1 17

‐ 1852

United States v. Jeffrey Butler



### 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

A 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 9 th day of May, two thousand eighteen.

PRESENT: JOHN M. WALKER, JR.,

DENNIS JACOBS,

Circuit Judges,

MICHAEL P. SHEA,

District Judge. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

UNITED STATES OF AMERICA,

Appellee,

‐ v. ‐ 17

‐ 1852

JEFFREY BUTLER,

* Judge Michael P. Shea, District Court Judge of the United States District Court

for the District of Connecticut, sitting by designation.2 Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLANT: Melissa A. Tuohey, Assistant Federal

Public Defender, for Lisa A. Peebles,

Federal Public Defender, Office of the

Federal Public Defender, Syracuse,

NY.

FOR APPELLEE: Rajit S. Dosanjh, Assistant United

States Attorney, for Grant C. Jaquith,

United States Attorney for the

Northern District of New York,

Syracuse, NY.

Appeal from a final judgment and sentence of the United States District

Court for the Northern District of New York (D’Agostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment and sentence of the district

court be AFFIRMED

.

Defendant

‐ appellant Jeffrey Butler appeals from a June 5, 2017 final

judgment of the United States District Court for the Northern District of New

York, convicting Butler of receipt and possession of child pornography, in

violation of 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1), and (b)(2), and

2256(8)(A), and sentencing him, principally, to eighty

‐ seven months

imprisonment. Butler argues on appeal that his sentence is substantively

unreasonable because, inter alia, he never physically touched a minor, and he

engaged in the offense conduct for less than a year. We assume the parties’

familiarity with the underlying facts, the procedural history, and the issues

presented for review.

“In examining the substantive reasonableness of a sentence, we review the

length of the sentence imposed to determine whether it cannot be located within3 the range of permissible decisions.” United States v. Matta, 777 F.3d 116, 124 (2d

Cir. 2015) (internal quotation marks omitted); see also United States v. Villafuerte,

502 F.3d 204, 206 (2d Cir. 2007) (“Substantive reasonableness involves [assessing]

the length of the sentence imposed in light of the factors enumerated under 18

U.S.C. § 3553(a).”). 1 “[O]ur substantive review of a sentence is akin to review

under an ‘abuse

‐ of

‐ discretion’ standard.” United States v. Park, 758 F.3d 193,

199 (2d Cir.2014). Thus, the reviewing court must “take into account the totality

of the circumstances, giving due deference to the sentencing judge’s exercise of

discretion, and bearing in mind the institutional advantages of district courts,”

and we will “set aside a district court ʹ s substantive determination only in

exceptional cases.” United States v. Cavera, 550 F.3d 180, 189

‐ 190 (2d Cir. 2008)

(internal quotation marks omitted). In “the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.” United States v.

Perez

‐ Frias, 636 F.3d 39, 43 (2d Cir. 2011) (internal quotation marks omitted).

Butler argues that the district court’s reliance on two factors

‐‐ the need to

provide just punishment for the offense and the need to protect the public

‐‐ fails to

consider additional mitigating factors pertaining to “the nature and

circumstances of the offense and the history and characteristics of the defendant.”

18 U.S.C. § 3553(a). In particular, Butler emphasizes that he never physically

touched a child, he engaged in the conduct for under a year, and suffers from

serious mental health and substance abuse issues. Butler also argues that his

sentence fails to account for the unreasonable results created by

“all

‐ but

‐ inherent” sentencing enhancements under U.S.S.G. § 2G2.2. United

States v. Jenkins, 854 F.3d 181, 189 (2d Cir. 2017). Accordingly, Butler argues that

he should be sentenced to a term of imprisonment no greater than the statutory

minimum of sixty months.

None of Butler’s arguments are meritorious, and they clash with the record.

First, the district court properly weighed all of the 18 U.S.C. § 3553(a) sentencing

factors, including express consideration of Butler’s personal characteristics and

history.

1 Butler does not contend that his sentence is procedurally unreasonable.4 Second, while Butler attempts to downplay the serious nature of his crimes,

he collected and shared a large number of child pornography videos on

peer

‐ to

‐ peer networks, including some videos that are extremely violent and

sadistic. See United States v. Aumais, 656 F.3d 147, 157 (2d Cir. 2011) (finding

the district court’s sentence “‘sufficient, but not greater than necessary’ to comply

with the purposes of § 3553(a)

. . . given the violent nature of the images, the

number of them, and other considerations” (internal citation omitted)).

Additionally, while on supervised release following his arrest for the crimes at

issue here, Butler violated the terms of release by possessing, without

authorization, a flash drive, internet

‐ capable phone, and a laptop computer, and

most troubling, Butler engaged in internet chats with a girl he believed to be a

minor.

Third, Butler does not demonstrate acceptance of responsibility for his

crimes. Butler stated in his pre

‐ sentence interview that he “did not know the

specifics that were on the videos” and that he did not use specific search terms to

seek out child pornography. Pre

‐ Sentence Report ¶ 21. Contrary to these

assertions, the record demonstrates that Butler admitted to using search terms

specifically associated with child pornography; he possessed more child

pornography than adult pornography; that (as far back as 2012) his previous wife

confronted him for “watching pornography depicting young girls,”

Presentencing Report at ¶¶ 18, 50; and his girlfriend saw files on an old laptop

marked “preteen,” id. ¶ 18; see United States v. Broxmeyer, 699 F.3d 265, 295 (2d

Cir. 2012) (finding that the defendant’s “lack of remorse for, or even appreciation

of, the seriousness of the totality of his conduct

. . . expanded the range of

substantively reasonable sentences to allow the district court to afford adequate

specific deterrence and protection of the public”).

Butler relies on our precedent in Jenkins, 854 F.3d 181 and United States v.

Dorvee, 616 F.3d 174 (2d Cir. 2010), to support his argument that his sentence was

greater than necessary to serve the purposes of sentencing. However, these

cases are largely inapposite. Butler’s sentence of 87 months is only 27 months

above the mandatory minimum for Count One, and 153 months below the

statutory maximum, whereas in Jenkins and Dorvee, the sentences imposed were5 either just below or at the statutory maximum. See Aumais, 656 F.3d at 157

(distinguishing the defendant’s sentence as being “well short of the statutory

maximum” from the sentence in Dorvee). Further, in contrast to Jenkins, Butler

used peer

‐ to

‐ peer file sharing services, and contacted a girl he believed to be a

minor while on supervised release. See Jenkins, 854 F.3d at 190 (“In particular,

the government did not claim he used peer

‐ to

‐ peer sharing software, distributed

images, or participated in chat rooms devoted to child pornography. Nor does

the government allege that he contacted or attempted to contact a child or that he

engaged in any ‘sexually dangerous behavior’ separate from his crimes of

conviction.”).

Butler’s sentence is substantively reasonable. Accordingly, the final

judgment and sentence of the district court is hereby AFFIRMED

.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK