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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

New York, on the 23rd 4 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.

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13 United States of America, 

14 Appellee,

15

16 -v.- 10-4255-cr

17

18 David A. Shane,

19 Defendant-Appellant.

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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
2

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
3

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
4

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

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