            Case: 13-11111   Date Filed: 10/30/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11111
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:12-cr-00012-BAE-GRS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARK DARNELL PORTER,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 30, 2013)

Before CARNES, Chief Judge, MARTIN and FAY Circuit Judges.

PER CURIAM:
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      Mark Porter appeals his 180-month sentence after pleading guilty to

possession with intent to distribute 280 grams or more of crack cocaine in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B). He claims that his sentence is substantively

unreasonable, and that the district court violated his plea agreement with the

government.

                                         I.

      In the spring of 2012 officers arrested Porter as he was selling crack cocaine

to a confidential informant. A federal grand jury issued an eight-count indictment

charging Porter and his codefendants with various drug trafficking and firearms

offenses. Porter entered into a written plea agreement in which he agreed to plead

guilty to one count of possession with intent to distribute 280 grams or more of

crack cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).         In return the

government agreed to: (1) dismiss the remaining charges against Porter; (2) not

object to the probation officer’s recommendation that Porter receive a three-level

guidelines reduction for acceptance of responsibility; (3) agree with Porter that

there were no aggravating circumstances that justified an enhancement under the

sentencing guidelines; and (4) advise the district court of the extent and value of

Porter’s assistance in the government’s investigation and prosecution of others.

The plea agreement warned Porter “that the Court is not a party to this agreement,

that the government can only make recommendations which are not binding on the



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Court, and that . . . the Court is free to impose any sentence authorized by law up

to the statutory maximum sentence.” The district court issued a similar warning at

Porter’s change-of-plea hearing, telling him that its sentence could be higher than

the applicable guideline range and more severe than what he might anticipate

based on his plea bargain. Porter confirmed that he understood and wanted to

plead guilty anyway.

      The presentence investigation report calculated a base level of 32 under

United States Sentencing Guidelines § 2D1.1(c)(4).         It added 2 levels under

§ 2D1.1(b)(1) for possession of a firearm during the commission of the offense,

and subtracted 3 levels under § 3E1.1 for acceptance of responsibility, resulting in

a total offense level of 31. That offense level combined with his criminal history

category of II to give Porter a guidelines range of 121 to 151 months

imprisonment. Porter did not object to the PSR.

      At sentencing the district court varied upward, imposing a sentence of 180

months imprisonment.       The court did so based on its determination that an

additional 29 months was appropriate under the 18 U.S.C. § 3553(a) sentencing

factors. The district court considered Porter’s history and characteristics, as well

as the circumstances of his offense. See 18 U.S.C. § 3553(a)(1). It also cited four

findings as especially important in its decision to impose an upward variance.

First, Porter’s criminal history “show[ed] almost an entire life of lack of respect for



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the laws.” Second, Porter had not been deterred from criminal activity even

though “he has had opportunities and the ability to earn a decent income.” Third,

Porter’s offense conduct created “a significant danger to the community” by

paying an individual to drive him to a high volume crack deal and having a firearm

present. Finally, Porter had a “history of trying to -- or attempting to avoid

responsibility for his conduct by minimizing his actions,” including three prior

convictions in which Porter pleaded to lesser offenses.

                                         II.

      Porter claims that the district court’s sentence was substantively

unreasonable because it misapplied the sentencing factors set out in 18 U.S.C.

§ 3553(a). Section §3553(a) requires district courts to impose sentences that are

“sufficient, but not greater than necessary, to comply with the purposes” listed in

that statutory provision. Id. Those purposes include the needs to: reflect the

seriousness of the offense, promote respect for the law, provide just punishment of

the offense, deter criminal conduct, protect the public from the defendant’s future

criminal conduct, and provide the defendant with needed educational or vocational

training or medical care. Id. § 3553(a)(2). Among other factors, the district court

must also consider the nature and circumstances of the offense, the history and

characteristics of the defendant, the applicable guidelines range, and the need to

avoid unwarranted sentencing disparities. See id. § 3553(a)(1), (4), (6).



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      We apply an abuse of discretion standard in reviewing the district court’s

application of those factors. See United States v. White, 663 F.3d 1207, 1215

(11th Cir. 2011).      Porter has the burden of proving that his sentence is

substantively unreasonable. Id. at 1217. He does not claim that the district court’s

sentence “is grounded solely on one factor, relies on improper factors, or ignores

relevant factors.” United States v. Pugh, 515 F.3d 1179, 1194 (11th Cir. 2008).

Instead he takes issue with the district court’s conclusion that the facts in his case

justify a variance under the § 3553(a) factors. To prevail on his argument, he must

leave us 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.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation

marks omitted).

      Porter’s argument does not inspire such conviction. His sentence is well

below the statutory maximum of life in prison. See United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008) (holding that a defendant’s sentence was

reasonable in part because it was well below the statutory maximum).

Furthermore, the district court considered the § 3553(a) factors and made specific

findings as to why the nature and circumstances of the offense, Porter’s history and

characteristics, deterrence of criminal conduct, and protecting the public from



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Porter’s future criminal conduct justified an upward variance from the guidelines

range. Porter offers reasons to disagree with the court’s conclusion, but the abuse-

of-discretion standard requires more. See Gall v. United States, 552 U.S. 38, 51,

128 S.Ct. 586, 597 (2007) (“The fact that the appellate court might reasonably

have concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.”). Thus Porter’s claim fails.

                                          III.

      Porter also claims that the district court’s 180-month sentence “breached”

his plea agreement with the government. Because Porter raises this argument for

the first time on appeal, we review only for plain error.            United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

      Porter argues that the district court “violated the plea agreement” because it

imposed a higher sentence than what he expected based on his plea negotiations

with the government. Not so. The plea agreement specifically acknowledged two

facts that made it legally impossible for the district court’s upward variance to

breach the plea agreement: (1) “the Court is not a party to this agreement,” and (2)

“the Court is free to impose any sentence authorized by law up to the statutory

maximum sentence.” It cannot be error — let alone plain error — for a district

court to exercise its sentencing discretion if the defendant’s plea agreement does




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not limit that discretion. See United States v. Eldick, 443 F.3d 783, 789 (11th Cir.

2006). Thus Porter’s claim fails.

      AFFIRMED.




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