Case: 12-11655 Date Filed: 11/13/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11655
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-00554-RWS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllll llPlaintiff-Appellee,
versus
ANDREW SUTTON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 13, 2012)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
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In appealing his prison sentence of 96 months for distribution of child
pornography, in violation of 18 U.S.C. § 2252(a)(2), (b), Andrew Sutton presents
one issue: whether the sentence is substantively unreasonable. The term of
Sutton’s sentence is 12 months below the applicable guideline sentence range of
108 to 135 months’ confinement. Sutton contends that it is unreasonable because,
among other things, the District Court gave too much weight to the content of his
online chats, and failed to give enough weight to his diminished capacity. Relying
on United States v. Portman, 599 F.3d 633 (7th Cir. 2010), he argues that, because
his diminished capacity directly led to his offense, he was entitled to a 36- to
48-month downward variance from the guideline sentence range. We are not
persuaded and accordingly affirm.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). We reverse only if “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the [18 U.S.C.] § 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.
Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813
(2011) (quotation omitted).
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The District Court did not abuse its discretion by imposing a sentence 12
months below the guideline range. The court properly considered the nature and
circumstances of Sutton’s offense, his personal characteristics, the available
sentencing alternatives, and the sentencing goals of § 3553(a)(2). Sutton’s offense
was particularly serious because his actions bordered on production of child
pornography. He engaged in numerous online conversations with children and
parents of minor children, encouraging them to engage in bizarre sexual acts and
send him nude photographs.
The record reflects that the court sufficiently considered evidence regarding
Sutton’s mental capacity. When exercising its discretion in weighing this
evidence, the court found that Sutton had “issues” and was not “operating at full
speed.”
Sutton cites Portman for the proposition that a court must address
uncontested evidence of a defendant’s diminished capacity and must make a
finding of whether the defendant’s diminished capacity contributed substantially
to the offense. Portman, 599 F.3d at 637-38 (holding that the district court’s
alleged failure to make findings on the defendant’s capacity was harmless because
the defendant’s capacity did not substantially contribute to the commission of his
crime). But Portman does not require the court, as Sutton seems to argue, to
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impose a downward variance greater than 10% of the low end of the guideline
range where the defendant’s diminished capacity contributed to his offense. What
the record shows here is that the District Court sufficiently considered evidence of
Sutton’s diminished capacity, as contemplated by Portman and § 3553(a)(1), in
fashioning his sentence.
AFFIRMED.
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