19-2996

United States v. Talada

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 TO 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 5th day of October, two thousand twenty.

PRESENT: DENNIS JACOBS

GERARD E. LYNCH, 

RICHARD J. SULLIVAN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. No. 19-2996

CHAD AARON TALADA,

Defendant-Appellant.

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FOR APPELLANT: JAY S. OVSIOVITCH, Federal Public 

Defender’s Office, Rochester, NY. 

FOR APPELLEES: TIFFANY H. LEE, Assistant United 

States Attorney, for James P. Kennedy, 

Jr., United States Attorney for the 

Western District of New York, 

Buffalo, NY.

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

District of New York (Charles J. Siragusa, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED. 

Defendant-Appellant Chad Talada appeals from a judgment of conviction 

entered in the United States District Court for the Western District of New York 

(Siragusa, J.) following his guilty plea to one count of knowingly receiving child 

pornography following a prior conviction in violation of 18 U.S.C. 

§ 2252A(a)(2)(A) & 2252A(b)(1). The district court sentenced Talada to 360

months’ imprisonment and fifteen years of supervised release. On appeal, Talada 

argues that his sentence was unreasonable because the district court applied

§ 2G2.2 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) 

without considering unwarranted sentencing disparities that can result under that 
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Guideline. He also challenges two conditions of his supervised release: the 

standard “notification of risk” condition and a special condition requiring that he 

submit to verification testing. We assume the parties’ familiarity with the 

underlying facts, procedural history of the case, and the issues on appeal, to which 

we refer only as necessary to explain our decision.

1. Talada’s Sentence Was Reasonable

We review a district court’s sentencing decision for procedural and 

substantive reasonableness “under a deferential abuse-of-discretion standard.” 

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks 

omitted). A sentencing court commits procedural error if, among other things, it 

“treats the Guidelines as mandatory,” “does not consider the [18 U.S.C.] § 3553(a) 

factors,” or “fails adequately to explain its chosen sentence.” Id. at 190. A sentence 

is substantively unreasonable “only in exceptional cases where the trial court’s 

decision cannot be located within the range of permissible decisions.” Id. at 189 

(internal quotation marks omitted).

Talada argues that the district court procedurally erred because it 

“committed an error of law” and “failed to fully consider” United States v. Spoor, 

904 F.3d 141 (2d Cir. 2018), and United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). 
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Talada Br. at 18. In those cases, this Court acknowledged our “concern that the 

child pornography guideline, U.S.S.G. § 2G2.2, does not adequately distinguish 

between mere possession offenses and relatively more serious crimes . . . and tends 

to wash out differences in criminal history.” Spoor, 904 F.3d at 157 n.13 (citing 

Dorvee, 616 F.3d at 187). We thus warned that rote adherence to the Guideline can 

lead to “virtually no distinction between the sentences” among relatively low-risk 

offenders and the most dangerous ones. Dorvee, 616 F.3d at 187. 

The record here does not support Talada’s contention that the district court 

failed to consider Dorvee or the § 3553(a) factors, including the need to avoid 

unwarranted sentencing disparities. See App’x at 106–07 (district court expressly 

stating that it had considered the various factors and understood that the 

Sentencing Guidelines are “advisory” and “not mandatory”). Noting that it was 

“very familiar” with Dorvee, id. at 114, and “fully underst[ood] that it [could] 

depart downward,” id. at 110, the court nevertheless determined that a 360-month 

sentence was necessary to “protect the public from further crimes” by Talada, id. 

at 115. See also id. at 110–11. And while the court recognized the concern in Dorvee 

and Spoor that § 2G2.2 could elide differences in criminal history or conduct, the 

court distinguished the facts at issue in those cases, finding that Talada’s multiple
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prior convictions and violations of supervised release – which related to child 

pornography or actual contact with minors – supported the conclusion that Talada 

was a recidivist who “demonstrated over and over” that he was “unable to stop 

committing child exploitation crimes.” Id. at 115. We find no procedural error

where the court properly calculated the Guidelines range and reviewed casespecific factors, including Talada’s criminal history and conduct on supervised 

release, to determine the appropriate sentence.

To the extent that Talada suggests his sentence is substantively 

unreasonable, that argument also fails. For starters, Dorvee does “not stand for the 

proposition that nearly any sentence for child pornography above the mandatory 

minimum is substantively unreasonable.” United States v. Muzio, 966 F.3d 61, 64 

(2d Cir. 2020). As we have explained, our warning in Dorvee that a 

“straightforward application of the sentencing Guidelines can lead to 

unreasonable sentences” arose in the “limited context” and “narrow 

circumstances” present in that case, which involved, among other things, a 

defendant who – unlike Talada – “had no contact with children,” even virtually. 

Id. at 64–65 (internal quotation marks omitted). The fact that subsequent courts 

considering Dorvee may have found similarly narrow circumstances and 
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sentenced defendants “at the bottom of or below the Guidelines range,” Talada Br. 

at 36, is of no moment, since Talada’s conduct and history are readily 

distinguishable. We are satisfied that the district court carefully applied the 

Guidelines, considering Talada’s past conduct and poor adjustment to supervised 

release, and imposed a sentence that was neither “shockingly high” nor 

“otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 

123 (2d Cir. 2009). Applying our deferential standard of review, we conclude that 

the sentence was substantively reasonable and would in no way “damage the 

administration of justice.” Id.

2. Talada’s Challenges To The Conditions Of His Supervised Release Are 

Unavailing 

Talada initially challenged two conditions of his supervised release: the 

standard notification of risk condition, and a verification testing condition that 

would permit the use of a computerized voice stress analyzer (“CVSA”) or “other 

. . . testing” chosen by the probation officer. As he later acknowledged in a letter 

filed under Federal Rule of Appellate Procedure 28(j), his challenges to the risk 

condition and to the inclusion of the CVSA in the verification testing condition are 

not ripe for review under our recent opinions in United States v. Traficante, 966 F.3d 

99 (2d Cir. 2020), and United States v. Birkedahl, 973 F.3d 49 (2d Cir. 2020), 
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respectively. And Talada’s contention that the probation office should not be 

permitted to use undefined “other . . . testing” is foreclosed by United States v. 

Villafane-Lozada, __ F.3d __, 2020 WL 5242960, at *4 (2d Cir. 2020), which squarely 

rejected the defendant’s argument that an “open-ended” verification condition 

that “left to the probation officer . . . the type of testing that would be employed” 

constituted an impermissible delegation of judicial discretion that would “allow 

the probation officer to subject him to any number of invasive testing 

technologies,” id. 

We have considered Talada’s remaining arguments and conclude that they 

are without merit. Accordingly, we DISMISS as unripe Talada’s challenges to the 

risk condition and to the inclusion of the CVSA in the verification testing condition 

and otherwise AFFIRM the judgment of the district court. 

FOR THE COURT: 

Catherine O=Hagan Wolfe, Clerk of Court