            Case: 18-11834   Date Filed: 02/26/2019   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11834
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:16-cr-00184-LMM-JFK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

CHOICE PHILLIPS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (February 26, 2019)

Before WILSON, JORDAN, and HULL, Circuit Judges.

PER CURIAM:
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       Choice Phillips pled guilty to possessing a firearm as a felon, in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court sentenced him to 43

months’ imprisonment and three years of supervised release. That custodial sentence

was below both the ten-year statutory maximum penalty for the offense and the

advisory guideline range of 46 to 57 months’ imprisonment. Despite the district

court’s downward variance, Mr. Phillips argues that his 43-month sentence was

substantively unreasonable because the district court failed to adequately consider

evidence of an untreated brain injury that allegedly inhibited his ability to control

his impulses and learn from past mistakes. Mr. Phillips also argues that, to the extent

that the district court did consider his brain injury, it used that evidence to aggravate

his sentence instead of mitigate it. Upon review of the record and the parties’ briefs,

we affirm. 1


       We review the substantive reasonableness of a defendant’s sentence for abuse

of discretion. See Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Irey,

612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). In order to impose a reasonable

sentence, a district court must consider all of the applicable factors set out in 18

U.S.C. § 3553(a). See United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th



1
  At sentencing, Mr. Phillips objected to his sentence as both procedurally and substantively
unreasonable. On appeal, however, Mr. Phillips only argues substantive unreasonableness. We
therefore do not consider whether his sentence is procedurally unreasonable. See United States v.
Ardley, 242 F.3d 989, 990 (11th Cir. 2001).
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Cir. 2015). We leave the weight afforded to any particular § 3553(a) factor to the

district court’s discretion, which we do not disturb unless we are “left with the

definite and firm conviction that the district court committed a clear error of

judgment” and imposed an unreasonable sentence. United States v. Clay, 483 F.3d

739, 743 (11th Cir. 2007). For example, “a district court abuses its discretion when

it (1) fails to afford consideration to relevant factors that were due significant weight,

(2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear

error of judgment in considering the proper factors.” Irey, 612 F.3d at 1189. A clear

error of judgment occurs if the court “considers the proper factors but balances them

unreasonably.” Id.


      Two factors support the reasonableness of Mr. Phillips’ 43-month sentence.

First, the sentence was substantially below § 924(a)(2)’s ten-year statutory

maximum penalty. See Rosales-Bruno, 789 F.3d at 1256–57 (noting that the fact that

a sentence is below the statutory maximum penalty “is a consideration favoring its

reasonableness”). Second, the sentence was below Mr. Phillips’ advisory guideline

range of 46 to 57 months. See United States v. Sweeting, 437 F.3d 1105, 1107 (11th

Cir. 2006) (noting that a downward variance from the sentencing guidelines

indicates reasonableness). Although it is not dispositive, the fact that Mr. Phillips’

sentence was below both the statutory maximum and the advisory guideline range

suggests that his sentence was not unreasonable.

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      To counter these facts, Mr. Phillips argues that the district court failed to

adequately consider evidence that he suffered from an untreated brain injury and

mental health issues. And, to the extent the district court did consider his mental

health issues, Mr. Phillips argues that it used that evidence to aggravate his sentence.

We find these arguments unpersuasive.


      The record shows that, in determining the appropriate sentence, the district

court did consider evidence that Mr. Phillips suffered from an untreated brain injury

and mental health issues. At the beginning of the sentencing hearing, the district

court acknowledged the evidence that Mr. Phillips offered to mitigate his sentence

and stated that it had “reviewed the report in detail prior to [the sentencing hearing].”

D.E. 41 at 3. After explaining that its downward variance was motivated in part to

ensure that Mr. Phillips received credit for his time served, the district court stated

that it “ha[d] concerns about [Mr. Phillips’] lack of treatment for some of the other

issues.” D.E. 41 at 30. See § 3553(a)(1) (considering the “history and characteristics

of the defendant”). The district court also encouraged Mr. Phillips to find healthier

ways to deal with his mental health issues and noted that prison, although not an

ideal place, had some resources to help him. See D.E. 41 at 31; §§ 3553(a)(2),

(a)(2)(D) (considering “the need for the sentence” to provide the defendant with

“medical care[ ] or other correctional treatment”).



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       The district court then considered other relevant § 3553(a) factors—

particularly Mr. Phillips’ substantial criminal history—to formulate his sentence. Cf.

Rosales-Bruno, 789 F.3d at 1256 (concluding that an upward variance from the

sentencing guidelines was reasonable in light of defendant’s earlier crimes and

because it was below the statutory maximum). Specifically, the district court

explained that “[t]here was necessity for a serious sentence” because this was Mr.

Phillips’ third conviction for possessing a firearm as a felon. See D.E. 41 at 30. See

also §§ 3553(a)(2), (a)(2)(A) (considering “the need for the sentence . . . to reflect

the seriousness of the offense”). The district court also expressed concern for the

public’s safety because Mr. Phillips was committing property crimes while carrying

a firearm and “those are circumstances where things turn bad and ugly very quickly.”

D.E. 41 at 29. See §§ 3553(a)(2), (a)(2)(C) (considering “the need for the sentence .

. . to protect the public”).


       In our view, the district court did not abuse its discretion by sentencing Mr.

Phillips to 43 months’ imprisonment. His sentence was below both the statutory

maximum and the advisory guideline range, and although Mr. Phillips presented

mitigating evidence related to his mental health, his criminal history and the district

court’s legitimate concern for public safety supported a 43-month sentence.


       We affirm Mr. Phillips’ sentence.


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AFFIRMED.




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