 18 U.S.C. § 3, and was sentenced in June 2007 to five years of probation. As

part of her probation conditions, she was prohibited from using controlled

substances. The conditions also required periodic drug testing, ninety days of

house arrest, and participation in a substance abuse treatment program. In January

2009, Garcia de Funcia admitted violating her probation after she tested positively

for cocaine and failed to undergo drug testing on three occasions. The court did

not revoke her probation but ordered her to enter a ninety-day in-patient drug

treatment program.

A second revocation hearing occurred in May 2009. Garcia de Funcia

admitted violating her probation based on another positive cocaine test. The

government recommended a sentence within the applicable guideline range of

three to nine months of imprisonment. Garcia de Funcia acknowledged that she

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had a drug problem due to depression over her husband’s death, her father’s

cancer, and being a single mother. However, she argued that house arrest would be

more beneficial than jail. She also suggested that medication might help her drug

problem and requested an examination by a psychologist or a psychiatrist. The

court responded as follows:

Counsel, this is kind of a unique situation, as you said. And the

real uniqueness of this is the fact that your client has had the same

probation officer, which rarely happens, from detention all the way

through every violation, all the way through her supervised release. A

probation officer who I know is accessible, caring[,] and not once, and

Ms. Bofan is here to say[,] I need in-patient treatment but there isn’t

the program or I think I need some additional mental health

counseling. All of that is there. What happens consistently, because

as you said this isn’t your client’s first time at the rodeo. She waits

until it is this crisis point and then she starts telling us all what the

issue is.

Do I empathize with the fact she has had a death and issues,

definitely. But the criminal justice part of this remains. Like I said,

this case is unique because rarely do I have a chance to talk to the –

rarely is the supervising officer the same officer who had the person

since they first came into the system. So that’s what I have here. I

have somebody who has been able to follow her through all the

permutations and the manipulations. I don’t know if your client

explained to you or described to you her last court appearance where

she pretty much dared me to jail her and secondly pretty much said

she was going to be back. So since she has fulfilled all of those needs

I think it is time for me to fulfill mine.

R2 at 7-8. Garcia de Funcia rebutted that she was not a danger to society and had

not committed new offenses. The court disagreed:

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But she is. Eventually that is going to happen and we both

know that. And you know that from your practice of this kind of

consistent drug use. She has kids.

. . . .

. . . She is going to end up when you don’t follow one rule you

end up not following others. And she is going to be in that situation

where the next time she’s going to violate a more serious statute and

it’s going to be like jail for real.

Id. at 8-9.

Following additional arguments by both parties and a sidebar discussion with

the probation officer, the court concluded that “I cannot allow the consistent

violations of the supervised release, and I told you exactly what was going to

happen if you returned and hopefully I’m always a person of my word.” Id. at 12.

The court then stated that it had considered the statements of all the parties and the

violation report. Pursuant to the Sentencing Reform Act of 1984, the court

sentenced Garcia de Funcia to nine months of imprisonment to be followed by one

year of supervised release. The court then asked Garcia de Funcia if she objected to

the court’s findings of fact or the manner in which the sentence was pronounced.

Garcia de Funcia responded perfunctorily, “Yes, your Honor.” Id.

On appeal, Garcia de Funcia argues that her sentence was unreasonable

because the court never stated that it had considered the § 3553(a) sentencing

factors, including the nature of the violations. She also contends that nine months

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of imprisonment was disproportionate to her original sentence of probation with

house arrest. Garcia de Funcia concludes that the court’s statements were

inadequate in a post-Booker environment to justify her sentence at the high end of

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the guidelines range.

II. DISCUSSION

As an initial matter, we agree with the government that we may review

Garcia de Funcia’s sentence only for plain error. A defendant must “clearly

articulate a specific objection during sentencing” in order to preserve an objection

for appeal. United States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003). Because

Garcia de Funcia failed to state the grounds for her objection to the court’s

sentence, our review is limited to plain error. See id. at 1087-88. Under this

standard, we cannot reverse unless there is (1) an error, (2) that is plain, and (3) that

affected substantial rights. Id. at 1087. Even if all three requirements are met, we

must still find that “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005) (quotation marks and citation omitted).

Before revoking a defendant’s probation and resentencing her, a court must

consider the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3565(a)(2);

 United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). 1

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United States v. Cook, 291 F.3d 1297, 1300-01 (11th Cir. 2002) (per curiam).

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 –

(A) to reflect the seriousness of the offense, 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 . . .

(3) the kinds of sentences available;

(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 of the offense.

18 U.S.C. § 3553(a). So long as the record demonstrates that the sentencing court

considered these factors, the court is not required to state explicitly that it has done

so. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (“We now . . .

squarely hold that nothing in Booker or elsewhere requires the district court to state

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on the record that it has explicitly considered each of the § 3553(a) factors or to

discuss each of the § 3553(a) factors.”)

Although the district court here did not expressly state that it had considered

the § 3553(a) factors, the court’s statements make clear that these factors influenced

the sentence. The court sympathized with Garcia de Funcia’s personal hardships

but observed her reluctance to seek timely help, her defiant behavior at her previous

revocation hearing, her consistent drug use, and the fact that she has children.

These facts implicate Garcia de Funcia’s history and characteristics as well as the

nature and circumstances of her offense. See 18 U.S.C. § 3553(a)(1). Additionally,

the court mentioned the importance of criminal justice, Garcia de Funcia’s repeated

violations of supervised release despite court warnings, and the need to prevent

more serious violations of the law. Such considerations promote respect for the

law, provide just punishment for the offense, deter future criminal behavior, and

protect the public from further crimes of the defendant. See id. § 3553(a)(2)(A),

(B), (C). Finally, the court considered the advisory guideline range and the

sentencing alternatives proposed by the defendant. See id. § 3553(a)(3), (4). In

light of these statements, we find no error, much less plain error, in the district

court’s consideration of the § 3553(a) factors.

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We also find no error in the district court’s statement of reasons for imposing

a sentence at the high end of the guidelines range. The Supreme Court does not

require a detailed explanation for sentences that fall within the guidelines range.

See Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). Rather,

a sentencing judge must “set forth enough” to show that the judge “considered the

parties’ arguments and ha[d] a reasoned basis for exercising his own legal

decisionmaking authority.” Id. In Rita, the judge’s brief statement of reasons was

sufficient because the judge listened to the parties’ arguments, considered the

evidence presented, and was cognizant of the defendant’s medical condition and

personal history. Id. at 358, 127 S. Ct. at 2469. The same holds true in this case.

The court heard from both sides and evaluated all the evidence in light of Garcia de

Funcia’s particular circumstances. The court’s statements were more than adequate

to show that it had a reasoned basis for sentencing Garcia de Funcia to nine months

of imprisonment. See id. at 356, 127 S. Ct. at 2468; see also United States v. Agbai,

497 F.3d 1226, 1230 (11th Cir. 2007) (per curiam) (concluding that the district

court’s explanation of a defendant’s sentence within the guidelines range was

sufficient where the court considered, but did not explicitly reference, the § 3553(a)

factors). No error has been shown.

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III. CONCLUSION

Because the record demonstrates that the court considered the § 3553(a)

sentencing factors and had a reasoned basis for the sentence, we find no error, plain

or otherwise, in the court’s sentencing decision. Accordingly, we AFFIRM

Garcia de Funcia’s sentence.

AFFIRMED.

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