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                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15475
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 6:08-cr-00241-CEM-GJK-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

GRALIN H. NELSON,

                                              Defendant - Appellant.

                       ________________________

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

                            (September 20, 2018)

Before JORDAN, BRANCH and FAY, Circuit Judges.

PER CURIAM:
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      Gralin Nelson appeals his sentence of 21 months’ imprisonment and ten

years of supervised release, which the district court imposed after his supervised

release was revoked for two admitted violations of his conditions of release: (1) the

unauthorized possession of a cell phone and (2) failing to disclose a new email

address. Mr. Nelson argues that his sentence was both procedurally flawed and

substantively unreasonable. We disagree, and affirm his sentence.

                                         I

      In March of 2009, Mr. Nelson was sentenced to 108 months in prison for

receiving and possessing child pornography. Ten months after his release from

prison, Mr. Nelson’s probation officer found him outside his home with a cell

phone in his hands and earphones in, streaming and listening to music from

YouTube. The probation officer seized the phone, and thereafter reported Mr.

Nelson as having committed three violations of his supervised release: (1) using a

computer or online service without approval, (2) failing to register an email

address, and (3) viewing images or videos depicting minors in the nude or in

sexually explicit positions. But at Mr. Nelson’s final revocation hearing, the

government moved to dismiss what was the third violation because a forensic

examination of the phone determined that Mr. Nelson had only accessed

pornography featuring adults. Mr. Nelson admitted committing the other two

violations.


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       At the sentencing hearing, the district court found that Mr. Nelson had a

criminal history category I and an advisory guidelines range of four to ten months’

imprisonment based on the two admitted violations. The district court determined

that the maximum statutory penalty was two years and the maximum term of

supervised release was life. Neither party objected to these conclusions. The

probation office recommended 24 months’ imprisonment, and the government

argued for a serious sentence based on the § 3553(a) factors, particularly

deterrence and protection of the public. Mr. Nelson requested a sentence of six

months’ imprisonment.

       The district court imposed a sentence of 21 months’ imprisonment followed

by ten years of supervised release. It reviewed in detail the child pornography

offenses for which Mr. Nelson had just finished serving a 108-month sentence and

voiced concern that Mr. Nelson had confessed in writing to a polygraph examiner

that he had recently been watching child pornography three to four times per week.

The district court clarified that although none of the images or videos Mr. Nelson

had accessed on his phone actually contained minors, Mr. Nelson had

demonstrated his “strong urge” by downloading “Lolita” pornography, which uses

adult women who role-play as minors. 1

                                              II

1
 Mr. Nelson was not prohibited by the conditions of his supervised release from possessing adult
pornography.
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      We review sentences upon revocation of supervised release for

reasonableness. See United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir.

2006). In reviewing sentences, we first look for significant procedural error, such

as miscalculating the advisory guideline range, treating the guidelines as

mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, basing a sentence

on clearly erroneous facts, or failing to adequately explain the sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007); United States v. Cubero, 754 F.3d 888,

892 (11th Cir. 2014). Thereafter, we assess the sentence’s substantive

reasonableness under an abuse of discretion, taking into account the totality of the

circumstances and the § 3553(a) factors. See United States v. Trailer, 827 F.3d

933, 936 (11th Cir. 2016).

                                         III

      Mr. Nelson first argues that the district court improperly based his sentence

on unproven and erroneous facts (relating to the dismissed alleged violation that he

had viewed child pornography) contained in the probation officer’s initial report.

But at the sentencing hearing, the district court specifically stated: “I’m not going

to hold him to account for [the child pornography] stuff that the government can’t

prove . . . but there’s a reason this looks really bad.” D.E. 79 at 27. Further, the

district court also explained, that it was “gravely concerned” by the nature of Mr.

Nelson’s violations: “[I]t’s interesting how all of the violations directly correlate


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to the underlying offense for which he served 108 months in prison . . . He violated

[supervised release] in a way consistent with his doing what he did before he went

to prison, and I’m concerned about that.” Id. The district court then warned that

this worry would be reflected in Mr. Nelson’s sentence. Even though Mr. Nelson

had not actually viewed child pornography, the evidence before the district court

indicated that he had attempted to do so, and thought that he had done so. The

district court was entitled to consider what Mr. Nelson had attempted to do, and we

therefore disagree with Mr. Nelson that the district court procedurally erred by

basing his sentence on the third and unproven dismissed violation.

      Next, Mr. Nelson contends that the district court erred procedurally by

intentionally making his sentence longer to allow him time to complete a sexual

offender mental health treatment program in prison, which the district court was

not permitted to do. See Tapia v. United States, 564 U.S. 319, 335 (2011) (“[A]

court may not impose or lengthen a prison sentence to enable an offender to

complete a treatment program or otherwise to promote rehabilitation.”).

      The government argued that a sentence of at least a year would allow Mr.

Nelson to complete a 9- to 12-month sex offender treatment program through the

Bureau of Prisons, but the district court clearly stated that it was not permitted to

“sentence [a defendant] just to put [him] into a [treatment] program.” Id. at 8. The




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government also argued that the § 3553(a) factors pointed toward a serious

sentence, particularly those of deterrence and protecting the public.

      The district court explained at length its great anxiety stemming from the

fact that, less than a year after having been released from nine years in prison for

receipt and possession of child pornography, Mr. Nelson admitted to violating two

special conditions and “was found with the phone searching, using the terms

‘Lolita’ and ‘incest.’” Id. at 26, 27. It is true that at the close of the sentencing

hearing, the district court made clear its “overriding concern” that Mr. Nelson be

recommended to a BOP facility that offers a sex offender treatment program. But

the district court made this statement in the context of choosing a facility, after

having pronounced the sentence, not while deciding the sentence.             A mere

recommendation for a prison which offers such a program does not mean that the

district court fashioned the sentence length to meet that purpose. The district court,

therefore, demonstrated that it understood what it was not allowed to do, as well as

what is within the bounds of its authority to do. See Tapia, 564 U.S. at 334-35.

We do not find procedural error in the district court’s discussion of options for

rehabilitation in prison.

      Finally, Mr. Nelson argues that his sentence is substantively unreasonable

because it was more than double the suggested guidelines range and only two

months shorter than the statutory maximum. The sentence is made less reasonable,


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he contends, because of the district court’s procedural errors and because the

sentence was based on “scant permissible evidence.” Br. of Appellant at 30.

      Our review of the record does not show that the district court failed consider

relevant factors that were due significant weight, gave significant weight to an

improper factor, or committed a clear error of judgment in its consideration of the

proper factors. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en

banc). The district court emphasized the close temporal proximity between Mr.

Nelson’s release from prison for his underlying conviction and the new arrest for

violations of supervised release. It also explained at length why a more serious

sentence was warranted for Mr. Nelson, even though greater than the advisory

guidelines range, and arrived at a sentence based on the purposes of sentencing.

See § 3553(a). Considering the totality of the circumstances, we find no abuse of

discretion.

                                        IV

      Mr. Nelson’s sentence is affirmed.

      AFFIRMED.




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