USA v. Roberto Delgado

Filing

Opinion issued by court as to Appellant Roberto Delgado. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12857
Non-Argument Calendar
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D.C. Docket No. 1:02-cr-20334-KMM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2014)
Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Roberto Delgado appeals the revocation of his supervised release and his
sentence of 23 months of imprisonment. See 18 U.S.C. § 3583(e)(3). Delgado

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argues that the evidence was insufficient to prove he committed a new offense of
burglary and that the magistrate judge clearly erred by crediting the victim’s
testimony, but Delgado failed to object to the decision of the magistrate judge and
waived the right to appellate review of the revocation of his supervised release.
Delgado also argues that his sentence is procedurally and substantively
unreasonable because he was not “giv[en] a single reason for the sentence,” but the
district court sufficiently explained its chosen sentence. We affirm.
I. BACKGROUND
In September 2002, Delgado was convicted of conspiring to possess with
intent to distribute five grams or more of crack cocaine and a detectable amount of
cocaine hydrochloride. 21 U.S.C. §§ 846, 841(b)(1)(B), (C). The district court
sentenced Delgado to 120 months of imprisonment, followed by 5 years of
supervised release. We affirmed Delgado’s sentence. United States v. Delgado,
No. 02-15091 (11th Cir. June 3, 2003).
After Delgado completed his sentence of imprisonment and was on
supervised release, his probation officer filed a petition to revoke. The petition
charged Delgado for being arrested for battery of his former girlfriend, Olga
Rosales, Fla. Stat. § 784.03, and resisting arrest without violence, id. § 843.02.
Delgado admitted that he had violated a condition of his supervised release by
resisting arrest, see id., and the district court sentenced him to 13 months of
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imprisonment followed by 47 months of supervised release. Delgado appealed and
argued that his sentence of imprisonment was unreasonable, but we affirmed.
United States v. Delgado, No. 12-11131 (11th Cir. Sept. 7, 2012).
After Delgado was released on his second term of supervised release, he was
arrested and charged in a Florida court for aggravated battery of Rosales, Fla. Stat.
§ 784.045, and burglary of an occupied vehicle, id, § 810.02(3)(d). A probation
officer filed a petition to revoke that described the history of Delgado’s case and
his new offenses. The petition provided that Delgado had denied any wrongdoing
and had identified his new girlfriend as an eyewitness to the incident, but the
girlfriend admitted to an investigating officer that she had not been with Delgado at
the time of the incident. The petition also provided that Delgado’s offenses were
Grade B violations for which he faced, with a criminal history of V, an advisory
guideline range between 18 and 24 months of imprisonment, see United States
Sentencing Guidelines Manual § 7B1.4(a), and a maximum sentence of five years
of imprisonment, see 18 U.S.C. § 3583(b)(1). The district court referred Delgado’s
case to a magistrate judge.
During an evidentiary hearing on the motion to revoke, Rosales and Delgado
provided different accounts of the incident. Rosales testified that Delgado
appeared at her workplace and followed her to her boyfriend’s vehicle; he held
open her passenger’s side door and leaned inside the vehicle to swat at her and her
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boyfriend; he entered the back of the vehicle ostensibly to retrieve his car keys
from the floorboard and took a walking cane that was lying on the back seat; he
left the back door ajar and walked away; and he threw the cane at Rosales and
struck her on the hip after she exited the vehicle to close the back door. Rosales
identified a photograph taken by a police officer shortly after the incident that
showed a bruise on her hip. Delgado testified that he received a telephone call
from Rosales asking him to meet her after work; he approached Rosales’s
boyfriend to ask him to end Rosales’s telephone calls; he leaned into the vehicle to
finish his conversation with Rosales’s boyfriend; he used a cane lying on the back
seat to retrieve his keys from the back floorboard; and he “dropped the cane” on
the ground next to the vehicle.
The magistrate judge credited Rosales’s testimony and found that Delgado’s
version of events “just [didn’t] square.” “[B]ased upon [Rosales’s] testimony,” the
magistrate judge ruled that Delgado had not committed aggravated battery, a
felony, see Fla. Stat. § 784.045, but he had committed the lesser-included offense
of battery, a misdemeanor, see id. § 784.03(1)(a)(1), (b). The magistrate judge
asked whether he was “wrong in any way, in terms of the aggravated
battery/battery determination,” and Delgado “agree[d] with the Court’s legal
analysis, preserving the factual objection.” Delgado contested the burglary charge,
but the magistrate judge found that Delgado committed burglary of an occupied
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vehicle when he entered the back of the vehicle occupied by Rosales and her
boyfriend and “grabbed the cane in order to use the cane or take the cane.” The
magistrate judge said that he would “issue a docket order that incorporate[d]” his
findings and told Delgado that he would be “give[n] . . . the normal objection
period” to file “any objections” he had to the order.
The magistrate judge filed a written report containing detailed findings that
Delgado had violated his supervised release by committing the new offenses of
battery and burglary of an occupied conveyance. The report stated that,
“[p]ursuant to Local Magistrate Rule 4(b), the parties ha[d] fourteen (14) days
from the date of this Report and Recommendation to serve and file written
objections, if any, with the . . . United States District Judge.” The report also
provided that the “[f]ailure to timely file objections shall bar the parties from a de
novo determination by the District Judge of an issue covered in the report and bar
the parties from attacking on appeal the factual findings contained herein.”
Delgado did not file an objection, and “[a]fter review of the Report and
Recommendation, review of the record, and having received no objections thereto,
. . . the Magistrate Judges Report and Recommendation [was] . . . Adopted” by the
district court.
At Delgado’s sentencing hearing, the district court adjudicated Delgado
guilty of violating the conditions of his supervised release. The district court
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determined that Delgado faced an advisory guidelines range between 18 and 23
months of imprisonment, and defense counsel and the district court “agree[d]” that
Delgado “would have to be taken off probation” if he received a sentence of “23
months.” Delgado declined to make a statement, after which the government
stated that “a guideline sentence [would be] sufficient.” The district court
“carefully considered the statements of all parties and the information contained in
the violation report”; “determined that a sentence within the guideline range [was]
appropriate”; and sentenced Delgado to 23 months of imprisonment. The written
judgment for revocation provided that the district court had “carefully considered
the statements of all parties and the information contained in the violation report
and the Magistrate Judge’s Report and Recommendation.”
STANDARDS OF REVIEW
“Arguments that are waived before the district court may not be reviewed
on appeal.” United States v. Garcia-Sandobal, 703 F.3d 1278, 1282 (11th Cir.
2013). We review a sentence imposed following the revocation of supervised
release for reasonableness, United States v. Sweeting, 437 F.3d 1105, 1106–07
(11th Cir. 2006), which “merely asks whether the trial court abused its discretion,”
Rita v. United States, 551 U.S. 338, 351, 127 S. Ct. 2456, 2465 (2007).
DISCUSSION

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Delgado contests the decision to revoke his supervised release and the
penalty that he received. Delgado challenges the findings of the magistrate judge
that he committed burglary of an occupied conveyance, see Fla. Stat.
§ 810.02(3)(d), and that Rosales’s narrative of the burglary and the battery were
more credible. Delgado also argues that his sentence is procedurally and
substantively unreasonable. We consider each argument in turn.
A. Delgado Waived His Right to Challenge the Decision to Revoke his Supervised
Release.
A defendant waives his right to challenge a ruling by relinquishing
intentionally an objection or abandoning an opportunity to object. See United
States v. Lewis, 492 F.3d 1219, 1221–22 (11th Cir. 2007). This rule of waiver
applies to dispositive decisions of a magistrate judge. Fed. R. Crim. P. 59(b)(2).
Rule 59(b)(2) provides that a defendant has 14 days to object to the report and
recommendation of the magistrate judge. Id. If the defendant fails to file a written
objection, he “waives [the] right to [a] review” of that decision. Id.
Delgado waived his right to appellate review of the revocation of his
supervised release. Delgado argues that the magistrate judge misapplied the
burglary statute in the report and recommendation and clearly erred by crediting
Rosales’s testimony, but Delgado waived those arguments by failing to object to
the report. See id.; Garcia-Sandobal, 703 F.3d at 1283. Delgado argues that his
arguments are preserved for this Court’s review because he objected during his
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evidentiary hearing and because the “district court conducted an independent
review of the record,” but Rule 59(b) does not contain any exceptions to the
requirement to file a written objection to the report and recommendation. See Fed.
R. Crim. P. 59(b). Delgado cites decisions in support of his preservation argument,
but those decisions predate the adoption of Rule 59. As explained in the advisory
committee notes to the Rule, the “waiver provision is intended to establish the
requirements for objecting in a district court in order to preserve appellate review
of magistrate judges’ decisions.” Id. 2005 advisory committee notes.
B. Delgado’s Sentence is Reasonable.
Delgado argues that his sentence is unreasonable procedurally and
substantively. Both arguments fail. We address each in turn.
Delgado’s sentence is procedurally reasonable. “[T]he district court [is not
required] to state on the record that it has explicitly considered each of the
[sentencing] factors or to discuss each of [those] factors,” United States v. Scott,
426 F.3d 1324, 1329 (11th Cir. 2005), “so long as the record reflects the court’s
consideration of many of those factors,” United States v. Ghertler, 605 F.3d 1256,
1262 (11th Cir. 2010). See United States v. Dorman, 488 F.3d 936, 944 (11th Cir.
2007). The district court was familiar with Delgado’s case from having sentenced
him for his drug crimes and following the first revocation of his supervised release.
The district court “carefully considered” the arguments of the parties, the petition
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to revoke that described Delgado’s procedural history and his new offenses, and
the findings in the report and recommendation, and “determined that a sentence
within the guideline range [was] appropriate.” Those statements reveal that the
district court considered Delgado’s history and characteristics, see 18 U.S.C.
§ 3553(a)(1); his repeated offenses, see id.; the need for the sentence to deter
Delgado from committing future similar crimes and to protect Rosales and the
public at large, see id. § 3553(a)(2)(B), (C); and the kinds of sentences Delgado
faced and the advisory sentencing range for Delgado’s violations, see id.
§ 3553(a)(3). See Dorman, 488 F.3d at 944; Scott, 426 F.3d at 1329–30. “The
length and amount of detail describing the district court’s reasoning depends on the
circumstances,” Ghertler, 605 F.3d at 1262, and there was no need for the district
court to elaborate on its sentence when Delgado did not express an opinion on the
issue. Delgado likens his situation to that in United States v. Veteto, 920 F.2d 823
(11th Cir. 1991), where we held insufficient a cursory explanation that a sentence
“seem[ed] right,” id. at 824, 826–27, but at Delgado’s sentencing hearing the
district court stated that it had considered several sources of information to
determine an appropriate sentence. We conclude that the district court sufficiently
explained the reasons for its chosen sentence.
Delgado’s sentence of 23 months of imprisonment is also substantively
reasonable. Delgado twice violated his supervised release, and a sentence of 13
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months of imprisonment following his first violation of his supervised release
failed to deter him from further misconduct. The district court reasonably
determined that imposing a sentence at the high end of Delgado’s guidelines range
was necessary to achieve the statutory purposes of sentencing. See 18 U.S.C.
§ 3553(a). We “ordinarily . . . expect a sentence within the Guidelines range to be
reasonable,” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005), and
Delgado provides no reason for us to conclude otherwise.
We AFFIRM the revocation of Delgado’s supervised release.

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