Filed: Dec. 23, 2011
Latest Update: Feb. 22, 2020
Summary: 10-4255-cr United States v. Shane UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORD
Summary: 10-4255-cr United States v. Shane UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDE..
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10-4255-cr
United States v. Shane
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of December, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 United States of America,
14 Appellee,
15
16 -v.- 10-4255-cr
17
18 David A. Shane,
19 Defendant-Appellant.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Lisa Peebles, Federal Public
23 Defender, Syracuse, New York
24 (James P. Egan and James F.
25 Greenwald, Federal Public
26 Defender, Syracuse, NY, on the
27 brief)
28
29 FOR APPELLEE: Julie S. Pfluger and Lisa M.
30 Fletcher, Assistant United
1
1 States Attorneys, Of Counsel,
2 Syracuse, NY; for Richard S.
3 Hartunian, United States
4 Attorney, Northern District of
5 New York, Syracuse, NY)
6
7
8 Appeal from a judgment of the United States District
9 Court for the Northern District of New York (Mordue, C.J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the District Court’s judgment is AFFIRMED.
13
14 Defendant-Appellant, David A. Shane, pleaded guilty to
15 production and possession of child pornography. On the
16 production count, he was sentenced to 188 months in prison
17 and three years of supervised release. On the possession
18 count, he was sentenced to 120 months in prison and a
19 lifetime term of supervision. The sentences will run
20 concurrently. He was also assessed a special assessment of
21 $200. Shane challenges these sentences as substantively
22 unreasonable. We assume the parties’ familiarity with the
23 underlying facts, the procedural history of the case, and
24 the issues on appeal.
25 Shane cannot demonstrate that the District Court abused
26 its discretion in imposing a sentence of 188 months in
27 prison and a life term of supervision. See Gall v. United
2
1 States, 552 U.S. 38, 41 (2007) (holding that appellate
2 courts must review sentences for reasonableness under the
3 “deferential abuse-of-discretion standard”); accord United
4 States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) (en
5 banc). A substantive challenge requires the defendant to
6 show that the sentence falls outside the “broad range” of
7 sentences “that can be considered reasonable under the
8 totality of the circumstances” and in light of “due
9 deference [afforded] to the district court’s exercise of
10 judgment.” United States v. Jones,
531 F.3d 163, 174 (2d
11 Cir. 2008); accord
id. (“In short, in determining
12 substantive reasonableness, a reviewing court will set aside
13 only those outlier sentences that reflect actual abuse of a
14 district court’s considerable sentencing discretion.”).
15 Shane cannot sustain this burden, given (1) the
16 particulars of his offenses; (2) the District Court’s due
17 consideration of Shane’s personal circumstances in
18 concluding that the sentence imposed was nevertheless
19 warranted; (3) the sentence was within the applicable
20 Sentencing Guidelines range, United States v. Fernandez, 443
21 F.3d 19, 27 (2d Cir. 2006) (recognizing that sentences
22 within the guidelines range are substantively reasonable the
23 “overwhelming majority of” the time); (4) the Sentencing
24 Commission’s recommendation of a maximum term of supervision
3
1 for sex offenders, U.S. SENTENCING GUIDELINES MANUAL §
2 5D1.2(b)(2) (Policy Statement); (5) the statutory authority
3 to impose lifetime terms of supervision for child sex
4 offenders in light of congressional findings that such
5 supervision is sometimes necessary, 18 U.S.C. § 3583(k);
6 H.R. REP. NO. 108-66, at 42 (2003) (Conf. Rep.), reprinted in
7 2003 U.S.C.C.A.N. 683, 684; and (6) this Court’s authority
8 upholding such a term of supervision, see United States v.
9 Hayes, 445 F.3d 536, 537 (2d Cir. 2006).
10
11 We have considered all of Shane’s additional arguments
12 and find them to be without merit. Accordingly, the
13 judgment of the District Court is AFFIRMED.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19
4
