Case: 14-13029   Date Filed: 07/15/2015   Page: 1 of 9


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13029
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:14-cr-20064-JEM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARCELO MANRIQUE,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 15, 2015)



Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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         Marcelo Manrique appeals his life term of supervised release and the

restitution award ordered after he pled guilty to one count of possession of material

involving a minor engaging in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(4)(B) and (b)(2). On appeal, he argues: (1) the district court erred

procedurally in imposing a life term of supervised release because it failed to

adequately explain the sentence and consider the required 18 U.S.C. § 3553(a)

factors; (2) the life term of supervised release was substantively unreasonable; and

(3) the district court imposed an erroneous restitution amount. We will address

each of these contentions in turn. After review, we affirm.

                                    I. DISCUSSION

         As the parties are familiar with the facts of this case, we will not recount

them in detail. We include only those facts necessary to the discussion of each

issue.

A. Procedural Reasonableness

         The reasonableness of a sentence is generally reviewed through a two-step

process. United States v. Pugh, 

, 1190 (11th Cir. 2008). The first

step is to “ensure that the district court committed no significant procedural error

such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,




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selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 

, 51 (2007).

      Manrique did not clearly articulate an objection to his sentence on

procedural grounds, and therefore we review his procedural reasonableness claim

for plain error. See United States v. Vandergrift, 

, 1307 (11th Cir.

2014) (stating when a party does not clearly articulate an objection on procedural

grounds at the time of sentencing, plain error review is appropriate). The record

shows the district court stated it had considered the § 3553(a) factors before

announcing its total sentence, and added it thought the sentence was fair in light of

all of the § 3553(a) factors. Additionally, the court stated it had considered the

parties’ arguments—such as Manrique’s argument in favor of a 15-year term of

supervised release. Moreover, Manrique does not argue the court improperly

calculated or failed to calculate the Guidelines range, and the record reflects the

court referred to the Guidelines as advisory, indicating it did not treat them as

mandatory. Manrique also does not point to any clearly erroneous facts upon

which the district court based his term of supervised release, nor does the record

reveal any. As to Manrique’s argument the district court did not adequately

explain the sentence, the court explained it did not think Manrique was a danger to

recidivate and the sentence was sufficient but not excessive to perform a deterrent

function. Considering the court imposed a Guidelines term of supervised release,


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the explanation was sufficient to demonstrate the court considered the parties’

arguments and had a reasoned basis for exercising its authority. See Rita v. United

States, 

, 356 (2007) (“The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.”). For the

foregoing reasons, Manrique cannot show plain error. United States v. Rodriguez,

, 1298 (11th Cir. 2005) (stating under plain error review, there must

be (1) an error, (2) that is plain, (3) that affect the defendant’s substantial rights,

and (4) seriously affects the fairness or integrity of the judicial proceedings).

B. Substantive Reasonableness

      The second step when determining the reasonableness of a sentence is

review for substantive reasonableness. United States v. Talley, 

,

788 (11th Cir. 2005). Substantive reasonableness review seeks to “evaluate

whether the sentence imposed by the district court fails to achieve the purposes of

sentencing as stated in section 3553(a).” 

must impose a sentence

“sufficient, but not greater than necessary to comply with the purposes” listed in

§ 3553(a)(2), including the need to reflect the seriousness of the offense, deter

criminal conduct, and protect the public from the defendant’s future criminal

conduct. See 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court

must also consider the nature and circumstances of the offense, the history and


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characteristics of the defendant, the kinds of sentences available, the applicable

Guidelines range, pertinent policy statements, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 

(3)-(7).

      The Sentencing Guidelines state the term of supervised release may be up to

life if the offense at issue is a sex offense, and recommend the statutory maximum

term of supervised release if the offense of conviction is a sex offense. U.S.S.G.

§ 5D1.2(b)(2). The statutorily authorized term of supervised release for a § 2252

offense is five years to life. 18 U.S.C. § 3583(k).

      The record shows the district court weighed the § 3553(a) factors when

deciding on a sentence, and it was not necessary for it to lay them out one by one.

See United States v. Robles, 

, 1328 (11th Cir. 2005) (stating district

courts do not have to conduct an accounting of every § 3553(a) factor and explain

the role each played in the sentencing decision). Still, it specifically discussed the

need for deterrence balanced with its belief Manrique was not a recidivism risk.

Even if the court favored some factors over others, it was within its discretion to do

so. See United States v. Brown, 

, 1267 (11th Cir. 2014) (stating it is

within the court’s discretion to afford one factor greater weight). Furthermore, the

sentence imposed by the district court was within the Guidelines range, and was in

accord with the Guidelines’ recommendation that the supervised release term be


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the statutory maximum, which indicates reasonableness. See 

(“[W]hen the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one.”). Based on

the foregoing, the district court’s decision to impose a life term of supervised

release does not leave a “definite and firm conviction” that it committed a clear

error in judgment. See United States v. Irey, 

, 1190 (11th Cir. 2010)

(en banc) (stating we will vacate a sentence imposed by a district court only when

left with a “definite and firm conviction that the district court committed a clear

error of judgment”).

C. Restitution

      We must resolve jurisdictional issues before addressing the merits of

underlying claims, and have an obligation to review sua sponte whether we have

jurisdiction. United States v. Cartwright, 

, 1299 (11th Cir. 2005).

Absent the filing of a timely notice of appeal, we are without jurisdiction to review

the decision on the merits. 

questions regarding our subject matter

jurisdiction de novo. 

held an appeal from a sentencing judgment that deferred

restitution was premature and did not ripen until the district court either (1) ordered

restitution or (2) lost the power to do so after 90 days. See United States v.

Kapelushnik, 

, 1093-94 (11th Cir. 2002). However, the Supreme


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Court later held “[t]he fact that a sentencing court misses the statute’s 90-day

deadline . . . does not deprive the court of the power to order restitution.” Dolan v.

United States, 

, 611 (2010). We subsequently recognized, in light of

Dolan, the Kapelushnik framework created an injustice because it was possible for

an appeal to never ripen, and addressed whether judgments that deferred the issue

of restitution were nevertheless final for appellate jurisdiction purposes. United

States v. Muzio, 

, 1246 (11th Cir.), cert. denied 

(2014).

      In Muzio, the district court entered a judgment sentencing the defendant to

163 months’ imprisonment and stating restitution would be ordered but the

determination of the amount would be deferred for 90 days, with an amended

judgment entered after such determination. 

The defendant appealed

that judgment, and an amended judgment reflecting the amount of restitution was

never entered. 

However, we determined judgment was nonetheless

final for purposes of appeal because it sentenced the defendant to a term of

imprisonment. 

We concluded “a judgment imposing a prison sentence

and restitution but leaving the specific amount of restitution unsettled is

immediately appealable.” 

We acknowledged the rule could “lead to

bifurcation of some defendants’ cases,” but stated “[i]f a subsequent judgment is

entered ordering restitution, the defendant may separately appeal that order, and


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the appeal may be heard separately or consolidated with the initial appeal if that

has not yet been resolved,” or a defendant could avoid bifurcation by waiting to

appeal until restitution was resolved. 

we held when courts enter

sentencing judgments ordering restitution but deferring determination of the

amount, defendants have the option to either (a) timely appeal from the initial

judgment and then, if desired, timely appeal from the subsequent judgment

finalizing the amount of restitution, or (b) timely appeal from the subsequent

judgment only, in which case all issues will be heard in a single appeal. 

n.9.

       We do not have jurisdiction to entertain Manrique’s challenge to his

restitution amount because he did not file a notice of appeal designating the

amended judgment setting forth the restitution amount. See 

. In his reply brief, Manrique argues Muzio is inapplicable because the

amended judgment was never filed in that case, but Muzio’s discussion of a

bifurcated appeals process shows its ruling also applies in situations such as this

where an amended judgment was later filed. See 

.

Manrique also argues his premature notice of appeal ripened following the entry of

the amended judgment, but that argument relies on the Kapelushnik framework,

which Muzio’s framework replaced. See 

Under Muzio, Manrique was

required to either appeal both the original judgment and the amended judgment, or


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appeal the amended judgment only. 

n.9. Instead, he appealed only the

original judgment. Therefore, Manrique’s challenge to the restitution order is

dismissed for lack of jurisdiction. See 

.

                                 II. DISCUSSION

      Accordingly, we affirm Manrique’s sentence as set forth in the district

court’s original judgment, and dismiss his challenge to the restitution amount

reflected in his amended judgment for lack of jurisdiction.

      AFFIRMED IN PART, DISMISSED IN PART.




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