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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13029
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20064-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCELO MANRIQUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 15, 2015)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
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Marcelo Manrique appeals his life term of supervised release and the
restitution award ordered after he pled guilty to one count of possession of material
involving a minor engaging in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2). On appeal, he argues: (1) the district court erred
procedurally in imposing a life term of supervised release because it failed to
adequately explain the sentence and consider the required 18 U.S.C. § 3553(a)
factors; (2) the life term of supervised release was substantively unreasonable; and
(3) the district court imposed an erroneous restitution amount. We will address
each of these contentions in turn. After review, we affirm.
I. DISCUSSION
As the parties are familiar with the facts of this case, we will not recount
them in detail. We include only those facts necessary to the discussion of each
issue.
A. Procedural Reasonableness
The reasonableness of a sentence is generally reviewed through a two-step
process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). The first
step is to “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,
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selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).
Manrique did not clearly articulate an objection to his sentence on
procedural grounds, and therefore we review his procedural reasonableness claim
for plain error. See United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.
2014) (stating when a party does not clearly articulate an objection on procedural
grounds at the time of sentencing, plain error review is appropriate). The record
shows the district court stated it had considered the § 3553(a) factors before
announcing its total sentence, and added it thought the sentence was fair in light of
all of the § 3553(a) factors. Additionally, the court stated it had considered the
parties’ arguments—such as Manrique’s argument in favor of a 15-year term of
supervised release. Moreover, Manrique does not argue the court improperly
calculated or failed to calculate the Guidelines range, and the record reflects the
court referred to the Guidelines as advisory, indicating it did not treat them as
mandatory. Manrique also does not point to any clearly erroneous facts upon
which the district court based his term of supervised release, nor does the record
reveal any. As to Manrique’s argument the district court did not adequately
explain the sentence, the court explained it did not think Manrique was a danger to
recidivate and the sentence was sufficient but not excessive to perform a deterrent
function. Considering the court imposed a Guidelines term of supervised release,
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the explanation was sufficient to demonstrate the court considered the parties’
arguments and had a reasoned basis for exercising its authority. See Rita v. United
States, 551 U.S. 338, 356 (2007) (“The sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.”). For the
foregoing reasons, Manrique cannot show plain error. United States v. Rodriguez,
398 F.3d 1291, 1298 (11th Cir. 2005) (stating under plain error review, there must
be (1) an error, (2) that is plain, (3) that affect the defendant’s substantial rights,
and (4) seriously affects the fairness or integrity of the judicial proceedings).
B. Substantive Reasonableness
The second step when determining the reasonableness of a sentence is
review for substantive reasonableness. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005). Substantive reasonableness review seeks to “evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” Id. The court must impose a sentence
“sufficient, but not greater than necessary to comply with the purposes” listed in
§ 3553(a)(2), including the need to reflect the seriousness of the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court
must also consider the nature and circumstances of the offense, the history and
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characteristics of the defendant, the kinds of sentences available, the applicable
Guidelines range, pertinent policy statements, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)-(7).
The Sentencing Guidelines state the term of supervised release may be up to
life if the offense at issue is a sex offense, and recommend the statutory maximum
term of supervised release if the offense of conviction is a sex offense. U.S.S.G.
§ 5D1.2(b)(2). The statutorily authorized term of supervised release for a § 2252
offense is five years to life. 18 U.S.C. § 3583(k).
The record shows the district court weighed the § 3553(a) factors when
deciding on a sentence, and it was not necessary for it to lay them out one by one.
See United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating district
courts do not have to conduct an accounting of every § 3553(a) factor and explain
the role each played in the sentencing decision). Still, it specifically discussed the
need for deterrence balanced with its belief Manrique was not a recidivism risk.
Even if the court favored some factors over others, it was within its discretion to do
so. See United States v. Brown, 772 F.3d 1262, 1267 (11th Cir. 2014) (stating it is
within the court’s discretion to afford one factor greater weight). Furthermore, the
sentence imposed by the district court was within the Guidelines range, and was in
accord with the Guidelines’ recommendation that the supervised release term be
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the statutory maximum, which indicates reasonableness. See Talley, 431 F.3d at
788 (“[W]hen the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one.”). Based on
the foregoing, the district court’s decision to impose a life term of supervised
release does not leave a “definite and firm conviction” that it committed a clear
error in judgment. See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc) (stating we will vacate a sentence imposed by a district court only when
left with a “definite and firm conviction that the district court committed a clear
error of judgment”).
C. Restitution
We must resolve jurisdictional issues before addressing the merits of
underlying claims, and have an obligation to review sua sponte whether we have
jurisdiction. United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005).
Absent the filing of a timely notice of appeal, we are without jurisdiction to review
the decision on the merits. Id. We review questions regarding our subject matter
jurisdiction de novo. Id.
We previously held an appeal from a sentencing judgment that deferred
restitution was premature and did not ripen until the district court either (1) ordered
restitution or (2) lost the power to do so after 90 days. See United States v.
Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002). However, the Supreme
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Court later held “[t]he fact that a sentencing court misses the statute’s 90-day
deadline . . . does not deprive the court of the power to order restitution.” Dolan v.
United States, 560 U.S. 605, 611 (2010). We subsequently recognized, in light of
Dolan, the Kapelushnik framework created an injustice because it was possible for
an appeal to never ripen, and addressed whether judgments that deferred the issue
of restitution were nevertheless final for appellate jurisdiction purposes. United
States v. Muzio, 757 F.3d 1243, 1246 (11th Cir.), cert. denied 135 S. Ct. 395
(2014).
In Muzio, the district court entered a judgment sentencing the defendant to
163 months’ imprisonment and stating restitution would be ordered but the
determination of the amount would be deferred for 90 days, with an amended
judgment entered after such determination. Id. at 1245. The defendant appealed
that judgment, and an amended judgment reflecting the amount of restitution was
never entered. Id. at 1245-46. However, we determined judgment was nonetheless
final for purposes of appeal because it sentenced the defendant to a term of
imprisonment. Id. at 1247. We concluded “a judgment imposing a prison sentence
and restitution but leaving the specific amount of restitution unsettled is
immediately appealable.” Id. at 1250. We acknowledged the rule could “lead to
bifurcation of some defendants’ cases,” but stated “[i]f a subsequent judgment is
entered ordering restitution, the defendant may separately appeal that order, and
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the appeal may be heard separately or consolidated with the initial appeal if that
has not yet been resolved,” or a defendant could avoid bifurcation by waiting to
appeal until restitution was resolved. Id. As such, we held when courts enter
sentencing judgments ordering restitution but deferring determination of the
amount, defendants have the option to either (a) timely appeal from the initial
judgment and then, if desired, timely appeal from the subsequent judgment
finalizing the amount of restitution, or (b) timely appeal from the subsequent
judgment only, in which case all issues will be heard in a single appeal. Id. at 1250
n.9.
We do not have jurisdiction to entertain Manrique’s challenge to his
restitution amount because he did not file a notice of appeal designating the
amended judgment setting forth the restitution amount. See Cartwright, 413 F.3d
at 1299. In his reply brief, Manrique argues Muzio is inapplicable because the
amended judgment was never filed in that case, but Muzio’s discussion of a
bifurcated appeals process shows its ruling also applies in situations such as this
where an amended judgment was later filed. See Muzio, 757 F.3d at 1250.
Manrique also argues his premature notice of appeal ripened following the entry of
the amended judgment, but that argument relies on the Kapelushnik framework,
which Muzio’s framework replaced. See id. at 1246. Under Muzio, Manrique was
required to either appeal both the original judgment and the amended judgment, or
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appeal the amended judgment only. Id. at 1250 n.9. Instead, he appealed only the
original judgment. Therefore, Manrique’s challenge to the restitution order is
dismissed for lack of jurisdiction. See Cartwright, 413 F.3d at 1299.
II. DISCUSSION
Accordingly, we affirm Manrique’s sentence as set forth in the district
court’s original judgment, and dismiss his challenge to the restitution amount
reflected in his amended judgment for lack of jurisdiction.
AFFIRMED IN PART, DISMISSED IN PART.
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