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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13925
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:18-cr-00086-CEM-GJK-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,


                                  versus


TROY ALEX FREEMAN,

                                                        Defendant - Appellant.

                      ________________________

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

                             (April 29, 2019)

Before MARTIN, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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      Troy Freeman appeals his 84-month sentence, an upward variance from his

applicable Sentencing Guidelines range, which the district court imposed after he

pled guilty to a single count of being a felon in possession of ammunition. After

careful review, we affirm.

                                          I.

      Freeman pled guilty to a single count indictment charging him with being a

felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g), 924(a)(2).

In anticipation of sentencing, the probation office prepared a presentence

investigation report (“PSR”). According to the PSR, Freeman’s long-time

girlfriend and the mother of his children called 911 to report that her boyfriend had

held a gun to her head and threatened to shoot her. Police arrived on the scene and

found Freeman’s girlfriend and her children hiding in a bedroom. The police

found a loaded firearm hidden under a mattress in Freeman’s son’s room.

Freeman’s girlfriend identified the gun as the one Freeman used to threaten her,

and Freeman admitted that the gun was his.

      The PSR applied a base offense level of 14 under U.S.S.G. § 2K2.1. It

applied two enhancements—a four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B) for possession of the ammunition in connection with a felony

(aggravated assault) and a two-level enhancement under U.S.S.G. § 3A1.1(b)(1)

because the offense was committed on a vulnerable victim—a two-level reduction


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for acceptance of responsibility, and a one-level reduction for timely notifying

authorities of his intention to plead guilty. As a result, his total offense level was

17.

      Freeman had a criminal history category of IV. The PSR detailed his

criminal history, which included three convictions for unlawful possession of

firearms, two convictions for possession of drug paraphernalia, a conviction for

possession of cannabis, and a conviction for acquiring a firearm from a licensed

firearms dealer with false statements. The PSR included two additional

convictions for robbery, for which Freeman received no criminal history points. A

footnote in the PSR indicated that the robberies, which were committed in St.

Thomas, U.S. Virgin Islands, were not scored because hurricanes had destroyed

archived records of the offenses.

      Freeman’s total offense level and criminal history category resulted in a

guidelines range of 37-46 months’ imprisonment with a statutory maximum

sentence of 10 years under 18 U.S.C. § 922(g)(1). Despite this calculation, the

probation office recommended a sentence of 60 months’ imprisonment because

Freeman’s criminal history likely was underrepresented by his guidelines range.

      Both the government and Freeman submitted memoranda prior to

sentencing. The government argued that had the PSR accounted for Freeman’s

robberies in the Virgin Islands, his criminal history category would have been V,


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resulting in a guidelines range of 84-105 months’ imprisonment. It therefore

requested an upward variance of at least 60 months’ imprisonment. Freeman

objected to both enhancements to his offense level, disputed the events leading up

to his girlfriend’s 911 call, and requested a sentence at the low end of his

guidelines range.

      At sentencing, the district court overruled Freeman’s objection to the four-

level enhancement for possession of the ammunition in connection with another

felony offense but sustained his objection to the two-level vulnerable victim

enhancement. The court therefore found that Freeman had a total offense level of

15, a criminal history category of IV, and a resulting guidelines range of 30-37

months’ imprisonment. Freeman, through counsel, expressed remorse and

suggested that he needed treatment and counseling rather than incarceration. The

government, conversely, argued that an above-guidelines sentence was warranted

because Freeman’s guidelines range underrepresented his criminal history,

Freeman was on supervised release for a prior felon-in-possession conviction when

he committed the instant offense, and Freeman had made similar arguments in

mitigation in that case, the result of which he received only 15 months’

imprisonment, a significant downward variance.

      The district court explained that it had reviewed Freeman’s criminal history

and the factors set forth in 18 U.S.C. § 3553(a). Specifically, it noted the severity


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of Freeman’s criminal history, including the robberies, and that Freeman’s conduct

harmed and endangered his children. The district court imposed a sentence of 84

months’ imprisonment, a 47-month upward variance from the top of Freeman’s

guidelines range.

      This is Freeman’s appeal.

                                          II.

      We review the reasonableness of a sentence under a deferential abuse of

discretion standard, considering the totality of the circumstances and the

sentencing factors set forth in 18 U.S.C. § 3553(a). Gall v. United States, 552 U.S.

38, 41 (2007). Under § 3553(a), the district court is required to impose a sentence

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

§ 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect

for the law; provide just punishment; deter criminal conduct; protect the public

from the defendant’s future criminal conduct; and effectively provide the

defendant with educational or vocational training, medical care, or other

correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the

nature and circumstances of the offense, the history and characteristics of the

defendant, the kinds of sentences available, the applicable guidelines range, the

pertinent policy statements of the Sentencing Commission, the need to avoid




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

Id. § 3553(a)(1), (3)-(7).

      The party challenging a sentence bears the burden of proving the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A

district court imposes a substantively unreasonable sentence when it fails to afford

consideration to relevant factors that were due significant weight, gives significant

weight to an improper or irrelevant factor, or 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); see United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.

2006) (explaining that a sentencing court’s “single-minded[]” focus on one factor

to the detriment of other relevant sentencing factors “is a symptom of an

unreasonable sentence” (internal quotation marks omitted)).

      Although generally the weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court, United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008), a district court commits a clear

error of judgment when it “considers the proper factors but balances them

unreasonably” and imposes a sentence that “does not achieve the purposes of

sentencing as stated in § 3553(a),” Irey, 612 F.3d at 1189-90 (internal quotation

marks omitted). We will vacate a sentence if we are “left with the definite and

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


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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.” Id. at 1190 (internal

quotation marks omitted).

                                               III.

       Freeman argues that his sentence was substantively unreasonable because it

was significantly higher than his guidelines range and the above-guidelines

sentence of 60 months requested by the probation office and the government.

Specifically, he argues that by varying upward based on his criminal history—

much of which came from firearms offenses—and his use of the firearm to threaten

his girlfriend, the district court essentially double-counted because his guidelines

range already accounted for his firearms history and the aggravated assault of his

girlfriend.

       Regardless of whether we would have imposed the same term of

incarceration had we been tasked with sentencing Freeman in the first instance, we

cannot say that the district court abused its discretion in imposing a sentence of 84

months. In addition to taking Freeman’s firearms offenses into account, the district

court noted the two robberies from the Virgin Islands when it concluded that the

applicable guidelines range underrepresented Freeman’s criminal history. 1 As to



       1
         Freeman does not challenge the district court’s consideration of the robbery offenses in
crafting his sentence.
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the aggravated assault of Freeman’s girlfriend, the district court stated that an

upward variance was warranted because of the need to protect Freeman’s children

from violence, not because Freeman threatened his girlfriend. These

considerations are distinct and not, therefore, akin to double-counting. See United

States v. Phillips, 363 F.3d 1167, 1168 (11th Cir. 2004) (“Impermissible double

counting occurs only when one part of the Guidelines is applied to increase a

defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” (internal quotation

marks omitted)). And, in any event, “a district court can rely on factors in

imposing a variance that it had already considered in imposing an enhancement.”

United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir. 2010). Thus, to the

extent the district court relied on facts that formed the basis for his criminal history

and guidelines enhancements to vary upward from the applicable guidelines range,

the court was within its discretion to do so.

      Freeman has not met his burden of showing that his sentence is substantively

unreasonable. We therefore affirm the sentence the district court imposed.

             AFFIRMED.




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