11-3859-cr 

United States v. Shay

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 Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 28th day of June, two thousand twelve.

PRESENT: RALPH K. WINTER,

CHESTER J. STRAUB,

 DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA, 

Appellee,

 -v.- 11-3859-cr

JOSEPH MARK SHAY, 

Defendant-Appellant.

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FOR APPELLEE: BRENDA K. SANNES, Assistant United

States Attorney (Elizabeth A.

Horsman, Assistant United States

Attorney, on the brief), for

Richard S. Hartunian, United States 

Attorney for the Northern District

of New York, Syracuse, New York.

FOR DEFENDANT-APPELLANT: MOLLY K. CORBETT, Assistant Federal

Public Defender (Timothy Austin,

Assistant Federal Public Defender

on the brief), for Lisa Peebles,

Acting Federal Public Defender for

the Northern District of New York,

Albany, New York.
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Appeal from a judgment of the United States District

Court for the Northern District of New York (Sharpe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

On August 12, 2009, defendant-appellant Joseph Mark

Shay pled guilty to one count of distribution of child

pornography and one count of receipt of child pornography in

violation of 18 U.S.C. §§ 2252A(a)(2) and (a)(5)(B). On February

24, 2010, the district court sentenced Shay to 210 months'

imprisonment on each count, to run concurrently, and a lifetime

term of supervised release. Shay appealed the district court's

February 24, 2010, judgment. On April 6, 2011, this Court

vacated the district court's judgment and remanded for further

consideration in light of United States v. Dorvee, 616 F.3d 174

(2d Cir. 2010). On August 24, 2011, on remand, the district

court resentenced Shay to the same sentence. Shay appealed,

contending that the district court's second sentence was

procedurally and substantively unreasonable. 

We assume the parties' familiarity with the underlying

facts, the procedural history, and the issues presented for

review.

Upon reviewing the district court's sentence under a

"deferential" abuse of discretion standard, we conclude that the

district court's sentence survives appellate scrutiny because it

was procedurally and substantively reasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007). 
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First, the district court's sentence was procedurally

reasonable because no significant procedural error was committed. 

Id. At resentencing, the district court adequately explained its

chosen sentence, discussing: Dorvee, the child pornography

guidelines, the 18 U.S.C. § 3553(a) factors, the substantial

length of time over which Shay committed the offenses, the volume

of child pornography involved, the victim statements, and the

public harm caused by Shay's conduct. See Gall, 552 U.S. at 51.

Second, the district court's sentence was substantively

reasonable because, taking into account the "totality of

circumstances," id., the sentence fell within the range of

permissible decisions, see United States v. Cavera, 550 F.3d 180,

189 (2d Cir. 2008) (en banc). Indeed, during the course of

twelve years, Shay collected over 41,000 images and 372 video 

files of child pornography, including images portraying the

sadistic abuse of children. 

We have considered Shay's remaining arguments and find

them to be without merit. Accordingly, we hereby AFFIRM the

judgment of the district court.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, CLERK