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20-510-cr

United States v. Powers

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.

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 29th day of September, two thousand twenty-one.

PRESENT: JOSÉ A. CABRANES,

ROSEMARY S. POOLER,

JOSEPH F. BIANCO,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee, 20-510-cr

v.

HEATH POWERS,

Defendant-Appellant.

FOR DEFENDANT-APPELLANT: John B. Casey, Casey Law LLC, Cohoes, 

NY.

FOR APPELLEE: Rajit S. Dosanjh, Assistant United States 

Attorney, for Antoinette T. Bacon, Acting
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United States Attorney, Northern District 

of New York, Syracuse, NY.

Appeal from an amended judgment dated February 3, 2020, entered by the United States 

District Court for the Northern District of New York (Mae A. D’Agostino, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the amended judgment of the District Court be and hereby 

is AFFIRMED.

Defendant-Appellant Heath Powers pleaded guilty to ten counts of production of child

pornography (Counts 1-5 and 7-11); one count of distribution of child pornography (Count 12); and 

one count of possession of child pornography (Count 13). On appeal, Powers challenges his 

amended sentence, which principally consists of a term of imprisonment of 420 months, as 

substantively unreasonable.1 We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal. 

After a resentencing hearing, the District Court imposed a term of imprisonment of 360 

months on each of Counts 1 through 5 and 7 through 11, to run concurrently; a term of 

imprisonment of 60 months on Count 12, to run consecutively to Counts 1 through 5 and 7 through 

11; and a term of imprisonment of 120 months on Count 13, to run concurrently to Counts 1 

through 5 and 7 through 11, for a total term of imprisonment of 420 months.

We will vacate a sentence as substantively unreasonable only in “exceptional cases where the 

trial court’s decision cannot be located within the range of permissible decisions.”2 We have 

explained that “our review of a sentence for substantive reasonableness is particularly deferential, 

and we will set aside only those sentences that are so shockingly high, shockingly low, or otherwise 

unsupportable as a matter of law that allowing them to stand would damage the administration of 

justice.”3

On appeal Powers argues that his sentence is substantively unreasonable in light of his

history and personal characteristics — namely, his lack of a criminal history, his purported low risk 

of recidivism, his participation in extensive sex offender rehabilitation programs in prison before his 

resentencing, and the fact that he produced and distributed child pornography without a financial 

motivation. We reject Powers’s argument. Our review of the record makes plain that the District 

1 This Court previously remanded this cause with instruction to vacate one count of conviction for a 

conviction error and, thus, for de novo resentencing. See United States v. Powers, 842 F.3d 177 (2d Cir. 2016).

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

3 United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (internal quotation marks and alteration 

omitted).
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Court properly considered all these circumstances in imposing a sentence that was far below the 

advisory sentence of 4,080 months under the advisory United States Sentencing Guidelines.

Specifically, the District Court recognized that Powers had engaged in “significant treatment” and 

rehabilitation efforts, and noted his risk of recidivism was evaluated to be lower than it had been at

the original sentencing.

Further, and in accordance with the concurrence by Judge Pooler in the prior appeal,

4 the 

District Court explained that it had considered United States v. Dorvee5 in imposing Powers’s amended 

sentence. But the District Court went on to explain that it had concluded that Dorvee was 

distinguishable principally because the defendant in that case was not charged with production of 

child pornography and did not have actual contact with a minor victim. In contrast, Powers had 

actual contact with a minor victim and stood convicted of ten counts of child pornography 

production, which this Court has recently emphasized is an offense that is “extremely serious” and 

“ordinarily warrant[s] significantly harsher punishment than possession or even distribution 

offenses.”6

After reviewing the record as a whole, we reject Powers’s argument that the District Court’s 

decision to impose a 420-month term of imprisonment “cannot be located within the range of 

permissible decisions,”7 particularly given Powers’s extremely serious offense conduct. Accordingly, 

we cannot conclude that Powers’s amended sentence was substantively unreasonable.

CONCLUSION

We have reviewed all arguments raised by Powers on appeal and find them to be without 

merit. For the foregoing reasons, we AFFIRM the amended judgment of the District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

4 See Powers, 842 F.3d at 181 (Pooler, J., concurring).

5 616 F.3d 174 (2d Cir. 2010).

6 Muzio, 966 F.3d at 65; see also Paroline v. United States, 572 U.S. 434, 439-40 (2014) (“The demand for 

child pornography harms children in part because it drives production, which involves child abuse. The 

harms caused by child pornography, however, are still more extensive because child pornography is a 

permanent record of the depicted child’s abuse, and the harm to the child is exacerbated by its circulation.” 

(internal quotation marks and alterations omitted)).

7 Cavera, 550 F.3d at 189 (internal quotation marks omitted); see also United States v. Rivernider, 828 F.3d 

91, 111 (2d Cir. 2016).