14-4020-cr

United States v. Durand

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 5th 4 day of October, two thousand fifteen.

5

6 PRESENT: RALPH K. WINTER,

7 DENNIS JACOBS,

8 PIERRE N. LEVAL,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 14-4020-cr

16

17 CHRISTOPHER DURAND, 

18 Defendant-Appellant.

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20

21 FOR APPELLANT: Randi J. Bianco and James P.

22 Egan, for Lisa Peebles, Federal

23 Public Defender for the Northern

24 District of New York, Syracuse,

25 New York.

26

27 FOR APPELLEE: Lisa M. Fletcher and Paul D.

28 Silver, for Richard S.

1
1 Hartunian, United States

2 Attorney for the Northern

3 District of New York, Albany,

4 New York.

5

6 Appeal from a judgment of the United States District

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

8

9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10 AND DECREED that the judgment of the district court be

11 AFFIRMED. 

12

13 Christopher Durand appeals from the judgment of the

14 United States District Court for the Northern District of

15 New York (Mordue, J.), convicting him of seventeen counts of

16 transporting, distributing, receiving, and possessing child

17 pornography and sentencing him to a 188-month term of

18 incarceration, followed by lifetime supervised release. 

19 Durand challenges the supervised release portion of his

20 sentence as both procedurally and substantively

21 unreasonable. We assume the parties’ familiarity with the

22 underlying facts, the procedural history, and the issues

23 presented for review. 

24

25 A district court commits procedural error if it “does

26 not consider the [18 U.S.C.] § 3553(a) factors” or “fails

27 adequately to explain its chosen sentence.” United States

28 v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). 

29 Durand argues that the district court committed procedural

30 error by failing to separately articulate its reasons for

31 imposing a lifetime term of supervised release. Because

32 Durand raises this argument for the first time on appeal, we

33 review the contention for plain error. United States v.

34 Wagner-Dano, 679 F.3d 83, 88 (2d Cir. 2012). The court

35 stated its reasons for imposing its overall sentence with

36 specific reference to a number of § 3553(a) factors,

37 including the nature of the offense, the need for treatment,

38 and the characteristics of the defendant. 18 U.S.C.

39 § 3553(a); see Sent’g Tr. 9:1-2 (noting Durand’s “extremely

40 large collection of child pornography, some of which he

41 distributed to others over the internet”); id. 9:9-11

42 (noting “that the defendant is amenable to . . .

43 treatment”); id. 9:12-15 (noting circumstances of

44 defendant’s “difficult and disadvantaged youth”). A

45 sentencing court must explain its “chosen sentence.” 

46 Cavera, 550 F.3d at 190 (emphasis added); see also 18 U.S.C.

47 § 3553(c) (“The court, at the time of sentencing, shall

2
1 state in open court the reasons for its imposition of the

2 particular sentence.” (emphasis added)). There is no

3 authority in this circuit for the proposition that a

4 sentencing court must separately articulate reasons for the

5 supervised release component of a sentence. See United

6 States v. Mostafa, 299 F. App’x 86, 88 (2d Cir. 2008) (“In

7 the absence of authority to the contrary, we cannot conclude

8 that the District Court’s imposition of a term of supervised

9 release without a separate statement [of supporting reasons]

10 in open court constituted an error of any kind that affected

11 substantial rights.”). We conclude that failure to

12 separately explain the reason for the supervised release

13 component of the sentence was not plain error.

14

15 Durand challenges as substantively unreasonable

16 lifetime supervised release. The conditions of supervised

17 release include, among other things, restrictions on

18 Durand’s ability to interact with children and to use the

19 internet. We review the substantive reasonableness of the

20 sentence for abuse of discretion, United States v. Norman,

21 776 F.3d 67, 76 (2d Cir. 2015), and will “set aside a

22 district court’s substantive determination only in

23 exceptional cases where the trial court’s decision cannot be

24 located within the range of permissible decisions,” Cavera,

25 550 F.3d at 189 (internal quotation marks omitted). Given

26 the nature of Durand’s collection of child pornography

27 (consisting of over 50,000 images and 1,600 videos,

28 including material depicting the sexual abuse of toddlers

29 and infants) and his conduct in distributing such material

30 to others, we conclude that the imposition of a lifetime

31 term of supervised release was not substantively

32 unreasonable.

33

34 For the foregoing reasons, and finding no merit in

35 Durand’s other arguments, we hereby AFFIRM the judgment of

36 the district court.

37

38 FOR THE COURT:

39 CATHERINE O’HAGAN WOLFE, CLERK

40

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