              Case: 15-15190    Date Filed: 08/08/2016   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-15190
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:15-cr-00086-CEM-KRS-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JAY PAUL PORTON,

                                                             Defendant-Appellant.

                          ________________________

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

                                 (August 8, 2016)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:

      Jay Porton was convicted of simple assault against a federal law

enforcement officer and sentenced to a year in prison plus a year of supervised

release. The district court added two special conditions to Porton’s supervised
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release: abstinence from alcohol and participation in a substance abuse program.

Porton argues that his prison sentence was substantively unreasonable and that the

sentencing judge abused his discretion in setting those special conditions. We

affirm the district court.

                                           I.

      Porton first argues that his sentence was substantively unreasonable. We

review criminal sentences for abuse of discretion. United States v. Irey, 612 F.3d

1160, 1188 (11th Cir. 2010) (en banc). “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.” Id. at 1189

(quotation omitted). “The party who challenges the 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. Thomas, 446 F.3d 1348, 1351 (11th

Cir. 2006) (quotation omitted and alterations adopted). Also, the district court

doesn’t need to discuss each § 3553(a) factor explicitly; an acknowledgment that

the court considered the defendant’s arguments and the § 3553(a) factors can

suffice. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per

curiam). The weight to be accorded any one § 3553(a) factor is a matter




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committed to the sound discretion of the district court. United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007).

      Porton’s one-year sentence was the maximum sentence for his crime, which

also would have allowed a sentence of no prison time. See 18 U.S.C. § 111(a). He

claims the judge gave him that sentence based on two improper factors: (1)

Porton’s conduct related to an unrelated civil lawsuit, and (2) the fact that Porton

was acquitted of a more serious charge. For that first claim, the record does not

show that the conduct surrounding Porton’s civil lawsuit was irrelevant to this

case. Porton was convicted of assault for threatening a court security officer with

a baseball bat. The evidence at trial showed that this assault was related to a civil

lawsuit Porton had filed in the court where the security officer worked. Porton

had also made harassing phone calls to a magistrate judge’s deputy clerk in the

same court. Because Porton’s civil lawsuit was connected to his crime, the district

court acted within its discretion in concluding that the facts surrounding that

lawsuit were related to “the nature and circumstances of the offense.” Id.

§ 3553(a)(1).

      As for Porton’s claim about acquitted conduct, Porton was acquitted of

forcible assault with a deadly weapon. He argues that the judge increased his

sentence based on that acquitted conduct. Porton’s argument here is based on this

statement that the judge made:


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             I think when you’re serving the time that you’re going to
             be serving, you should be very grateful to your attorney,
             who did an excellent job defending you, because the jury,
             whose decision I stand entirely behind and would under
             no circumstances criticize[] could have reasonably come
             to a different conclusion that would have resulted in your
             spending a lot more time behind bars, and they certainly
             would have been justified in doing so.

As an initial matter, this statement shows that the judge believed the jury spared

Porton from a more serious conviction. The statement does not establish that the

judge chose a higher sentence on the basis of his view that Porton committed a

more serious crime. But even if the judge did sentence Porton based on his view

that Porton committed a more serious crime, federal judges may set sentences

based on any fact that the government proved by a preponderance of evidence,

even if a jury did not find the same facts. See United States v. Faust, 456 F.3d

1342, 1348 (11th Cir. 2006). The judge’s comment that a jury “reasonably” could

have convicted Porton of forcible assault with a deadly weapon and “certainly

would have been justified in doing so” indicates that the judge believed that the

government proved that conduct by a preponderance of the evidence. That being

the case, the judge was allowed to consider the conduct in setting Porton’s

sentence. Porton has not shown that his sentence is substantively unreasonable.

                                         II.

      Porton also argues that the sentencing judge abused his discretion when he

ordered Porton to participate in a substance abuse program and stop drinking
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alcohol during his year of supervised release. We review terms of supervised

release for abuse of discretion. United States v. Zinn, 321 F.3d 1084, 1087 (11th

Cir. 2003). Special conditions must be: (1) reasonably related to one of the factors

set forth in § 3553(a)(1), (a)(2)(B)–(D); (2) no greater a deprivation of liberty than

is reasonably necessary for the purposes set forth in § 3553(a)(2)(B)–(D); and (3)

consistent with policy statements issued by the Sentencing Commission pursuant

to 28 U.S.C. § 994(a). 18 U.S.C. § 3583(d).

      The district court did not abuse its discretion in imposing the special

conditions. Under §§ 3553(a)(1) and 3583(d), the district court was required to

consider Porton’s criminal history, which included several alcohol and drug-related

crimes. The Sentencing Guidelines recommend that a condition requiring the

defendant to participate in a substance abuse program if a judge has reason to

believe that the defendant abuses alcohol. USSG § 5D1.3(d)(4). Porton’s criminal

history gave the district court reason to believe that Porton abused alcohol and that

participation in a substance abuse program could help “provide the defendant with

needed . . . medical care[] or other correctional treatment” and also help “protect

the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C)–(D).

      AFFIRMED.




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