Case: 14-12267   Date Filed: 01/07/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12267
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:10-cr-00154-CAP-RGV-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ANTHONY LEE CLYBURN,

                                                         Defendant-Appellant.

                      ________________________

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

                            (January 7, 2015)

Before HULL, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Anthony Clyburn appeals his 60-month sentence, imposed for violating

conditions of his probation resulting from an earlier conviction for failure to

register as a sex offender under 18 U.S.C. § 2250(a). The district court varied his

sentence upward from the advisory guideline range of 8 to 14 months.

      On appeal, Clyburn argues that the district court abused its discretion by

imposing a substantively unreasonable sentence. He argues that the district court

improperly focused on only two factors in imposing the sentence: (1) that Clyburn

had weapons near doors, and (2) that he knowingly went around children. He

asserts that these factors are not sufficient for varying the sentence substantially

above the guideline range. He argues the sentence fails to promote respect for the

law or provide personal or societal deterrence. Finally, he argues for the first time

in his reply brief that the district court imposed a five-year term of supervised

release that exceeded the maximum term available under 18 U.S.C. § 3583.

                                           I

      We review the sentence imposed upon the revocation of probation for

reasonableness. See United States v. Velasquez, 

, 1252 (11th Cir.

2008) (per curiam) (discussing revocation of supervised release); United States v.

Campbell, 

, 1348 (11th Cir. 2007) (per curiam) (noting that

“probation revocation proceedings are conceptually the same as supervised release

revocation proceedings”) (internal quotation marks omitted). When reviewing for


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reasonableness, we apply the abuse of discretion standard. See Gall v. United

States, 

, 46, 

, 594 (2007). We examine the sentence’s

substantive reasonableness under the totality of the circumstances. United States v.

Shaw, 

, 1237 (11th Cir. 2009). The burden of establishing

reasonableness lies with the party challenging the sentence. See United States v.

Tome, 

, 1378 (11th Cir. 2010).

      Pursuant to 18 U.S.C. § 3565(a), upon finding that the defendant violated a

condition of probation, a district court may revoke the term of probation and

impose a term of imprisonment after holding a hearing and considering the specific

factors set forth in 18 U.S.C. § 3553(a) to the extent that they are applicable. The

factors listed in 18 U.S.C. § 3553(a)(2) include 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. Other factors for consideration under § 3553(a) are the nature

and circumstances of the offense, the history and characteristics of the defendant,

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

policy statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to the victims.

      “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


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an improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 

, 1189 (11th

Cir. 2010) (en banc) (internal quotation marks omitted). We will remand only

when “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.”

United States v. Pugh, 

, 1191 (11th Cir. 2008) (internal quotation

marks omitted).

      Ordinarily, the authorized term of supervised release for a class C felony is

not more than three years. 18 U.S.C. § 3583(b). However, the authorized term of

supervised release for a violation of 18 U.S.C. § 2250 is five years to life. 18

U.S.C. § 3583(k).

                                               II

      Clyburn failed to properly raise his claim challenging his term of supervised

release because “arguments raised for the first time in a reply brief are not properly

before a reviewing court.” United States v. Evans, 

, 1120 (11th Cir.

2006). Nevertheless, this claim is meritless. The district court not only could

impose a five-year sentence of supervised release, but was required to impose at

least that much. See 18 U.S.C. § 3583(k).




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      Clyburn has not met his burden of establishing that his sentence is

substantively unreasonable in light of the totality of the circumstances and the

§ 3553(a) factors. Clyburn admitted four of the five charged probation violations,

including possession of several knives and nearly 700 rounds of ammunition, as

well as repeated unauthorized contact with children. The violations involving

children are particularly serious because of the nature of his underlying offense

that caused him to be required to register as a sex offender: possession of child

pornography. Further, there was substantial evidence that he was again possessing

child pornography, as even the incomplete forensic examination by the government

revealed two child pornography images and filenames suggesting further child

pornography file-sharing on a computer in Clyburn’s possession that was

registered using a shortened version of his first name. The sentence imposed by

the district court reflects the concern for public safety and serves as deterrence both

for Clyburn in his future conduct and for the public as a whole. As a result,

Clyburn’s sentence is not a clear error of judgment and not outside the range of

reasonable sentences in light of the totality of the circumstances and 3553(a)

factors. See 

; 

.

      AFFIRMED.




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