12-471-cr
     United States v. Culver

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 19th day of March, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Plaintiff-Appellee,
15
16                    -v.-                                               12-471-cr
17
18       LAURA CULVER,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -
21
22       FOR APPELLANT:                        RONALD B. RESETARITS for Terence
23                                             S. Ward, Federal Defender, New
24                                             Haven, CT.
25
26       FOR APPELLEE:                         KRISHNA R. PATEL for David B.
27                                             Fein, United States Attorney,
28                                             District of Connecticut (Sandra
29                                             S. Glover on the brief),
30                                             Bridgeport, CT.

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1         Appeal from a judgment of the United States District
2    Court for the District of Connecticut (Eginton, J.).
3
4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5    AND DECREED that the judgment of the district court be
6    VACATED and REMANDED.
7
8        Laura Culver appeals from the order of the United

9    States District Court for the District of Connecticut

10   (Eginton, J.), sentencing her to serve 96 months in prison

11   for producing child pornography of a minor child under her

12   custody and control, in violation of 18 U.S.C. § 2251(a).

13   We assume the parties’ familiarity with the underlying

14   facts, the procedural history, and the issues presented for

15   review.

16       We review a district court’s sentencing decision for

17   procedural and substantive reasonableness.   Gall v. United

18   States, 

, 51 (2007); United States v. Booker, 543

, 260-62 (2005).   Culver argues that her sentence is

20   procedurally unreasonable because the district court made

21   multiple references to Facebook, which had little to no

22   application to the facts of her case; and that the sentence

23   is substantively unreasonable because the judge gave

24   outsized influence to Facebook, instead of other relevant

25   factors.



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1        Culver did not object to the district court’s

2    discussion of Facebook at the sentencing.   Her “allegations

3    concerning the court’s improper consideration” of an

4    extraneous factor “should be reviewed for plain error.”

. Cossey, 

, 86 (2d Cir. 2011).     “To

6    establish plain error, [an] appellant must show there was

7    (1) error (2) that is plain and (3) that affects substantial

8    rights.”   Id. at 86-87.

9        In justifying its decision to impose a sentence of

10   eight years instead of six, the district court referenced

11   “Facebook, and things like it, and society has changed.”

12   Sentencing Hr’g Tr. 47-48, Jan. 30, 2012.   The court

13   speculated that the proliferation of Facebook would

14   facilitate an increase in child pornography cases.    The

15   court said it hoped Mark Zuckerberg (who founded Facebook)

16   was “enjoying all his money because . . . he’s going to hurt

17   a lot of people . . . .”   Id. at 16-17.

18       Culver is correct that the court’s lengthy discussion

19   of Facebook had no clear connection to the facts of her

20   case.   It is plain error for a district court to rely upon

21   its own unsupported theory of deterrence at sentencing,

22   especially where, as here, that theory has little


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1    application to the actual facts of the case itself.      See,

2    e.g., Cossey, 632 F.3d at 88 (“It is uncontroversial to

3    conclude that a sentencing decision that relies on factual

4    findings that were unsupported in the record, and thus could

5    not possibly have been established by a preponderance of the

6    evidence, seriously affects the fairness, integrity, and

7    public reputation of judicial proceedings.”); United States

8    v. Juwa, 

, 701 (2d Cir. 2007) (“[F]actual

9    matters considered as a basis for sentenc[ing] must have

10   some minimal indicium of reliability beyond mere

11   allegation.”) (quotation omitted).   This error undoubtedly

12   affected Culver’s substantial rights; the court stated that

13   it would have granted a sentence of six years if not for its

14   concerns about Facebook and general deterrence.    See

15   Sentencing Hr’g Tr. at 42 (“[W]hat we’re looking at is

16   general deterrence, and the general deterrence is very

17   important, and frankly, that’s why I went to eight [years]

18   instead of six.”).

19       The government argues that the district court was

20   merely concerned about the extent to which various new

21   technologies may facilitate child pornography, rather than

22   Facebook specifically.   In that sense, Facebook was a



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1    reference to the internet, using synecdoche.   But the

2    government does not explain (because it cannot) the role of

3    new technology in this case.   Culver did not use the

4    internet to commit her crime, and it should not have played

5    a predominant role in her sentencing.   The case is therefore

6    remanded to the district court for resentencing consistent

7    with this opinion.

8        This remand should not be construed to suggest that the

9    sentence was substantively unreasonable.   An eight-year

10   sentence was still a twenty percent reduction below the

11   bottom of the recommended Guidelines range.    Though Culver

12   assisted in the prosecution of her accomplice and boyfriend,

13   Edgardo Sensi, her crime was particularly abhorrent.     Thus,

14   a sentence of eight years was within the court’s substantive

15   discretion.   See, e.g., United States v. Rigas, 

   108, 123 (2d Cir. 2009) (explaining that a sentence must be

17   “shockingly high, shockingly low, or otherwise unsupportable

18   as a matter of law” in order to be substantively

19   unreasonable).   Still, that discretion should be exercised

20   without the influence of procedural error.

21

22


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1       Finding no merit in the remaining arguments, the

2   judgment is VACATED AND REMANDED for resentencing.

3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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