Case: 13-11762    Date Filed: 11/12/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11762
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:01-cr-00764-DLG-7


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


DEMETRIUS PORTER,
a.k.a. Devon Moss,
a.k.a. Big Shorty,

                                                          Defendant-Appellant.

                       ________________________

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

                            (November 12, 2013)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
              Case: 13-11762     Date Filed: 11/12/2013    Page: 2 of 5


      Demetrius Porter appeals his sentence imposed by the district court,

following the revocation of his supervised release based on two Florida state

offenses. At sentencing, the parties discussed Porter’s acceptance of responsibility,

his criminal history, and the time he spent incarcerated for his underlying offenses.

The district court revoked his supervised release and sentenced him to eight

months’ imprisonment and two years’ supervised release.

      On appeal, Porter argues that his sentence is unreasonable because the

district court failed to discuss the 18 U.S.C. § 3553(a) factors. Specifically, Porter

contends that the court failed to provide an explanation for choosing a sentence

that included an additional term of supervised release instead of a longer prison

sentence with no term of supervised release. He additionally claims that the two-

year term of supervised release is a far more stringent punishment than is necessary

to comply with the statutory sentencing goals set forth in § 3553(a).

      We review a sentence imposed upon revocation of supervised release for

reasonableness. United States v. Velasquez Velasquez, 

, 1252 (11th

Cir. 2008) (per curiam). Where a defendant seeks to raise a sentencing argument

for the first time on appeal, we review that claim for plain error only. United

States v. Aguillard, 

, 1320 (11th Cir. 2000) (per curiam). Under

plain error review, the defendant must show: “(1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Rodriguez, 

,


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1298 (11th Cir. 2005) (internal quotation marks omitted). We may then exercise

our discretion to notice a forfeited error, if “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” 

marks omitted). Under the plain error standard, error affects a defendant’s

substantial rights where that error affected the outcome of the case. United States

v. Olano, 

, 734, 

, 1778 (1993).

      Under 18 U.S.C. § 3583(e)(3), a district court may revoke a term of

supervised release based upon a preponderance of the evidence showing that a

defendant has violated a condition of supervised release and impose a term of

imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).

United States v. Sweeting, 

, 1107 (11th Cir. 2006) (per curiam). The

18 U.S.C. § 3553(a) factors that a court must consider in revoking supervised

release include: (1) the nature and circumstances of the offense and the history and

characteristic of the defendant; (2) the need for the sentence imposed to afford

adequate deterrence to criminal conduct, protect the public from further crimes of

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

training, medical care, or other correctional treatment; (3) the sentencing range

established by the Guidelines; (4) the pertinent policy statements of the Sentencing

Commission; (5) the need to avoid unwarranted disparities; and (6) the need to

provide restitution to any victims of the offense.


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      The district court is not required to discuss each § 3553(a) factor. United

States v. Talley, 

, 786 (11th Cir. 2005) (per curiam). “The weight to

be accorded any given § 3553(a) factor is a matter committed to the sound

discretion of the district court.” United States v. Clay, 

, 743 (11th Cir.

2007) (internal quotation marks omitted). Further, “because the Guidelines have

always been advisory for sentences imposed upon revocation of supervised release,

it is sufficient that there be some indication that the district court was aware of and

considered the Guidelines, which requires the court to consider the sentencing

range established under the Guidelines.” United States v. Campbell, 

, 1349 (11th Cir. 2007) (per curiam) (internal citations and quotation marks

omitted). Although we do not apply a presumption of reasonableness for sentences

falling within the guidelines range, “ordinarily we would expect a sentence within

the Guidelines range to be reasonable.” 

–88.

      Here, Porter faced eight to fourteen months’ imprisonment, with a

supervised release range of two to five years. The district court imposed a

guideline-range sentence of eight months’ imprisonment and two years’ supervised

release. In making its decision, the district court considered the statements of the

parties, the probation violation report, and the Sentencing Reform Act of 1984. On

the record, the parties discussed Porter’s acceptance of responsibility, his criminal

history, and the time he spent incarcerated for the underlying criminal offenses.


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See 18 U.S.C. § 3583(e). While the district court did not explicitly discuss the

§ 3553(a) factors, it is clear that there was “some indication that the district court

was aware of and considered the Guidelines” when it addressed the parties’

arguments. See 

(internal quotation marks omitted);

see also 

(district court is not required to “state on the

record that it has explicitly considered each of the section 3553(a) factors or to

discuss each of the section 3553(a) factors” (internal quotation marks omitted)).

      Even if the district court failed to adequately discuss the § 3553(a) factors,

Porter has not shown that such error affected his substantial rights by affecting his

sentence. See 

, 113 S. Ct. at 1778 (to affect substantial

rights, error “must have affected the outcome of the district court proceedings”).

Similarly, Porter has offered no explanation as to how his guideline-range term of

imprisonment and supervised release is greater than necessary to comply with the

statutory sentencing goals. See 

–88. Accordingly, Porter’s

sentence is reasonable, and we affirm the district court.

      AFFIRMED.




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