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[DO NOT PUBLISH]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: Case: 17-15086 Date Filed: 06/01/2018 Page: 2 of 7
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.
2 Case: 17-15086 Date Filed: 06/01/2018 Page: 3 of 7
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
3 Case: 17-15086 Date Filed: 06/01/2018 Page: 4 of 7
“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
4 Case: 17-15086 Date Filed: 06/01/2018 Page: 5 of 7
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
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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: Case: 17-15086 Date Filed: 06/01/2018 Page: 2 of 7
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.
2 Case: 17-15086 Date Filed: 06/01/2018 Page: 3 of 7
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
3 Case: 17-15086 Date Filed: 06/01/2018 Page: 4 of 7
“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
4 Case: 17-15086 Date Filed: 06/01/2018 Page: 5 of 7
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
5 Case: 17-15086 Date Filed: 06/01/2018 Page: 6 of 7
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.