United States v. Ariel Milian

649 F. App'x 805
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 9, 2016
Docket15-15141
StatusUnpublished

This text of 649 F. App'x 805 (United States v. Ariel Milian) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ariel Milian, 649 F. App'x 805 (11th Cir. 2016).

Opinion

PER CURIAM:

Ariel Milian appeals his 11-month sentence imposed after the district court revoked his supervised release for failing to report an arrest to his probation officer. Milian was originally charged with three violations of his supervised release conditions: (1) committing a violation of state law; (2) failure to report an arrest; and (3) leaving the district without permission. However, the government agreed to dismiss violations one and three in exchange for Milian’s admission that he committed violation two. During his sentencing, the district court noted that Milian had left the district without permission and that he had committed the violation once before, referring to a previous violation of leaving the district without permission. On appeal, Milian argues that: (1) the district court procedurally erred when it considered facts that he had not admitted and that no evidence had been offered on at sentencing; and (2) his sentence was substantively unreasonable. After thorough review, we affirm.

We review a sentence imposed upon the revocation of supervised release for reasonableness, United States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir.2008), which “merely asks whether the trial court abused its discretion,” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). When sentencing objections are raised for the first time on appeal, we consider them under the plain error doctrine. United States v. Garrison, 133 F.3d 831, 848 (11th Cir.1998). To establish plain error, a defendant must show: (1) error (2) that is plain and (3) affects substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). If all three conditions are met, then we may exercise our discretion to correct an error if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

“An error is plain if it is obvious and clear under current law.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir.2006). Thus, “where the explicit language of a statute or rule does not specifically resolve an issue, there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.2003). *807 A defendant fails to meet his burden of showing that an error affected his substantial rights when “the effect of an error on the result in the district court is uncertain or indeterminate.” Rodriguez, 398 F.3d at 1301. To preserve an objection for appeal, the defendant “must raise that point in such clear and simple language” that it “inform[s] the district court of the legal basis for the objection.” United States v. Massey, 443 F.3d 814, 819 (11th Cir.2006) (quotations omitted).

In reviewing sentences for reasonableness, we typically perform two steps. Pugh, 515 F.3d at 1190. First, we “‘ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). 1 The district court has the discretion “to determine the kinds and form of information it will consider” to hand down the appropriate sentence. United States v. Giltner, 889 F.2d 1004, 1008 (11th Cir.1989). However, “absent a stipulation or agreement between the parties, an attorney’s factual assertions at a sentencing hearing do not constitute evidence that a district court can rely on.” United States v. Washington, 714 F.3d 1358, 1361 (11th Cir.2013).

If a defendant violates a condition of supervised release, a court may, after considering certain factors set forth in § 3553(a), continue supervised release or revoke the sentence of supervised release and resentence the defendant. 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7)). “For sentences imposed upon revocation of supervised release, the recommended sentencing range is based on the classification of the conduct that resulted in the revocation and the criminal history category applicable at the time” of the original sentencing. United States v. Campbell, 473 F.3d at 1348-49 (11th Cir.2007) (citing U.S.S.G. §§ 7B1.1, 7B1.4). A grade C violation occurs when the conduct giving rise to the violation “constitutes] (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3). The guideline range for a grade C violation and a criminal history category of IV is 6 to 12 months’ imprisonment. Id. § 7B1.4(a). When the underlying felony is class C, the term of imprisonment imposed after revocation of supervised release shall not exceed two years. 18 U.S.C. § 3583(e)(3). A violation of 18 U.S.C. § 659 is punishable by a maximum of 10 years’ imprison-’ ment, and thus, is a class C felony. See id. § 659; id. § 3559 (stating that an offense with- a maximum term of imprisonment “less than twenty-five years but ten or more years” is a class C felony).

*808 If we conclude that the district court did not procedurally err, we consider the “‘substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,’ ” based on the “ ‘totality of the circumstances.’” Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).

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Related

United States v. Garrison
133 F.3d 831 (Eleventh Circuit, 1998)
United States v. Henry Affit Lejarde-Rada
319 F.3d 1288 (Eleventh Circuit, 2003)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Marissa Giselle Massey
443 F.3d 814 (Eleventh Circuit, 2006)
United States v. Michael A. Crisp
454 F.3d 1285 (Eleventh Circuit, 2006)
United States v. Robert Eckhardt
466 F.3d 938 (Eleventh Circuit, 2006)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
United States v. Velasquez Velasquez
524 F.3d 1248 (Eleventh Circuit, 2008)
United States v. Gonzalez
550 F.3d 1319 (Eleventh Circuit, 2008)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Snipes
611 F.3d 855 (Eleventh Circuit, 2010)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Michael Giltner
889 F.2d 1004 (Eleventh Circuit, 1989)
United States v. Gary Washington
714 F.3d 1358 (Eleventh Circuit, 2013)
United States v. Rodriguez
398 F.3d 1291 (Eleventh Circuit, 2005)

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Bluebook (online)
649 F. App'x 805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ariel-milian-ca11-2016.