                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             Aug. 10, 2009
                              No. 08-16578                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                   D. C. Docket No. 07-00395-CR-WBH-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

AMAL DUHART,

                                                          Defendant-Appellant.


                        ________________________

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

                              (August 10, 2009)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Because we had cited to language from United States v. Sarras, 2009 WL
1661152 (11th Cir. June 16, 2009), which has since been vacated, we hereby sua

sponte VACATE the previous opinion issued in this case, United States v. Duhart,

2009 WL 1965291 (11th Cir. July 9, 2009). In its place, we file this revised

opinion.

      Amal Duhart pleaded guilty to one count of possession of a firearm by a

convicted felon. 18 U.S.C. §§ 922(g) & 924(e). He was sentenced by the district

court to 188 months’ imprisonment. He now appeals the reasonableness of his

sentence.

                         I. Facts and Procedural History

      On August 8, 2008, Duhart, a convicted felon, was arrested following an

incident in which he and another individual allegedly pointed firearms at a crowd

of people. Duhart was indicted and later pleaded guilty to one count of possession

of a firearm by a convicted felon. Due to Duhart’s criminal history, this charge

carried a statutory minimum sentence of fifteen years’ (180 months) imprisonment

and a maximum of life imprisonment. See 18 U.S.C. § 924(e)(1).

      The probation officer prepared a presentence investigation report (“PSI”),

which included documentation of Duhart’s prior convictions, as well as arrests for

which no charges had been filed or the charges had been dismissed. The PSI

initially identified the offense level as 27 and assigned Duhart a criminal history



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category VI. Because Duhart had at least three prior convictions for serious drug

offenses, he qualified as an armed career criminal under U.S.S.G. § 4B1.4 and 18

U.S.C. § 924(e). This status increased Duhart’s offense level to 31, after an

adjustment for acceptance of responsibility. With a total offense level of 31 and a

criminal history category VI, Duhart’s guidelines range was 188 to 235 months’

imprisonment. Duhart did not object to any of the relevant information outlined

above.

      At sentencing, the government requested that Duhart receive a sentence at

the upper end of the guidelines range. Duhart argued that he should receive the

mandatory minimum sentence of 180 months and also noted that he suffered from

rheumatoid arthritis and had been unable to get proper medical

treatment during his incarceration. After hearing the arguments and giving Duhart

an opportunity to personally address the court, the district court said that

“something more than the minimum would be required.” The district court noted

that since Duhart’s last drug conviction, which occurred about eight years earlier,

“he’s been in and out of trouble for a long time. And it’s not just drugs. There are

a lot of assaults and battery and that sort of thing.” The district court then stated

that “gun charges are very serious situations,” and, after it considered the

guidelines and the factors set forth in 18 U.S.C. § 3553(a), the court concluded that



                                            3
the “bottom of the guideline sentence is fair” and sentenced Duhart to 188 months’

imprisonment.

       Duhart now appeals the substantive reasonableness of this sentence.

                                       II. Discussion

       We review the substantive reasonableness of a sentence for abuse of

discretion, based on the “totality of the circumstances.” United States v. Beckles,

565 F.3d 832, 845 (11th Cir. 2009).1

       Duhart argues that the sentence imposed is unreasonable because the district

court gave too much weight to the number of times that he was arrested but not

convicted, and gave no weight to the inability of the Bureau of Prisons to

accommodate his medical condition.

       The party challenging the reasonableness of a sentence “bears the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). It is sufficient for the district court to acknowledge that it has

considered the § 3553(a) factors, but it need not explicitly discuss each of them.

United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). “The weight to be



       1
         Generally, we first review for procedural errors, such as treating the guidelines as
mandatory or failing to consider §3553(a) mitigating factors. Beckles, 565 F.3d at 845. In the
instant case, however, Duhart only appeals the substantive reasonableness of his sentence.

                                                4
accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)

(quotation omitted). Even though a sentence is not per se reasonable by virtue of

residing within the guidelines range, “there is a range of reasonable sentences from

which the district court may choose, and when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Talley, 431 F.3d at 788.

      At the outset, we note that the district court imposed a sentence that was just

eight months greater than the statutory minimum sentence, and which resided at

the lowest end of the forty-seven month range, as established by the guidelines.

Second, even though the district court noted that Duhart had been “in and out of

trouble” since the time of his last drug conviction in 2000, the district court did not

necessarily rely on arrests for which Duhart had not been convicted in reaching this

conclusion. Duhart’s PSI reveals that he was convicted of forgery in the first

degree in 2005 and two counts of simple battery and one count of disorderly

conduct in 2006. This evidence, particularly the simple battery convictions,

supports the district court’s conclusion that “he’s been in and out of trouble for a

long time. And it’s not just drugs. There are a lot of assaults and battery and that

sort of thing.” Third, even if the district court considered arrests in addition to



                                            5
convictions, a district court may consider arrests in determining the defendant’s

character, so long as those arrests are not used to statutorily enhance the

defendant’s sentence. See United States v. Peagler, 847 F.2d 756, 758 (11th Cir.

1988) (permitting the district court’s consideration of uncounseled convictions to

conclude that the defendant “did not have much respect for the law”). Finally, the

district court considered Duhart’s health condition and concluded that

“[r]heumatoid arthritis is probably not all that uncommon among the prison

population” and that the Bureau of Prisons should be able to evaluate and treat that

condition.

      We thus conclude that Duhart’s sentence of 188 months’ imprisonment is

substantively reasonable. Accordingly, we AFFIRM.




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