[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 30, 2006
Nos. 06-10511 & 06-10512 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
97-00724-CR-SH
99-00287-CR-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO NUNEZ,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(October 30, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Eduardo Nunez appeals his thirteen month sentence for violating the terms
of his supervised release. He claims that he was not given an opportunity to object
to his sentence, in violation of the requirements set forth in United States v. Jones,
899 F.2d 1097 (11th Cir. 1990), overruled in part on other grounds, United States
v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc) and asks us to remand
the case for resentencing. We find that even if a Jones violation occurred, the
record does not preclude our appellate review. Additionally, we find that the
sentence is reasonable, and accordingly we affirm the decision below.
Background
In two separate cases, Nunez was convicted for multiple counts of filing
false claims for pay ment with the IRS, in violation of 18 U.S.C. § 287, and for
failure to appear for a show cause hearing as required by the conditions of his
release, in violation of 18 U.S.C. § 3146. He received a three-year term of
supervised release in each case.
After testing positive for cocaine shortly thereafter, the terms of his release
were modified to include, inter alia, requirements that he participate in a
community correctional center (“CCC”) for ninety days and maintain full-time
employment. Subsequently, Nunez again tested positive for cocaine and was sent
back to the CCC for a period of up to six months. Before the end of this period,
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Nunez was discharged from the CCC for failure to participate in the program,
leading the government to request that his supervised release be revoked in favor
of incarceration with the Bureau of Prisons. At his revocation hearing, Nunez
admitted that he had violated the terms of the supervised release, but requested
alternatives to incarceration in order to continue medical treatment. The
government argued that Nunez had been given several chances to comply with the
terms of his supervised release and had failed to do so. The government further
argued that the Bureau of Prisons was equipped to address his medical needs. The
district court agreed and sentenced Nunez to thirteen months imprisonment. The
judge did not elicit objections from the parties after imposing the sentence.
Nunez claims that the sentence was imposed without consideration of his
medical condition and is therefore unreasonable. He notes that he did not object to
the sentence, but argues that United States v. Jones applies to supervised release
proceedings and that the district court judge’s failure to elicit objections is a
violation of its requirements. He asks us to vacate the sentence and remand the
case to the district court to give him the opportunity to raise an objection to the
reasonableness of the sentence.
Discussion
In Jones, we exercised our supervisory authority over district courts and
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“instruct[ed] the district courts to elicit fully articulated objections, following
imposition of sentence, to the court’s ultimate findings of fact and conclusions of
law.” Jones, 899 F.2d at 1102. The rule was created to ensure that all objections
are raised below and that the grounds for each objection are clearly stated. Id.
While we will normally vacate sentences imposed in violation of Jones, we have
held that a technical violation of Jones does not require remand when the record is
sufficient for review. See United States v. Cruz, 946 F.2d 122, 124 n.1 (11th Cir.
1991).
We have never explicitly held that Jones applies to supervised release
proceedings and we need not decide that issue in this case since we find that the
record is sufficient for our review. We note that the violations of the terms of
Nunez’s release were presented to the district court and are largely accepted by
Nunez for purposes of this appeal. Additionally, Nunez presented information
about his medical condition to the district court judge and it forms part of the
record on appeal. Thus, remand is not necessary.
We review a defendant’s ultimate sentence for reasonableness in light of the
factors set forth in 18 U.S.C. § 3553(a). See United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005). Nunez argues that the district court imposed an
unreasonable sentence because it did not refer to the § 3553(a) factors or his health
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concerns, focusing instead on his criminal history and whether the government
agreed that he should be sentenced to the high end of the Guideline range. He
argues that the court should instead have analyzed and accounted for his medical
issues in determining his sentence.
A sentence imposed upon the revocation of a supervised release term is
reviewed for reasonableness in light of the factors outlined in § 3553(a). United
States v. Sweeting, 437 F.3d 1105, 1106-1107 (11th Cir. 2006). Upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, a district court may revoke the term of supervised release and
impose a term of imprisonment after considering certain § 3553(a) factors. 18
U.S.C. § 3583(e). These factors include: (1) the nature and circumstances of the
offense and history and characteristics of the defendant; (2) the need for the
sentence to afford adequate deterrence; and (3) the need for the sentence to provide
needed medical care. 18 U.S.C. § 3553(a). We have held that “nothing . . .
requires the district court to state on the record that it has explicitly considered
each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). An indication that the
district court has considered a defendant’s arguments and the § 3553(a) factors is
sufficient. Id.
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In this case, the district court did not explicitly mention the § 3553(a)
factors, but they were included in the report and recommendation from the
probation officer and were implicated in the arguments of the parties before the
court. For instance, the government requested a sentence at the high end of the
guidelines in light of Nunez’s repeated violations while Nunez sought clemency
based on his medical needs. Although they were not mentioned, we are satisfied
that the § 3553(a) factors were considered by the court. See United States v.
Thomas, 446 F.3d 1348, 1357 (11th Cir. 2006) (finding that the district court
considered § 3553(a) factors where the parties’ arguments and PSI’s calculations
outlined them).
We additionally find that the district court, in considering these factors, was
reasonable in choosing to impose a thirteen month sentence. The sentence falls
within the Guidelines range, and we ordinarily expect such sentences to be
reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). The court
was entitled to find that Nunez’s repeated violations outweighed his medical
concerns and to sentence accordingly. We therefore affirm.
AFFIRMED.
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