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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-13270
Non-Argument Calendar
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D.C. Docket No. 6:15-cr-00186-PGB-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL OMAR SEPULVEDA-SANTIAGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 7, 2019)
Before TJOFLAT, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Rafael Sepulveda-Santiago (Sepulveda) appeals his 30-month,
above-guideline sentence, imposed following the revocation of his supervised
release. Sepulveda argues the district court imposed a procedurally unreasonable
sentence when it considered the factors provided in 18 U.S.C. § 3553(a)(2)(A),
which he claims was impermissible under 18 U.S.C. § 3583, which governs the
revocation of supervised release. He further argues his sentence was substantively
unreasonable because the district court failed to conduct a breach-of-trust analysis
and committed an error in judgment in weighing the relevant sentencing factors.
After review, we affirm.
I. DISCUSSION
A. Procedural Reasonableness
As to Sepulveda’s claim the district court imposed a procedurally
unreasonable sentence when it impermissibly considered § 3553(a)(2)(A) in the
context of his revocation proceeding, he acknowledges he did not raise this
objection below, and we therefore review the procedural reasonableness of his
sentence only for plain error. See United States v. Vandergrift, 754 F.3d 1303,
1307 (11th Cir. 2014) (“[B]ecause [the defendant] did not object to the procedural
reasonableness at the time of his sentencing, we review for plain error.”). The
plain error standard requires the defendant to show (1) an error; (2) that is plain;
(3) that affects substantial rights; and (4) that seriously affects the fairness,
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integrity, or public reputation of judicial proceedings. United States v. Massey,
443 F.3d 814, 818 (11th Cir. 2006).
We previously have concluded that a district court’s consideration of
§ 3553(a)(2)(A) in the supervised-release revocation context was not plain error.
See 754 F.3d at 1308-09. Specifically, we concluded in Vandergrift that “[t]he text
of § 3583(e) does not . . . explicitly forbid a district court from considering
§ 3553(a)(2)(A).” Id. We also noted the Supreme Court had not addressed
whether it was an error to consider § 3553(a)(2)(A) in the revocation context, other
circuits were split on the issue, and we had not addressed the issue in a published
opinion. Id. at 1308. The same analysis applies here, as there has been no
intervening decision from this Court or the Supreme Court definitively addressing
this issue. It remains the case that § 3583(e) does not explicitly forbid a district
court’s consideration of the factors provided in § 3553(a)(2)(A), and, given the
lack of precedent addressing the issue, any alleged error could not have been plain.
B. Substantive Reasonableness
After determining that a district court’s sentence was procedurally
reasonable, we review the substantive reasonableness of the sentence under the
abuse of discretion standard and the totality of the circumstances. See Gall v.
United States, 552 U.S. 38, 51 (2007). As the party challenging the substantive
reasonableness of his sentence, Sepulveda bears the burden of establishing that the
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sentence is unreasonable in light of the record, the § 3553(a) factors, and the
substantial deference afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015). He has failed to meet this burden.
Sepulveda argues the district court did not conduct a proper breach-of-trust
analysis, instead focusing too heavily on the leniency of his original sentence and
the inflammatory facts of an earlier revocation petition, but the record suggests
otherwise. When viewed in proper context, the district court’s comments are
consistent with a breach-of-trust analysis. See U.S.S.G. Ch. 7, Pt. A, intro. cmt.
3(b) (explaining that “at revocation the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the
seriousness of the underlying violation and the criminal history of the violator”).
While the court certainly reviewed Sepulveda’s history—including the facts
supporting three prior petitions for revocation of his supervised release—it
ultimately did so in support of its conclusion that “supervised release is not
something [Sepulveda] take[s] seriously.”
To the extent Sepulveda argues the district court otherwise improperly
weighed the § 3553(a) factors in fashioning its sentence, the record, again, belies
his assertion. The court had discretion to decide the weight it gave to different
factors, and there was ample evidence supporting explicitly permissible factors
under § 3583(e), such as the substantial need to deter him from further violations
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and to protect the public. See Rosales-Bruno, 789 F.3d at 1254; 18 U.S.C.
§ 3583(e). In light of the multiple opportunities Sepulveda had been given to
reform himself, and his consistent failure to comply with the terms of his
supervised release, the court reasonably concluded that “[t]o impose a sentence
within the guidelines would defeat the purposes of deterrence.”
Additionally, Sepulveda’s sentence was well below the statutory maximum,
another indication of its substantive reasonableness. See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Under the totality of the
circumstances, we are not “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a)
factors.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(quotation omitted).
II. CONCLUSION
Accordingly, Sepulveda’s sentence was procedurally and substantively
reasonable, and we affirm.
AFFIRMED.
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