[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14358 APR 20, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:03-cr-00362-TWT-GGB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDON BIDDY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 20, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Brandon Biddy appeals his 12-month above-Guidelines range sentence
imposed for violating the conditions of his supervised release.1 On appeal, Biddy
contends the district court relied upon a clearly erroneous factual finding in
determining his sentence, and the sentence was greater than necessary to obtain
the objectives of 18 U.S.C. § 3553(a). After careful review, we affirm Biddy’s
sentence.2
A sentence is procedurally unreasonable if the district court selected a
sentence based upon clearly erroneous facts. United States v. Shaw, 560 F.3d
1230, 1237 (11th Cir. 2009). When sentencing a defendant, a district court may
not rely solely upon the government’s assertions that evidence exists, or
summaries of evidence the government is able to present. See United States v.
Lawrence, 47 F.3d 1559, 1567-69 (factual findings made at initial sentencing
hearing were clearly erroneous because no record evidence existed despite
government’s summary of evidence that it could present). Nonetheless, we will
1
The terms of Biddy’s supervised release prohibited him from owning, possessing, or
otherwise accessing a computer. At his revocation hearing, Biddy admitted to accessing a
computer and the internet to seek out adult pornography. The Government alleged Biddy
encountered child pornography as well but did not offer evidence at the revocation hearing to
prove this assertion.
2
We review a sentence imposed upon revocation of supervised release for procedural and
substantive reasonableness under an abuse of discretion standard. United States v. Tome, 611
F.3d 1371, 1378 (11th Cir. 2010).
2
affirm a sentence where an error is harmless and non-constitutional. See United
States v. Mathenia, 409 F.3d 1289, 1292-93 (11th Cir. 2005) (affirming sentence
despite non-constitutional Booker error). A non-constitutional error is harmless if,
considering the proceedings in their entirety, the error did not affect the sentence,
or only had a slight effect. Id.
The district court clearly erred in finding that Biddy accessed child
pornography while on supervised release because there was no evidence presented
at the revocation hearing to support that finding. See Lawrence, 47 F.3d at 1567-
69. The error was harmless, however, because the district court did not rely on the
incorrect finding in fashioning Biddy’s sentence. See Mathenia, 409 F.3d at 1292-
93. Upon Biddy’s objection to the sentence, the court specifically stated it was
imposing a term of imprisonment because Biddy violated the prohibition against
accessing a computer and viewing “any pornographic materials whatsoever.” This
limited the court’s previous statement that Biddy had “accessed pornographic
materials involving both adults and minors.” Thus, the court did not base Biddy’s
sentence on the Government’s unproven assertion, but rather on the fact that
Biddy accessed a computer and actively sought out pornographic material in
violation of his supervised release.
3
Further, Biddy’s sentence was substantively reasonable in light of the
§ 3553(a) factors and the totality of the circumstances. See Gall v. United States,
552 U.S. 38, 51 (2007). The court specifically considered deterrence, the nature
and circumstances of the offense and the need for correctional and/or medical
treatment for Biddy’s recidivist behavior. Although the district court sentenced
Biddy above the Guidelines, it based Biddy’s sentence on the fact that he engaged
in conduct related to his underlying convictions for receiving child pornography.
We have upheld sentences above the applicable Guidelines range where the
supervised release violation paralleled the conduct for which the defendant was
originally convicted. See United States v. Tome, 611 F.3d 1371, 1378-79 (11th
Cir.), cert. denied, 131 S. Ct. 674 (2010). Accordingly, we affirm Biddy’s
sentence.
AFFIRMED.
4