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United States v. Hamilton

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, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2

New York, on the 23 rd day of December, two thousand thirteen. 3

4

PRESENT: 5

6

D EBRA A NN L IVINGSTON

, 7

G ERARD E. L YNCH

, 8

R AYMOND J. L OHIER

, J R

., 9

10

Circuit Judges

. 11

_______________________________________________ 12

13

U NITED S TATES OF A MERICA

, 14

15

Appellee

, 16

‐ v.

‐ No. 12

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18

W AYNE D. H AMILTON

, AKA W AYNE H AMILTON

, 19

Defendant

‐ Appellant

. 20

_______________________________________________ 21

1B RENDA K. S ANNES

, M IROSLAV L OVRIC

, R AJIT S INGH 1

D OSANJH

, A SSISTANT U NITED S TATES A TTORNEYS for 2

Richard S. Hartunian, United States Attorney for the 3

Northern District of New York (On Submission), 4

Syracuse, New York, for Appellee

. 5

G ENE V. P RIMOMO

, A SSISTANT F EDERAL P UBLIC 6

D EFENDER

, M OLLY K ATHLEEN C ORBETT (On Submission), 7

Albany, New York, for Defendant

‐ Appellant. 8

Appeal from a November 1, 2012 judgment of conviction of the United States 9

District Court for the Northern District of New York (McAvoy, J. ). 10

UPON DUE CONSIDERATION

, it is hereby ORDERED, ADJUDGED

, and 11

DECREED that the judgment of conviction of the District Court is AFFIRMED

. 12

Defendant

‐ Appellant Wayne Hamilton (“Hamilton”) pleaded guilty to five 13

counts of production of child pornography in violation of 18 U.S.C. §§ 2251(a), 14

2251(e); one count of receipt of material involving the sexual exploitation of minors 15

in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1); and one count of possession of 16

child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B); 2252A(b)(2). The 17

district court sentenced Hamilton principally to 360 months on each of counts one 18

through five to run consecutively, and to 240 months on count six and 120 months 19

on count seven, both sentences to run concurrently with each other and with the 20

other counts, for a total of 1,800 month’s incarceration. Hamilton appeals his 21

2sentence, asserting that the district court erred in its Guidelines calculation by 1

including the statutory maximums of the two grouped counts—Counts 6 and 7, the 2

receipt count and the possession count—in its determination of the combined 3

statutory maximum capping the otherwise applicable Guideline of life 4

imprisonment. Hamilton argues, in addition, that the sentence of 1,800 months was 5

substantively unreasonable. We assume the parties’ familiarity with the facts and 6

the procedural history. 7

“We review a district court’s sentence for procedural and substantive 8

reasonableness, a standard akin to review for abuse of discretion.” United States v. 9

Cavera

, 550 F.3d 180, 210 (2d Cir. 2008) (en banc) (internal quotation marks omitted). 10

“Procedural error occurs in situations where, for instance, the district court 11

miscalculates the Guidelines; treats them as mandatory; does not adequately explain 12

the sentence imposed; does not properly consider the § 3553(a) factors; bases its 13

sentence on clearly erroneous facts; or deviates from the Guidelines without 14

explanation.” United States v. Cossey

, 632 F.3d 82, 86 (2d Cir. 2011) (citing Gall v. 15

United States

, 552 U.S. 38, 51 (2007)). We will “set aside a district court’s substantive 16

determination” as to an appropriate sentence “only in exceptional cases where the 17

trial court’s decision cannot be located within the range of permissible decisions.” 18

Cavera

, 550 F.3d at 189 (emphasis in original) (internal quotation marks omitted). 19

3I. Procedural challenge to Guidelines calculation 1

Hamilton argues that the district court’s Guidelines calculation was based 2

upon an erroneous use of the grouping and stacking provisions in the United States 3

Sentencing Commission Guidelines Manual—namely, that the district court erred 4

by including the statutory maximums of two grouped counts (Counts 6 and 7) in its 5

determination of the combined statutory maximum capping the otherwise 6

applicable Guideline of life imprisonment. While we typically employ “a standard 7

akin to review for abuse of discretion,” in reviewing a procedural challenge, Cavera

, 8

550 F.3d 180, 210 (2d Cir. 2008) (en banc), where no procedural error was raised in 9

the district court, the claim of error is forfeited on appeal, and we review only for 10

plain error, see United States v. Villafuerte

, 502 F.3d 204, 207 (2d Cir. 2007). 11

Here, Hamilton not only failed to raise an objection in the district court, but 12

also specifically informed the district court in his sentencing memorandum that he 13

had “no specific objections to the presentence report related to the calculation of the 14

guidelines range.” Hamilton’s failure to raise an objection and statement that he had 15

no objection to the calculation of the Guidelines range might well be viewed as a 16

true waiver precluding appeal. See

, e.g.

, United States v. Eberhard

, 525 F.3d 175, 179 17

(2d Cir. 2008) (declining to consider defendant’s challenge to sentencing 18

4enhancement when he failed to challenge Presentence Investigation Report in 1

district court). We need not here conclusively decide whether Hamilton’s 2

procedural sentencing challenge was waived or forfeited because, in any event, he 3

fails to demonstrate error. A district court may “impose[ ] consecutive sentences to 4

produce a combined sentence equal to the total punishment.” United States v. Loeb

, 5

45 F.3d 719, 723 (2d Cir. 1995). Accordingly, the district court did not commit plain 6

error. 7

II. Substantive challenge to length of sentence 8

Hamilton next maintains that a cumulative sentence of 1,800 months is 9

substantively unreasonable because given his age and life expectancy, the sentence 10

amounts to “multiple life sentences.” But of course, no prisoner can serve more than 11

a life sentence. Any sentence that extends beyond Hamilton’s maximum 12

conceivable life expectancy has no practical effect on him. Thus, the sentence 13

imposed on Hamilton (like any sentence a third its length) is simply equivalent to 14

a life sentence. Insofar as Hamilton argues that such lengthy sentences should be 15

“reserved [for] intentional murder,” we find such an argument unavailing. Nor are 16

we persuaded that a life sentence in the case at bar overstates the “seriousness of the 17

offense,” see 18 U.S.C. § 3553(a)(2)(A), given Hamilton’s role in producing graphic 18

5child pornography by filming himself sexually abusing children as young as four 1

years old. 2

Hamilton’s recommended Guidelines sentence was life imprisonment. Since 3

none of the individual counts of conviction permit a life sentence, the Guidelines 4

recommend imposing the maximum sentence on one count, and imposing 5

additional consecutive sentences to the extent necessary to “produce a combined 6

sentence equal to the total punishment” recommended by the applicable Guideline 7

calculation. U.S.S.G. § 5G1.2(d). The district court thus was within the Guideline 8

recommendation in imposing consecutive sentences to the extent necessary to 9

guarantee a life sentence. The 1,800 month actually imposed sentence falls below 10

the 2,160 month cap, reflecting Hamilton’s statutory maximum. While it could be 11

argued that consecutive sentences on two counts would be sufficient to guarantee 12

an effective life sentence, any potential error in imposing additional consecutive 13

sentences is necessarily harmless, since any sentence in excess of Hamilton’s actual 14

lifespan cannot add so much as a day to his term of imprisonment. 15

The district court did not mechanically impose a Guideline sentence. During 16

Hamilton’s sentencing proceeding, the district court considered all of the factors 17

prescribed by 18 U.S.C. § 3553(a). In particular, the court took note not only of the 18

6seriousness of Hamilton’s offense conduct, but also Hamilton’s difficult childhood, 1

his struggle with alcoholism, and his expressions of remorse. The court did not err, 2

however, in concluding that Hamilton’s crimes were grave. Because Hamilton’s 3

sentence is within the broad range of permissible decisions available to the district 4

court, it cannot be deemed substantively unreasonable. See Cavera

, 550 F.3d at 189; 5

United States v. Jones

, 531 F.3d 163, 174 (2d Cir. 2008). We have reviewed Hamilton’s 6

remaining arguments and find them to be without merit. For the foregoing reasons, 7

the judgment of the district court is AFFIRMED

. 8

FOR THE COURT: 9

Catherine O’Hagan Wolfe, Clerk 10

7