            Case: 16-12777   Date Filed: 10/17/2017   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12777
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:15-cr-00027-RH-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

DONALD C. BRIGMAN,

                                              Defendant - Appellant.

                       ________________________

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

                             (October 17, 2017)

Before MARCUS, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
              Case: 16-12777    Date Filed: 10/17/2017   Page: 2 of 8


      Donald Brigman appeals his 24-month sentence, imposed following his

guilty plea to one count of assaulting his spouse by strangulation and attempted

strangulation, in violation of 18 U.S.C. § 113(a)(8). Mr. Brigman argues that the

district court committed impermissible double counting by applying certain

increases to his offense level. He also argues that his sentence is unreasonable.

Upon review of the record and consideration of the parties’ briefs, we affirm.

                                         I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      On October 17, 2014, Mr. Brigman went to an Air Force base where his

wife, S.C., worked and engaged in a verbal altercation with her. S.C. told

Mr. Brigman they would talk after she returned home. When S.C. returned home

late that night, an argument ensued and Mr. Brigman forcefully pushed S.C.’s head

into a shower wall. He placed S.C. in a headlock and pulled her out of the shower,

continuing to choke her for approximately 20 seconds. When S.C. attempted to

leave the bathroom, Mr. Brigman slammed her head against the door. He

physically prevented S.C. from leaving the home or placing a call, and again

choked her for approximately 10 to 15 seconds, telling her he was going to kill her.

He then made her take prescribed medication that made her sleepy, and laid in bed




                                         2
              Case: 16-12777     Date Filed: 10/17/2017   Page: 3 of 8


with her until she fell asleep. S.C. suffered minor scratches and bruising, a cervical

spine strain, and a contusion.

      Mr. Brigman pled guilty to one count of assaulting his spouse by

strangulation and attempted strangulation, in violation of 18 U.S.C. § 113(a)(8).

On the government’s motion, the district court dismissed a second count of assault

by striking, beating, and wounding, in violation of 18 U.S.C. § 113(a)(4).

      The PSI recommended a total adjusted offense level of 17 and a criminal

history category of I, resulting in an advisory guideline range of 24 to 30 months’

imprisonment. The guideline range included a base offense level of 14 under

U.S.S.G. § 2A2.2, a three-level increase under § 2A2.2(b)(3)(A) because S.C.

sustained bodily injury, and another three-level increase under § 2A2.2(b)(4)

because the offense involved strangling, suffocating, or attempting to strangle or

suffocate a spouse. The PSI also recommended a three-level reduction based on

Mr. Brigman’s acceptance of responsibility and cooperation.

      Mr. Brigman objected to the PSI, arguing that the two increases constituted

double counting and that he should have received a significantly lower sentence.

The district court rejected Mr. Brigman’s objections and sentenced him to

24 months’ imprisonment.

                                         II




                                          3
              Case: 16-12777     Date Filed: 10/17/2017   Page: 4 of 8


      Mr. Brigman argues that the three-level increases under §§ 2A2.2(b)(3)(A)

and (b)(4) constituted double counting because the commentary to § 2A2.2 defines

aggravated assault as an assault that could involve serious bodily injury as well as

one that could involve strangling or suffocating. Thus, he says, the base offense

level under § 2A2.2(a) already incorporated the concerns addressed by the special

offense characteristics set forth in §§ 2A2.2(b)(3)(A) and (b)(4).

      We review a claim of double counting under the guidelines de novo. See

United States v. Webb, 665 F.3d 1380, 1382 (11th Cir. 2012). “Impermissible

double counting occurs only when one part of the [g]uidelines 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 [g]uidelines.” Id.

Double counting a factor is permissible if the Sentencing Commission “intended

that result and each guideline section in question concerns conceptually separate

notions relating to sentencing.” Id. We presume that, absent a specific direction to

the contrary, the Sentencing Commission “intended to apply separate sections

cumulatively” and therefore “a defendant asserting a double counting claim has a

tough task.” Id.

      The applicable guideline provision for violations of 18 U.S.C. § 113(a)(8) is

§ 2A2.2, which covers aggravated assault. It specifically provides for a number of

increases in the base offense level for certain special offense characteristics,


                                          4
              Case: 16-12777    Date Filed: 10/17/2017   Page: 5 of 8


including a three-level increase for non-serious and non-permanent bodily injury,

see § 2A2.2(b)(3)(A), and a three-level increase for offenses involving strangling,

suffocating, or attempting to strangle or suffocate a spouse or partner, see

§ 2A2.2(b)(4).

      Although the commentary to this section defines “aggravated assault” to

include assaults that involve serious bodily injury and strangling, suffocating, or

attempting to strangle or suffocate, it also expressly contemplates increasing a

defendant’s offense level based on the listed special offense characteristics,

including bodily injury and strangling or suffocating a spouse. The guidelines do

not direct courts to forego applying the base offense and the special offense

characteristics together. Indeed, § 2A2.2 explicitly allows for the special offense

characteristics to be applied cumulatively, subject only to a cumulative maximum

of 12 levels for §§ 2A2.2(b)(2), (3), and (4). We therefore presume that the

Sentencing Commission intended these provisions to apply cumulatively. See

Webb, 665 F.3d at 1382. Moreover, the special offense characteristics applied here

each address conceptually separate notions—namely, the degree of injury a victim

suffered and the harm specific to strangling or suffocating a spouse or partner.

Accordingly, Mr. Brigman has not met his “tough task” of demonstrating that the

district court impermissibly committed double counting by applying increases

under §§ 2A2.2(b)(3)(A) and (b)(4).


                                        5
              Case: 16-12777    Date Filed: 10/17/2017   Page: 6 of 8




                                        III

      To the extent that Mr. Brigman argues that his sentence was procedurally

unreasonable, we review such a claim for an abuse of discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). “[We] must . . . ensure that the district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the [g]uidelines range, . . . failing to consider the [18

U.S.C.] § 3553(a) factors, . . . or failing to adequately explain the chosen

sentence[.]” Id. “The party challenging the sentence has the burden of showing the

sentence to be procedurally unreasonable.” United States v. Hill, 783 F.3d 842, 844

(11th Cir. 2015).

      Mr. Brigman has not shown that the district court committed significant

procedural error. As discussed, the district court properly calculated Mr. Brigman’s

guideline range and correctly applied the increases under §§ 2A2.2(b)(3) and

(b)(4). Moreover, as explained below, the record indicates that the district court

adequately explained the chosen sentence and considered a number of § 3553(a)

factors.

      As for Mr. Brigman’s argument that his sentence was substantively

unreasonable, we also review that claim for abuse of discretion. See Gall, 552 U.S.


                                         6
              Case: 16-12777     Date Filed: 10/17/2017   Page: 7 of 8


at 51. Mr. Brigman, as the party challenging the sentence, has the burden of

demonstrating that it is unreasonable in light of the record and the factors

enumerated in 18 U.S.C. § 3553(a). See United States v. Tome, 611 F.3d 1371,

1378 (11th Cir. 2010). “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.” United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc). Under our deferential standard of review,

“we are to vacate the sentence if, but only if, we are left with the definite and firm

conviction that the district court committed a clear error of judgment in 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 and citation omitted).

      The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in § 3553(a)(2), including the need

to reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. The court must also consider the need to

avoid unwarranted sentencing disparities. See § 3553(a)(6).




                                          7
              Case: 16-12777     Date Filed: 10/17/2017    Page: 8 of 8


      The record shows that the district court weighed the § 3553(a) factors before

imposing Mr. Brigman’s sentence. The district court discussed the nature of the

offense and the need for the sentence to reflect the seriousness of the offense and

provide just punishment. Specifically, it stated that Mr. Brigman had committed a

substantial assault and that this was “precisely the kind of case” contemplated by

the specific offense characteristics in the guidelines. See D.E. 44 at 26. The district

court also considered Mr. Brigman’s history and characteristics, recognizing that

he had complied with probation’s directives, accepted responsibility, and received

treatment. Moreover, Mr. Brigman’s sentence falls within the advisory guideline

range and below the statutory maximum, which are both indications of

reasonableness. See United States v. Cubero, 754 F.3d 888, 898 (11th Cir. 2014).

Accordingly, Mr. Brigman has not demonstrated that his 24-month sentence was

unreasonable in light of the record and the § 3553(a) factors.

                                          IV

      For the reasons stated above, we affirm Mr. Brigman’s 24-month sentence.

      AFFIRMED.




                                          8
