           Case: 17-15086   Date Filed: 06/01/2018   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15086
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:04-cr-00086-JES-CM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                 versus

GARY MARK HARDING,

                                                       Defendant - Appellant.

                      ________________________

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

                              (June 1, 2018)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Defendant-Appellant Gary Mark Harding, Jr., challenges the substantive

reasonableness of his sentence of a life term of supervised release following

Harding’s second violation of supervised release after serving prison time for

possessing child pornography. After careful consideration, we affirm.

      We begin with the conviction that landed Harding in prison in the first

instance.   Harding pled guilty to one count of possessing visual depictions

involving the use of minors engaged in sexually explicit conduct, in violation of 18

U.S.C. §§ 2252(a)(4)(b) and (b)(2).       The district court sentenced him to 120

months’ imprisonment, followed by a life term of supervised release. The terms of

his supervised release included, in relevant part, provisions (1) requiring written

approval from the probation officer before possessing or using a computer with

internet access, (2) requiring written approval from the probation officer before

having direct contact with a minor, and (3) prohibiting possession of any media

depicting children in the nude.

      After his release from prison, in December 2014, Harding was arrested for

violating the conditions of his supervised release—namely, possessing or using a

computer with internet access without the probation officer’s written consent, and

having unauthorized direct contact with a minor. The district court sentenced

Harding to a term of eight days for time served, followed by a life term of

supervised release with the same relevant provisions as his initial term.


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      In May 2017, Harding was again arrested for violating the conditions of his

supervised release. This time, during a home visit, Harding’s probation officer

observed a thumb drive plugged into a DVD player in Harding’s bedroom. A

subsequent forensic examination of the thumb drive revealed numerous images of

nude children.   At the initial revocation hearing, the district court found that

Harding had viewed at least one photo of a nude child, so he had violated the terms

of his supervision. The court concluded that the violation was a grade C violation

and that, based on Harding’s criminal history category of IV, the guideline range

was 6 to 12 months’ imprisonment. In addition, the court determined that the

maximum sentence was two years’ imprisonment and the maximum term of

supervised release was life. But the district judge at the initial revocation hearing

did not impose a sentence; rather, the matter was set for a final hearing with the

district judge who had handled Harding’s previous violation of supervised release

and his underlying conviction. At a final revocation hearing, that judge sentenced

Harding to 12 months’ imprisonment and a life term of supervised release.

      This appeal followed. Harding raises only one issue on appeal: he argues

that his sentence of a life term of supervised release was substantively

unreasonable because the court failed to consider mitigating circumstances.

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

discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). In so doing, we


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“take[] into account the totality of the circumstances.” Id. at 51. We will vacate a

sentence 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.

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

not reverse merely because we might have reasonably concluded a different

sentence was appropriate. Gall, 552 U.S. at 51.

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

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment, deter criminal conduct, and protect the public from the

defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). The court must also

consider the nature and circumstances of the offense, the history and characteristics

of the defendant, the kinds of sentences available, the applicable guideline range,

and the pertinent policy statements of the Sentencing Commission.                 Id.

§ 3553(a)(1), (3)-(7). Generally, the court is required neither to state that it has

explicitly considered each factor nor to discuss each factor. United States v.

Sanchez, 586 F.3d 918, 935 (11th Cir. 2009). It is enough that the court considers

the defendant’s arguments and states that it has taken the § 3553(a) factors into

account. Id. As part of the sentence imposed, the court may include or may be

required to include a term of supervised release. 18 U.S.C. § 3583(a). But for


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certain offenses, including under 18 U.S.C. § 2252, the term must be not less than

a designated period. Id. § 3583(k). If the underlying offense is a sex offense, the

sentencing guidelines recommend a life term of supervised release. U.S.S.G. §

5D1.2.

      A district court abuses its discretion in sentencing when it (1) fails to

consider relevant factors that were due significant weight, (2) gives an improper or

irrelevant factor significant weight, or (3) commits a clear error of judgment by

balancing the proper factors unreasonably. Irey, 612 F.3d at 1189-190. The

weight given to any specific § 3553(a) factor is committed to the sound discretion

of the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

And the court may give greater weight to one factor over others. United States v.

Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014). A sentence within the guideline

range is ordinarily expected to be reasonable. United States v. Hunt, 526 F.3d 739,

746 (11th Cir. 2008). The party challenging the sentence bears the burden of

proving the sentence is unreasonable in light of the totality of the circumstances

and the § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010).

      Here, Harding put on mitigating evidence and requested a sentence of time

served of six months, followed by 15 years’ supervised release. In addition to

presenting evidence of his difficult childhood and early adulthood, Harding argued


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that he had already been punished enough as a result of his conviction, since he

lost his home, possessions, car, job, and money, and that, with respect to

supervised release, he needed something “to look forward to.” Harding asserted

that a lifetime term of supervised release would be repressive and created a sense

of hopelessness. Additionally, Harding contended that the terms of his supervised

release, including a lifetime prohibition on computer access, were unwarranted in

this day and age.

      In opposition, the government requested a sentence at the high end of the

guideline range: 12 months’ imprisonment and a life term of supervised release.

The government emphasized that the thumb drive contained 200 images of

children and that the possession of images of nude children was similar to the

conduct underlying Harding’s initial conviction. Additionally, the government

noted that this was the second time Harding had violated the conditions of his

supervised release. With respect to computer access, the government contended

that Harding had not shown he could “resist the temptation” to view nude images,

especially given that “there is no bigger singular tool” for accessing child

pornography than the Internet.

      After hearing arguments, the district court noted that it had considered all of

the factors listed in 18 U.S.C. § 3553. The court found that the violation of

possessing a thumb drive with images of nude children was more severe than


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Harding’s previous violation, given his history and the underlying charges. And

after acknowledging Harding’s arguments and agreeing that a lifetime of

supervision “is a long time,” the district court explained that Harding had not made

a showing that he was on a path to recovery.           Therefore, the court revoked

Harding’s supervision and sentenced him to 12 months’ imprisonment, followed

by a life term of supervised release.

      We find no abuse of discretion.         Harding’s sentence was substantively

reasonable. The district court properly considered all the factors listed in 18

U.S.C. ' 3553(a), including Harding’s mitigating circumstances, and it did not

abuse its discretion in giving more weight to the seriousness of Harding’s violation

of the conditions of his supervised release. On this record, a sentence of a lifetime

of supervised release was within the district court’s discretion.

      AFFIRMED.




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