14-4020-cr United States v. Durand



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 5 th** **day of October, two thousand fifteen.** 4 5 **PRESENT: RALPH K. WINTER,** 6 **DENNIS JACOBS,** 7 **PIERRE N. LEVAL,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 14-4020-cr** 15 16 **CHRISTOPHER DURAND,** 17 **Defendant-Appellant**

**.** 18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** Randi J. Bianco and James P. 21 Egan, forLisa Peebles, Federal 22 Public Defender for the Northern 23 District of New York, Syracuse, 24 New York. 25 26 **FOR APPELLEE:** Lisa M. Fletcher and Paul D. 27 Silver, forRichard S. 28

1Hartunian, United States 1 Attorney for the Northern 2 District of New York, Albany, 3 New York. 4 5 Appeal from a judgment of the United States District 6 Court for the Northern District of New York (Mordue, J. ). 7 8 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 9 **AND DECREED**that the judgment of the district court be 10
**AFFIRMED**

. 11 12 Christopher Durand appeals from the judgment of the 13 United States District Court for the Northern District of 14 New York (Mordue, J. ), convicting him of seventeen counts of 15 transporting, distributing, receiving, and possessing child 16 pornography and sentencing him to a 188-month term of 17 incarceration, followed by lifetime supervised release

. 18 Durand challenges the supervised release portion of his 19 sentence as both procedurally and substantively 20 unreasonable. We assume the parties’ familiarity with the 21 underlying facts, the procedural history, and the issues 22 presented for review. 23 24 A district court commits procedural error if it “does 25 not consider the [18 U.S.C.] § 3553(a) factors” or “fails 26 adequately to explain its chosen sentence.” United States 27 v. Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc ). 28 Durand argues that the district court committed procedural 29 error by failing to separately articulate its reasons for 30 imposing a lifetime term of supervised release. Because 31 Durand raises this argument for the first time on appeal, we 32 review the contention for plain error. United States v. 33 Wagner-Dano , 679 F.3d 83, 88 (2d Cir. 2012). The court 34 stated its reasons for imposing its overall sentence with 35 specific reference to a number of § 3553(a) factors, 36 including the nature of the offense, the need for treatment, 37 and the characteristics of the defendant. 18 U.S.C. 38 § 3553(a); seeSent’g Tr. 9:1-2 (noting Durand’s “extremely 39 large collection of child pornography, some of which he 40 distributed to others over the internet”); id. 9:9-11 41 (noting “that the defendant is amenable to . . . 42 treatment”); id. 9:12-15 (noting circumstances of 43 defendant’s “difficult and disadvantaged youth”). A 44 sentencing court must explain its “chosen sentence .” 45 Cavera , 550 F.3d at 190 (emphasis added); see also18 U.S.C. 46 § 3553(c) (“The court, at the time of sentencing, shall 47

2state in open court the reasons for its imposition of the 1 particular sentence .” (emphasis added)). There is no 2 authority in this circuit for the proposition that a 3 sentencing court must separately articulate reasons for the 4 supervised release component of a sentence. See United 5 States v. Mostafa , 299 F. App’x 86, 88 (2d Cir. 2008) (“In 6 the absence of authority to the contrary, we cannot conclude 7 that the District Court’s imposition of a term of supervised 8 release without a separate statement [of supporting reasons] 9 in open court constituted an error of any kind that affected 10 substantial rights.”). We conclude that failure to 11 separately explain the reason for the supervised release 12 component of the sentence was not plain error. 13 14 Durand challenges as substantively unreasonable 15 lifetime supervised release. The conditions of supervised 16 release include, among other things, restrictions on 17 Durand’s ability to interact with children and to use the 18 internet. We review the substantive reasonableness of the 19 sentence for abuse of discretion, United States v. Norman
, 20 776 F.3d 67, 76 (2d Cir. 2015), and will “set aside a 21 district court’s substantive determination only in 22 exceptional cases where the trial court’s decision cannot be 23 located within the range of permissible decisions,” Cavera
, 24 550 F.3d at 189 (internal quotation marks omitted). Given 25 the nature of Durand’s collection of child pornography 26 (consisting of over 50,000 images and 1,600 videos, 27 including material depicting the sexual abuse of toddlers 28 and infants) and his conduct in distributing such material 29 to others, we conclude that the imposition of a lifetime 30 term of supervised release was not substantively 31 unreasonable. 32 33 For the foregoing reasons, and finding no merit in 34 Durand’s other arguments, we hereby **AFFIRM** the judgment of 35 the district court. 36 37 FOR THE COURT: 38 CATHERINE O’HAGAN WOLFE, CLERK 39 40

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