                    Case: 12-11655           Date Filed: 11/13/2012   Page: 1 of 4

                                                                          [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                               No. 12-11655
                                           Non-Argument Calendar
                                         ________________________

                               D.C. Docket No. 1:11-cr-00554-RWS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllll                                      llPlaintiff-Appellee,

                                                   versus

ANDREW SUTTON,

llllllllllllllllllllllllllllllllllllllll                                  Defendant-Appellant.

                                     ________________________

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

                                            (November 13, 2012)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-11655     Date Filed: 11/13/2012    Page: 2 of 4

      In appealing his prison sentence of 96 months for distribution of child

pornography, in violation of 18 U.S.C. § 2252(a)(2), (b), Andrew Sutton presents

one issue: whether the sentence is substantively unreasonable. The term of

Sutton’s sentence is 12 months below the applicable guideline sentence range of

108 to 135 months’ confinement. Sutton contends that it is unreasonable because,

among other things, the District Court gave too much weight to the content of his

online chats, and failed to give enough weight to his diminished capacity. Relying

on United States v. Portman, 599 F.3d 633 (7th Cir. 2010), he argues that, because

his diminished capacity directly led to his offense, he was entitled to a 36- to

48-month downward variance from the guideline sentence range. We are not

persuaded and accordingly affirm.

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

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,

169 L.Ed.2d 445 (2007). We reverse only if “left with the definite and firm

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

the [18 U.S.C.] § 3553(a) factors by arriving at a sentence that lies outside the

range of reasonable sentences dictated by the facts of the case.” United States v.

Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813

(2011) (quotation omitted).

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      The District Court did not abuse its discretion by imposing a sentence 12

months below the guideline range. The court properly considered the nature and

circumstances of Sutton’s offense, his personal characteristics, the available

sentencing alternatives, and the sentencing goals of § 3553(a)(2). Sutton’s offense

was particularly serious because his actions bordered on production of child

pornography. He engaged in numerous online conversations with children and

parents of minor children, encouraging them to engage in bizarre sexual acts and

send him nude photographs.

      The record reflects that the court sufficiently considered evidence regarding

Sutton’s mental capacity. When exercising its discretion in weighing this

evidence, the court found that Sutton had “issues” and was not “operating at full

speed.”

      Sutton cites Portman for the proposition that a court must address

uncontested evidence of a defendant’s diminished capacity and must make a

finding of whether the defendant’s diminished capacity contributed substantially

to the offense. Portman, 599 F.3d at 637-38 (holding that the district court’s

alleged failure to make findings on the defendant’s capacity was harmless because

the defendant’s capacity did not substantially contribute to the commission of his

crime). But Portman does not require the court, as Sutton seems to argue, to

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              Case: 12-11655    Date Filed: 11/13/2012   Page: 4 of 4

impose a downward variance greater than 10% of the low end of the guideline

range where the defendant’s diminished capacity contributed to his offense. What

the record shows here is that the District Court sufficiently considered evidence of

Sutton’s diminished capacity, as contemplated by Portman and § 3553(a)(1), in

fashioning his sentence.

             AFFIRMED.




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