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20-3212-cr

United States v. Fountain

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 24th day of September, two thousand twenty-one.

PRESENT: JON O. NEWMAN,

JOSÉ A. CABRANES,

RICHARD C. WESLEY,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee, 20-3212-cr

v.

DOUGLAS FOUNTAIN,

Defendant-Appellant.

FOR APPELLEE: Carina H. Schoenberger, Assistant United 

States Attorney, for Antoinette T. Bacon, 

Acting United States Attorney, Northern 

District of New York, Syracuse, NY

FOR DEFENDANTS-APPELLEES: Molly K. Corbett, Assistant Federal Public 

Defender, Albany, NY

Appeal from a judgment of the United States District Court for the Northern District of 

New York (Thomas J. McAvoy, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Douglas Fountain (“Fountain”) pled guilty to eight counts of sexual exploitation of a child, 

18 U.S.C. § 2251(a) and (e), one count of transportation of child pornography, id. § 2252A(a)(1) and 

(b)(1), and two counts of possession of child pornography depicting prepubescent minors or minors 

under age 12, id. § 2252A(a)(5)(B) and (b)(2). The District Court imposed a sentence of 960 months, 

below the guidelines range of life. This sentence consisted of 360 months on each sexual 

exploitation count and 240 months on each remaining count, with two of the sexual exploitation 

counts and one remaining count running consecutively, and the remaining counts running 

concurrently. Fountain challenges this sentence as procedurally and substantively unreasonable. 

The District Court also imposed a 25-year term of supervised release, including a condition 

that Fountain not view, possess, own, subscribe to, or purchase material depicting sexually explicit 

content as defined in 18 U.S.C. § 2256(2) (the “sexually explicit content” condition). Fountain 

challenges the sexually explicit content condition as an abuse of discretion under 18 U.S.C. § 

3583(d). We assume the parties’ familiarity with the underlying facts, the procedural history of the 

case, and the issues on appeal. 

Because Fountain did not object below, we review for plain error his argument that the 

District Court inadequately explained why the sentences for some charges would run consecutively. 

See United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007) (“[P]lain error analysis in full rigor 

applies to unpreserved claims that a district court failed to comply with § 3553(c).”). To meet the 

plain error standard, Fountain must establish a clear error that affected his substantial rights and 

seriously affects the fairness, integrity, or public reputation of judicial proceedings. See United States 

v. Rosa, 957 F.3d 113, 117-18 (2d Cir. 2020). 

Fountain has not met this bar. The District Court explained that a 960-month sentence was 

necessary due to the nature of the offense and Fountain’s efforts to avoid responsibility, including 

by blaming the victim and denying much of the offense conduct. This explanation of “why the total 

punishment imposed [was] sufficient, but not greater than necessary” sufficed to “guide the 

determination . . . to impose [a] sentence[] on multiple counts consecutively.” United States v. Pugh, 

945 F.3d 9, 27 (2d Cir. 2019); see also United States v. Legree, 836 F. App’x 54, 59–60 (2d Cir. 2020)

(affirming a sentence where “the district court could have been more precise in explaining why 

concurrent sentences would not achieve a sufficient sentence” (alteration, citation, and internal 

quotation marks omitted)). 

We also reject Fountain’s argument that the District Court failed to adequately consider the 

factors under 18 U.S.C. § 3553(a). The District Court stated that it had considered these factors, and 

referred explicitly to “the need for the sentence to reflect the seriousness of [Fountain’s] offense, 
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promote respect for the law, and provide just punishment for [Fountain’s] crimes.” App’x 100. 

This explanation suffices in light of our “presum[ption] that a sentencing judge has faithfully 

discharged her duty to consider the statutory factors” and “refus[al] to require judges to explain or 

enumerate how such consideration was conducted.” United States v. Kimber, 777 F.3d 553, 565 (2d 

Cir. 2015) (citations omitted). 

Nor can we conclude that Fountain’s sentence “cannot be located within the range of 

permissible decisions.” United States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013) (citation omitted). 

Fountain’s guidelines imprisonment range was life. In light of the District Court’s explanation, 

discussed above, we cannot find that Fountain’s below-guidelines sentence of 960 months was 

substantively unreasonable. See United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (“It is . . . 

difficult to find that a below-Guidelines sentence is unreasonable.”).1

Because Fountain “failed to challenge th[e] [sexually explicit content] condition in the district 

court,” we apply the plain error standard. United States v. Haverkamp, 958 F.3d 145, 151 (2d Cir. 

2020). “To be permissible, . . . a condition prohibiting access to adult pornography must be 

reasonably related to the enumerated statutory factors and must impose no greater deprivation of 

liberty than reasonably necessary.” United States v. Eaglin, 913 F.3d 88, 99 (2d Cir. 2019); see also 18 

U.S.C. § 3583(d). 

The District Court “adequately . . . connect[ed] the need for th[e] [sexually explicit content]

condition to the defendant’s likelihood of recidivism or to another sentencing factor.” Eaglin, 913 

F.3d at 99. Specifically, the District Court found that allowing Fountain “exposure to any form of 

pornography . . . may lead to high-risk behavior, including potential victimization of additional 

minors,” due to Fountain’s “intimacy defects and poor impulse control[,] which are known risk 

factors for recidivism by sexual offenders.” App’x 109. We cannot find that this conclusion was 

plain error. See United States v. Simmons, 343 F.3d 72, 82 (2d Cir. 2003) (affirming a similar condition 

where the district court “conclude[d] that there was a connection between [the defendant’s] viewing 

and possessing sexually explicit material and his criminal behavior”); see also United States v. Savastio, 

777 F. App’x 4, 7-8 (2d Cir. 2019) (finding no plain error under similar circumstances). 

1 While we have noted that the guidelines governing child pornography offenses “can lead to 

unreasonable sentences that are inconsistent with . . . § 3553” “unless applied with great care,” United 

States v. Jenkins, 854 F.3d 181, 188 (2d Cir. 2017) (citation omitted), we have held that these concerns 

are “inapplicable” where, as here, “the defendant was involved in the production of child 

pornography and had direct contact with child victims,” United States v. Muzio, 966 F.3d 61, 65 (2d 

Cir. 2020). 
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CONCLUSION

We have reviewed all of the arguments raised by Fountain on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the September 15, 2020 judgment of the 

District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk