Case: 14-14255   Date Filed: 07/29/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14255
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:08-cr-00110-RBD-DAB-21



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOEY ROJAS,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 29, 2015)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Joey Rojas appeals the district court’s imposition, following revocation of

his supervised release, of a 10-month sentence of imprisonment and a new 3-year

term of supervised release. He argues that his revocation sentence is unreasonable

because it resulted in an unwarranted sentencing disparity between him a similarly

situated defendant. He also insists that the district court erred by failing to reduce

the term of supervised release by the amount of time imposed in the custodial

portion of the sentence. We affirm as to the first issue but vacate as to the second.

                                           I

      We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Sweeting, 

, 1106–07 (11th Cir.

2006) (per curiam). The party challenging the sentence on appeal bears the burden

of showing that it is unreasonable. United States v. Holt, 

, 1269

(11th Cir. 2015).

      Under 18 U.S.C. § 3583(e), a district court may revoke the term of

supervised release and impose a term of imprisonment after considering specific

factors set forth in 18 U.S.C. § 3553(a), including: (1) the nature and circumstances

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

deterrence; (4) the need to protect the public; (5) the Sentencing Guidelines and

policy statements of the Sentencing Commission; (6) the need to avoid




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unwarranted sentence disparities among defendants; (7) the need to provide

restitution to victims; and (8) the need to give the defendant correctional treatment.

      The district court placed great weight on the need to protect the public. It

based this consideration on Rojas’s history of drug abuse. The court, therefore,

considered appropriate factors and reasonably exercised its discretion. See United

States v. Clay, 

, 743 (11th Cir. 2007) (explaining that the weight

given to any one factor is committed to the discretion of the district court).

      Rojas points to another defendant who was sentenced only to time served

upon revocation of his supervised release, and Rojas claims his own sentence is

disparate from that defendant’s. But the record contains no information about that

defendant’s criminal history, the danger he posed to society, or the reason he was

given a revocation sentence of time served. And an unwarranted sentencing

disparity can exist only if the defendant and a comparator are similarly situated.

United States v. Mozie, 

, 1289 (11th Cir. 2014). Rojas has not met

his burden of showing that this other defendant was similarly situated, because his

unwarranted-disparity argument does not compare “apples . . . to apples.” See

United States v. Docampo, 

, 1101 (11th Cir. 2009) (quotation

omitted).




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                                                  II

       Rojas argues that the district court erred by failing to reduce his term of

supervised release by the length of his custodial revocation sentence. He raises

this argument for the first time on appeal, so we review it only for plain error. See

United States v. Vandergrift, 

, 1307 (11th Cir. 2014).1

       When a court revokes supervised release and imposes a term of

imprisonment, the court may also order an additional term of supervised release

after imprisonment. 18 U.S.C. § 3583(h). But “[t]he length of such a term of

supervised release shall not exceed the term of supervised release authorized by

statute for the offense that resulted in the original term of supervised release, less

any term of imprisonment that was imposed upon revocation of supervised

release.” 

conviction carried a maximum authorized term of 3 years’

supervised release. See 8 U.S.C. § 1325(c) (marriage fraud is punishable by up to

5 years’ imprisonment); 18 U.S.C. § 3559(a)(4) (offenses punishable by 5 years’

imprisonment are class D felonies); 

(the maximum term of

       1
          Plain error is: (1) an error; (2) that is plain; and (3) affects substantial rights. United
States v. Turner, 

, 1276 (11th Cir. 2007). We may exercise our discretion to
notice a forfeited error if it (4) “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United Stated v. Madden, 

, 1322 (11th Cir. 2013). An error
is plain when it is clear or obvious under current law. United States v. Olano, 

, 734,

, 1777 (1993). An error affects substantial rights if there is a reasonable
probability that there would have been a different result if the error had not occurred. United
States v. Shelton, 

, 1332 (11th Cir. 2005).

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supervised release for class D felonies is 3 years). Upon revocation, after imposing

the 10-month sentence of imprisonment, the district court could impose a

maximum additional term of supervised release of only 26 months—3 years minus

the 10-month revocation sentence of imprisonment. As the government concedes,

imposition of a term of supervised release greater than that authorized by law is

plain error. And the error affected Rojas’s substantial rights because, but for the

error, his term of supervised release would have been shorter. Finally, the error

seriously affected the fairness, integrity, and public reputation of judicial

proceedings.

      We vacate district court’s judgment with respect to the period of supervised

release, and remand the case with instructions that the district court resentence

Rojas to serve no more than 26 months of supervised release.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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