1 16-974-cr United States v. Horton

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry 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 Cour t 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 30 th day of January, tw o thousand seventeen.

PRESENT: J OSÉ A. C ABRANES , R OSEMARY S. P OOLER , G ERARD E. L YNCH ,

Circuit Judges.

U NITED S TATES OF A MERICA , Appellee

, 16-974-cr

v.

L EVI H ORTON , Defendant-Appellant

.

FOR APPELLEE: M ICHAEL S. B ARNETT (Rajit S. Dosanjh, on the brief ), Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney, Northern District of New York, Syracuse, NY.

FOR DEFENDANT-APPELLANT: J AMES P. E GAN (Lisa A. Peebles, Federal Public Defender, Courtenay K. McKeon, Research & Writing Attorney, on the brief ), Office of the Federal Public Defender, Syracuse, NY.2 Appeal from a judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED

. Defendant-appellant Levi Horton (“Horton”) a ppeals from a March 28, 2016 judgment of the District Court convicting him of violating the conditions of his supervised release. We assume the parties’ familiarity with the underlying facts, th e procedural history of the case, and the issues on appeal. We reference the background of the case on ly as necessary to explain our decision to affirm.

BACKGROUND

On March 26, 2007, Horton pleaded guilty to one count of a five count indictment for possession of a computer containing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On August 1, 2007, the District Court sentenced Horton to a term of imprisonment of 120 months to be followed by a ten-year term of supervised release. Horton’s term of supervised release began on December 4, 2015.

On January 21, 2016, the United States Pr obation Office for the Northern District of New York filed a petition seeking revocation of Hort on’s supervised release based on (1) the possession of child pornography; (2) failure to update his se x offender registration after obtaining two new email accounts; and (3) unauthorized possession of a cellular telephone with internet capability. The District Court held a final revocation hearing on March 1, 2016, during which it determined that Horton was guilty of failing to update his sex offe nder registration and of unauthorized possession of an internet-capable telephone. 1 The District Court also heard testimony from Horton’s probation officer, Kendra Rennie. Officer Rennie testified that Horton admitted he had saved and later deleted roughly fifteen images on his phone, and described th e contents as including both naked adults and minors. Horton described to Office Rennie some of the pictures he had deleted, and told her he had viewed “child porn.” J.A. 82. The District Court, however, reserved decision on the alleged child pornography violation pending supplemental briefing.

On March 22, 2016, the District Court resumed the final revocation hearing. It held that while none of the four recovered images from Horton’s cellular telephone were child pornography, Horton’s admission to Officer Rennie was sufficiently reliable to support a finding that he had

1 Horton does not challenge on appeal either of these two findings.3 violated the terms of his supervised release by possessing child pornography. The District Court sentenced Horton to five years of imprisonment, followed by a life term of supervised release.

DISCUSSION

We review a district court’s findings of supervise d release violations for abuse of discretion. See United States v. Edwards , 834 F.3d 180, 199 (2d Cir. 2016 ). “A district court has abused its discretion if it based its ruling on an erroneous vi ew of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that ca nnot be located within the range of permissible decisions.” In re Sims , 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, alteration, and citations omitted); see also In re City of New York , 607 F.3d 923, 943 n.21 (2 d Cir. 2010) (explaining that “abuse of discretion” is a nonpejorative “term of art”).

Horton makes two arguments on appeal. First, he argues that the District Court abused its discretion in finding that Horton possessed child pornography because it relied solely on Horton’s admission to Officer Rennie. Second, he argues that his life term of supervised release is substantively unreasonable. Both arguments are without merit.

First, sufficient evidence existed for the Dist rict Court to find by a preponderance of the evidence that Horton possessed child pornography. See United States v. Carthen , 681 F.3d 94, 99–100 (2d Cir. 2012) (violations of supervised release need only be proven by a preponderance of the evidence). Horton admitted to Officer Rennie that he downloaded and deleted approximately fifteen images. Among those images, Horton specifically described a set depicting naked thirteen or fourteen year-old boys with their legs spread and pe nises erect. He also expr essly stated that there was “child porn” on his cellular telephone.

Horton’s argument that his admissions abou t possessing child pornography alone are insufficient to find that he violated his supervised release is mistaken. Although “[i]t is a long-settled principle that an accused may not be convicted on his own unco rroborated confession” under the beyond-a-reasonable-doubt standard, United States v. Bryce , 208 F.3d 346, 354 (2d Cir. 1999) (internal quotation marks omitted), we have held that uncorr oborated confessions are sufficient to satisfy the preponderance-of-the-evidence standard, see United States v. Sasso , 59 F.3d 341, 353 (2d Cir. 1995) (“Armienti’s reliance on Opper v. United States , 348 U.S. 84, 89–90 (1954) . . . is misplaced, since that case dealt with the sufficiency of an uncorrobora ted confession to police to establish guilt at a criminal trial beyond a reasonable doubt, not wi th sufficiency to meet the preponderance standard applicable to sentencing.”). Accordingly, Hort on’s admissions that he possessed child pornography were sufficient for the District Court to conclude, by a preponderance of the evidence, that he violated the conditions of his supervised release. The specificity of Horton’s image descriptions, along with the pedophilic narrative and search terms found on Horton’s telephone, provide further support for the District Court’s finding.4 Second, Horton’s life sentence of supervised rele ase is substantively reasonable. In reviewing claims of substantive unreasonableness, we consider “the totality of the circumstances, giving due deference to the sentencing judg e’s exercise of discretion,” and we “will . . . set aside a district
court’s substantive determination only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions.” United States v. Cavera , 550 F.3d 180, 189–90 (2d Cir. 2008) (internal quotation marks omitted) (emphasi s in original). On the record before us, given the seriousness of Horton’s conduct and the speed with which he violated the terms of his supervised release, we find that the District Court’s sentence falls “within the range of permissible decisions.” Id.

CONCLUSION

We have reviewed all of the arguments raised by Horton on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the March 28, 2016 judgment of the District
Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk