1 10-4255-cr United States v. Shane


### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A**  **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A**  **PPENDIX 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 23 rd** **day of December, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **PIERRE N. LEVAL,** 8 **DEBRA ANN LIVINGSTON,** 9 **Circuit Judges .**  10 11 - - - - - - - - - - - - - - - - - - - -X 12 **United States of America,** 13 **Appellee ,**  14 15 **-v.- 10-4255-cr** 16 17 **David A. Shane,** 18 **Defendant-Appellant .**  19 - - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** Lisa Peebles, Federal Public 22 Defender, Syracuse, New York 23 (James P. Egan and James F. 24 Greenwald, Federal Public 25 Defender, Syracuse, NY, on the 26 brief ) 27 28 **FOR APPELLEE:** Julie S. Pfluger and Lisa M. 29 Fletcher, Assistant United 302 States Attorneys, Of Counsel, 1 Syracuse, NY; for Richard S. 2 Hartunian, United States 3 Attorney, Northern District of 4 New York, Syracuse, NY) 5 6 7 Appeal from a judgment of the United States District 8 Court for the Northern District of New York (Mordue, C.J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 11
**AND DECREED**that the District Court’s judgment is **AFFIRMED**
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13 Defendant-Appellant, David A. Shane, pleaded guilty to 14 production and possession of child pornography. On the 15 production count, he was sentenced to 188 months in prison 16 and three years of supervised release. On the possession 17 count, he was sentenced to 120 months in prison and a 18 lifetime term of supervision. The sentences will run 19 concurrently. He was also assessed a special assessment of 20 $200. Shane challenges these sentences as substantively 21 unreasonable. We assume the parties’ familiarity with the 22 underlying facts, the procedural history of the case, and 23 the issues on appeal. 24 Shane cannot demonstrate that the District Court abused 25 its discretion in imposing a sentence of 188 months in 26 prison and a life term of supervision. See Gall v. United 273 States , 552 U.S. 38, 41 (2007) (holding that appellate 1 courts must review sentences for reasonableness under the 2 “deferential abuse-of-discretion standard”); accordUnited 3
States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en 4 banc ). A substantive challenge requires the defendant to 5 show that the sentence falls outside the “broad range” of 6 sentences “that can be considered reasonable under the 7 totality of the circumstances” and in light of “due 8 deference [afforded] to the district court’s exercise of 9 judgment.” United States v. Jones , 531 F.3d 163, 174 (2d 10 Cir. 2008); accordid. (“In short, in determining 11 substantive reasonableness, a reviewing court will set aside 12 only those outlier sentences that reflect actual abuse of a 13 district court’s considerable sentencing discretion.”). 14 Shane cannot sustain this burden, given (1) the 15 particulars of his offenses; (2) the District Court’s due 16 consideration of Shane’s personal circumstances in 17 concluding that the sentence imposed was nevertheless 18 warranted; (3) the sentence was within the applicable 19 Sentencing Guidelines range, United States v. Fernandez , 443 20 F.3d 19, 27 (2d Cir. 2006) (recognizing that sentences 21 within the guidelines range are substantively reasonable the 22 “overwhelming majority of” the time); (4) the Sentencing 23 Commission’s recommendation of a maximum term of supervision 244 for sex offenders, U.S. S ENTENCING G UIDELINES MANUAL § 1 5D1.2(b)(2) (Policy Statement); (5) the statutory authority 2 to impose lifetime terms of supervision for child sex 3 offenders in light of congressional findings that such 4 supervision is sometimes necessary, 18 U.S.C. § 3583(k); 5
H.R. R EP . N O . 108-66, at 42 (2003) (Conf. Rep.), reprinted in 6 2003 U.S.C.C.A.N. 683, 684; and (6) this Court’s authority 7 upholding such a term of supervision, see United States v. 8 Hayes , 445 F.3d 536, 537 (2d Cir. 2006). 9 10 We have considered all of Shane’s additional arguments 11 and find them to be without merit. Accordingly, the 12 judgment of the District Court is **AFFIRMED**
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14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 18 19