[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13911 MARCH 12, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:08-cr-20250-CMA-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
ELIEZER LAZO-MARTINEZ,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 12, 2012)
Before BARKETT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Eliezer Lazo-Martinez appeals the 24-month sentence imposed after the
revocation of his supervised release. Martinez argues that the sentencing court
erred by failing to consider the Guidelines range for the offense and relying on
unsubstantiated allegations to calculate his sentence.
I.
In 2008, Lazo-Martinez pled guilty to conspiring to smuggle aliens into the
United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(1). He was sentenced to
18 months in prison, to be followed by two years of supervised release. After
completing his sentence of imprisonment, Lazo-Martinez began serving his
supervised release on July 2, 2009.
On July 14, 2010, Lazo-Martinez and Pedro Luis Blanco Veldes were found
about fifty miles south of Key Largo, Florida, captaining a boat that had been
reported as missing from its dock in Key Largo earlier in the day. Lazo-Martinez
and Veldes maintained that they had purchased the boat—valued at about
$80,000—for $10,000 from an unknown man in a truck. Lazo-Martinez was
arrested for the state crimes of grand theft and dealing in stolen property. Six days
later, Lazo-Martinez’s parole officer filed a petition charging Lazo-Martinez with
two violations of his supervised release. The district court granted the petition and
ordered that an arrest warrant be issued for Lazo-Martinez.
2
On August 9, 2011, the district court held a revocation hearing during which
Lazo-Martinez pled guilty to committing the Florida offense of grand theft and
thereby violating the terms of his supervised release. During the hearing, the
prosecutor claimed that Lazo-Martinez had obtained the boat in order to smuggle
aliens, going “straight back to what he was doing before, which is alien
smuggling.” Based on this alleged recidivist behavior, the prosecutor requested
that the court impose a sentence of two years—the statutory maximum. Other than
the circumstantial evidence that Lazo-Martinez was in a south-bound boat stocked
with a large quantity of fuel, no factual support was offered for the accusation that
Lazo-Martinez had been engaged in alien smuggling.
Lazo-Martinez objected to the government’s comments about potential alien
smuggling and requested that the district court disregard “the government’s
speculation” and confine its consideration to “the evidence before [the court].”
Lazo-Martinez also contended that the purpose of his boat trip was to visit his ill
mother in Cuba. He concluded by admitting responsibility for the violation and
requesting a sentence of eight-to-nine months of imprisonment.
The district court decided that Lazo-Martinez merited a “serious sentence”
because he had stolen a vessel and was attempting to commit an offense “similar”
to his original offense. The court then revoked Lazo-Martinez’s supervised
3
release and imposed a sentence of two years of imprisonment. Following
imposition of the sentence, the district court solicited objections to its findings or
the manner in which the sentence had been announced. Lazo-Martinez replied:
“As to the sentence, Judge, we object that it’s unduly harsh.” During the
revocation hearing, neither party nor the district court made reference to the
Sentencing Guidelines or stated the advisory Guidelines range for the offense,
which was four-to-ten months of imprisonment.
II.
We review the sentence a district court imposed after revocation of
supervised release for reasonableness. United States v. Velasquez, 524 F.3d 1248,
1252 (11th Cir. 2008) (per curiam). Our reasonableness review of the sentence a
district court imposes consists of two parts. United States v. Pugh, 515 F.3d 1179,
1190 (11th Cir. 2008). First, we examine whether the sentence is procedurally
reasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
If we find that the sentence is procedurally reasonable, we then consider whether
the sentence is substantively reasonable. Id.
In our review of the procedural reasonableness of a sentence, 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
4
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.”
Id. The district court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.” Id.
at 50, 128 S. Ct. at 597. “The review for substantive unreasonableness involves
examining the totality of the circumstances, including an inquiry into whether the
statutory factors in § 3553(a) support the sentence in question.” United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).
We generally review the reasonableness of a sentence under an
abuse-of-discretion standard. Gall, 552 U.S. at 51, 128 S. Ct. at 597. “A district
court abuses its discretion when it (1) fails to afford consideration to relevant
factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc) (citation omitted), cert. denied, 131 S. Ct. 1813 (2011).
However, when a party raises an objection for the first time on appeal, his claim is
subject to plain error review. United States v. Gresham, 325 F.3d 1262, 1265
(11th Cir. 2003).
III.
5
Lazo-Martinez first argues that the district court’s calculation of his
sentence was procedurally unreasonable because it relied heavily upon an
erroneous fact—that he had been engaged in alien smuggling during the boat theft.
During the revocation hearing, Lazo-Martinez expressed that he believed it to be
improper to consider these allegations of alien smuggling during his sentencing
and urged the judge to focus on the evidence of the case rather than the
government’s suppositions. The government contends that these statements
during the hearing did not constitute a sufficient objection to the procedural
reasonableness of the sentence imposed. Therefore, the government argues that
plain error review should apply. However, “[t]he purpose of the plain error rule is
to enforce the requirement that parties object to errors at trial in a timely manner
so as to provide the trial judge an opportunity to avoid or correct any error, and
thus avoid the costs of reversal.” United States v. Sorondo, 845 F.2d 945, 948–49
(11th Cir. 1988). Because Lazo-Martinez’s statements were sufficient to give the
district court clear notice that he objected to the consideration of the alien
smuggling allegations during his sentencing, we do not find plain error review to
be appropriate. We will review this element of the procedural reasonableness of
Lazo-Martinez’s sentence under the abuse-of-discretion standard. See Gonzalez,
550 F.3d at 1324.
6
The district court made a finding of fact that Lazo-Martinez was “attempting
to commit a similar offense to the one that [he] w[as] on supervision for.” Given
that the only offense for which Lazo-Martinez was on supervision was conspiracy
to commit alien smuggling, the district court’s finding of fact was undoubtedly
that Lazo-Martinez was again attempting to engage in alien smuggling.
We may only set aside findings of facts that are clearly erroneous. Fed. R.
Civ. P. 52(a); United States v. Walker, 490 F.3d 1282, 1299 (11th Cir. 2007).
However, “[o]ur deference to the district court is not unlimited, . . . and we will
hold a finding of fact clearly erroneous if the record lacks substantial evidence to
support it.” Thelma C. Raley, Inc. v. Kleppe, 867 F.2d 1326, 1328 (11th Cir.
1989) (per curiam). During the revocation hearing, there was evidence presented
that Lazo-Martinez’s original conviction involved alien smuggling by boat and
that Lazo-Martinez was pleading guilty to theft of a boat. These were the only
facts presented to support the government’s assertion that Lazo-Martinez had
stolen the boat in an attempt to engage in alien smuggling. At the close of the
hearing, the district court made an unexplained finding that Lazo-Martinez had
attempted to commit the crime of alien smuggling in conjunction with the boat
theft. We find that this statement lacks substantial evidence to support it and
therefore set it aside as clearly erroneous.
7
We must now determine whether reliance upon this erroneous factual
finding rendered the calculation of Lazo-Martinez’s sentence procedurally
unreasonable. The district court provided very few justifications for the post-
revocation sentence it imposed. First, it recited Lazo-Martinez’s original offense
and sentence. Then, the district court stated that Lazo-Martinez had stolen a
vessel and had attempted to “commit a similar offense” to his original
offense—alien smuggling. The court characterized the act as a “most serious
offense” meriting a “serious sentence.” Although it is unclear, it seems that the
court’s comment about a “serious offense” concerned the attempted alien
smuggling, although it may have referenced the purported joint action of boat theft
and alien smuggling. Regardless, it is evident that the court gave significant
weight to its finding that Lazo-Martinez had been attempting alien smuggling
again and that this was a major part of the court’s justification for imposing a
sentence equal to the statutory maximum. Because the court’s factual finding was
clearly erroneous, giving such significant weight to it was an abuse of discretion.
See Irey, 612 F.3d at 1189.
IV.
Lazo-Martinez also contends that the district court erred by failing to state
the Guidelines range or reference the Guidelines at all during his revocation
8
hearing. We agree with Lazo-Martinez that failure to discuss the relevant
Guidelines sentencing range was a significant procedural error. Gall, 552 U.S. at
51, 128 S. Ct. at 597. However, because Lazo-Martinez failed to object to this
issue previously, we are confined to reviewing this claim under the plain error
standard. Gresham, 325 F.3d at 1265. The plain error standard requires a
showing not only that an error occurred that was plain under established law, but
also that the plain error affected substantial rights and seriously affected the
fairness of the judicial proceedings. Id. In order for an error to have affected
substantial rights, it usually “must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778
(1993). “Normally . . . the defendant must make a specific showing of prejudice to
satisfy the ‘affecting substantial rights’ prong . . . .” Id. at 735, 113 S. Ct. at 1778.
Lazo-Martinez’s brief argues incorrectly for de novo review of his claim,
and therefore fails to address the necessary elements of the plain error test. In the
absence of any allegations of prejudice to his substantial rights, Lazo-Martinez
does not make a proper showing of reversible plain error.
V.
Given the district court’s procedural error in relying heavily upon an
erroneous finding of fact, we vacate the sentence imposed and remand for re-
9
sentencing.
VACATED AND REMANDED.
10