Case: 13-10426   Date Filed: 07/25/2013   Page: 1 of 7




                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10426
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:10-cr-10003-JEM-2



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

versus

SANDRA SUAREZ,
a.k.a. CHULI,

                                                       Defendant - Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (July 25, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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      Sandra Suarez appeals her sentence, imposed upon revocation of probation,

of 10 months’ imprisonment and 2 years’ supervised release, arguing that (1) the

district court should have reduced her guideline level to account for acceptance of

responsibility, (2) her sentence was procedurally unreasonable, and (3) her 10-

month sentence is unreasonably long. We find no merit to these arguments and

affirm.

      We begin with Suarez’s claim that the district court erred in not affording

her a guideline reduction for acceptance of responsibility. We review the district

court’s decision whether to adjust for acceptance of responsibility for clear error,

and “[a] district court’s determination that a defendant is not entitled to acceptance

of responsibility will not be set aside unless the facts in the record clearly establish

that a defendant has accepted personal responsibility.” United States v. Amedeo,

, 1320–21 (11th Cir. 2004) (internal quotation marks omitted).

      We discern no error, clear or otherwise, in the district court’s refusal to grant

Suarez a guideline reduction for acceptance of responsibility. Chapter 7 of the

United States Sentencing Guidelines governs sentences imposed upon revocation

of probation or supervised release. The guidelines clearly provide that the only

factors to be considered in determining the applicable guideline range in a

revocation case are the grade of violation and the criminal history category of the

offender, as calculated at the time of sentencing. U.S.S.G. § 7B1.4(a). Because

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the offender’s potential acceptance of responsibility is not a valid consideration in

determining the guideline range upon revocation of probation, the district court did

not err in refusing to grant Suarez a guideline reduction for her purported

acceptance of responsibility.

      We next consider Suarez’s argument that her sentence is unreasonable. Our

reasonableness inquiry includes two distinct elements: we first determine whether

a sentence is procedurally reasonable, and then turn our attention to whether the

sentence is, on the whole, substantively reasonable. See United States v. Gonzalez,

, 1323 (11th Cir. 2008) (per curiam). We review the reasonableness

of the sentence imposed by the district court “under [the] deferential abuse-of-

discretion standard.” Gall v. United States, 

, 41, 

, 591

(2007); see United States v. Mitsven, 

, 1266 n.1 (11th Cir. 2006)

(noting that the analysis for revocation of probation is “essentially the same” as

that for supervised release); United States v. Sweeting, 

, 1106–07

(11th Cir. 2006) (per curiam) (explaining that sentences upon revocation of

supervised release are reviewed for abuse of discretion).

      In reviewing the reasonableness of a sentence, we consider the factors

enumerated in 18 U.S.C. § 3553(a). United States v. Pugh, 

, 1188–

89 (11th Cir. 2008); see 18 U.S.C. § 3565(a) (providing that district court must

consider the § 3553(a) sentencing factors when sentencing a defendant upon

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revocation of probation). These factors include: (1) the nature and circumstances

of the offense; (2) the history and characteristics of the defendant; (3) the need for

the sentence to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense; (4) the need to deter criminal

conduct; (5) the need to protect the public from further crimes of the defendant; (6)

the need to provide the defendant with educational or vocational training or

medical care; (7) the kinds of sentences available; (8) the guideline range; (9)

policy statements of the United States Sentencing Commission; (10) the need to

avoid unintended sentencing disparities; and (11) the need to provide restitution to

victims. See 18 U.S.C. § 3553(a). The party challenging a sentence “bears the

burden of establishing that the sentence is unreasonable in the light of both th[e]

record and the factors in [§] 3553(a).” United States v. Talley, 

, 788

(11th Cir. 2005) (per curiam).

      To be procedurally reasonable, the district court must properly calculate the

guideline range, treat the guidelines as advisory rather than mandatory, consider all

of the § 3553(a) factors, and adequately explain the sentence imposed. See United

States v. Chavez, 

, 1364 n.13 (11th Cir. 2009). In explaining the

sentence, the district court should set forth enough information to satisfy the

reviewing court of the fact that it has considered the parties’ arguments and has a

reasoned basis for making its decision, Rita v. United States, 

, 356,

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, 2468 (2007), but “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, 

, 1329

(11th Cir. 2005). Instead, the district court’s explanation suffices if it is clear from

the explanation that the court considered a number of the relevant sentencing

factors. See United States v. Dorman, 

, 944 (11th Cir. 2007).

      We find no procedural infirmity in Suarez’s sentencing. Although the

district court never explicitly stated that it was applying the § 3553(a) factors in

sentencing Suarez, it did state that it was imposing a sentence pursuant to the

Sentencing Reform Act of 1984, of which § 3553(a) is a part. See Act of Oct. 12,

1984, Pub. L. No. 98-473, § 212, 98 Stat. 1837. More importantly, the record

reveals that the district court did in fact weigh several of the § 3553(a) factors in

sentencing Suarez, including: (1) her personal characteristics and history, including

her repeated failures to take advantage of favorable sentences; (2) the guideline

range; (3) the nature of her probation violation, which included an arrest for grand

larceny, credit card fraud, forgery, and passing of counterfeit checks; and (4) the

fact that Suarez had tested positive for cocaine while on probation and had been

arrested on multiple occasions during the pendency of her probationary term. This

explanation satisfies us that the district court considered the parties’ arguments and

exercised its reasoned judgment in imposing Suarez’s ten-month sentence. See

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, 127 S. Ct. at 2468. The sentence was therefore procedurally

reasonable.

      Once we determine that a sentence is procedurally sound, we then examine

whether the sentence is substantively reasonable in light of the totality of the

circumstances, including the degree of any variance from the guideline range.

, 128 S. Ct. at 597. In determining whether a sentence is

substantively reasonable, we engage in a “deferential” assessment of whether the

sentence imposed is sufficient, but not greater than necessary, to comply with the

purposes of sentencing set forth in § 3553(a)(2). 

. “In our

evaluation of a sentence for reasonableness, we recognize that there is a range of

reasonable sentences from which the district court may choose, and when the

district court imposes a sentence within the advisory [g]uidelines range, we

ordinarily will expect that choice to be a reasonable one.” 

vacate

and remand for a new sentencing “if, but only if, we are left with the definite and

firm conviction that the district court committed a clear error of judgment in

weighing the § 3553(a) factors by arriving at a sentence that lies outside the range

of reasonable sentences dictated by the facts of the case.” United States v. Irey,

, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).

      Turning to the facts at hand, Suarez’s ten-month sentence was within her

unchallenged guideline range, so we expect it to be substantively reasonable.

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United States v. Joseph, 

, 1105 (11th Cir. 2013) (“Although we have

not adopted a presumption that a sentence within the guideline range is reasonable,

we have stated that ordinarily we would expect a sentence within the [g]uidelines

range to be reasonable.” (internal quotation marks omitted)). Suarez argues that

the district court imposed a substantively unreasonable sentence because it did not

give her proper credit for accepting responsibility for her probation violations. We

disagree. In sentencing Suarez, the district court confronted an offender who had

repeatedly violated her probation by committing theft, failing to abstain from the

use of illegal drugs, and failing to abide by the terms of the restitution payment

schedule from her original offense. In light of these facts, we think the district

court’s decision to impose a ten-month custodial sentence was not only reasonable,

but eminently so. Because the district court’s original non-custodial sentence

apparently failed to achieve the purposes of sentencing (Suarez did, after all,

continue to violate the law), it stands to reason that a term of incarceration might

better achieve the desired effect. Needless to say, we are not left with “the definite

and firm conviction” that the district court committed a clear error in judgment and

arrived at a sentence lying outside the range of reasonable sentences dictated by the

facts of this case. 

.

      AFFIRMED.




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