United States v. McGowan , 615 F. App'x 1 ( 2015 )

14-501-cr
United States v. McGowan
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 June, two thousand fifteen.
PRESENT: RALPH K. WINTER,
PIERRE N. LEVAL,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 14-501-cr
MICHAEL J. MCGOWAN,
Defendant-Appellant,
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FOR APPELLANT: James I. Glasser, Wiggin and Dana LLP, New
Haven, Connecticut.
FOR APPELLEE: Emily Berger, Allen L. Bode, Assistant United
States Attorneys, for Kelly T. Currie, Acting
United States Attorney for the Eastern District
of New York, Brooklyn, New York.
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Appeal from a judgment of the United States District Court for the Eastern District
of New York (Sandra J. Feuerstein, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on February 6, 2014, is AFFIRMED.
Defendant Michael McGowan stands convicted after guilty pleas to three counts
of sexual exploitation of children based on his abuse of three minors ages 10 to 13, which
he recorded. See 18 U.S.C. § 2251(a), (d). McGowan was sentenced to consecutive,
statutory-maximum prison terms of 360 months on each count, to follow an undischarged
240-month term imposed by the same judge in 2006, after McGowan’s guilty plea to
attempted receipt of child pornography. See 18 U.S.C. § 2252A(a)(2)(A). On appeal,
McGowan argues that (1) his sentence is both procedurally and substantively
unreasonable, (2) counsel provided ineffective assistance by failing to seek a three-level
reduction of his Guidelines offense level for acceptance of responsibility, and (3) the case
should be remanded to a different judge for resentencing. We assume the parties’
familiarity with the facts and the record of prior proceedings, which we reference only as
necessary to explain our decision to affirm.
1. Reasonableness Challenge to Sentence
We review a challenged sentence for “‘reasonableness,’ ‘a particularly deferential
form of abuse-of-discretion review’ that we apply both to the procedures used to arrive at
the sentence (procedural reasonableness) and to the length of the sentence (substantive
reasonableness).” United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)
(quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)).
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a. Procedural Reasonableness
McGowan argues that the district court committed procedural error by failing to
(1) calculate his Guidelines range correctly; (2) rule on a specific concurrency
application; (3) consider all the 18 U.S.C. § 3553(a) factors, including the parsimony
clause; and (4) explain the reasons for its sentence. Because McGowan raised none of
these issues to the district court, we review for plain error, see United States v.
Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007), a standard requiring (1) error, (2) that is
clear or obvious, (3) affecting substantial rights, and (4) calling into question the fairness,
integrity, or public reputation of judicial proceedings, see United States v. Marcus, 560
U.S. 258, 262 (2010). We identify no such error.
First, the Government concedes Guidelines calculation error insofar as the district
court identified a Guidelines “range” of life imprisonment, which was greater than the
90-year statutory maximum. See United States v. Dorvee, 616 F.3d 174, 180–81 (2d
Cir. 2010); see also U.S.S.G. § 5G1.2(d). But given that McGowan was 40 years old
when sentenced, he cannot show that the error affected either his substantial rights or the
fairness and public reputation of judicial proceedings. See United States v. Marcus, 560
U.S. at 262 (stating that error must be “prejudicial” to affect substantial rights, meaning
“there must be a reasonable probability that the error affected the outcome” of the
proceeding); see also id. at 266.1
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We have already made this point summarily in other cases presenting similar
procedural error. See, e.g., United States v. Ketcham, 507 F. App’x 42, 44 (2d Cir.
2013) (summary order).
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Second, in exercising its discretion to impose a sentence “concurrently, partially
concurrently, or consecutively,” U.S.S.G. § 5G1.3(d), a district judge is under no
obligation to make individualized findings. See United States v. Velasquez, 136 F.3d
921, 924 (2d Cir. 1998); United States v. Margiotti, 85 F.3d 100, 105 (2d Cir. 1996).
Moreover, “we never have required a District Court to make specific responses to points
argued by counsel in connection with sentencing.” United States v. Wagner-Dano, 679
F.3d 83, 89 (2d Cir. 2012). Thus, we identify no error in the district court’s imposition
of consecutive sentences without specifically ruling on a request for concurrency. In
any event, McGowan does not explain how the district court erred in its application of
U.S.S.G. § 5G1.3(d), or how any such error affected his substantial rights. He thus fails
to demonstrate plain error.
Third, McGowan’s claims that the district court failed to consider § 3553(a)
factors or to explain its sentence are belied by the record. It shows that the district court
expressly stated that it had “taken into account all of the submissions, [the] comments
made here today, and particularly the 3553 factors,” and that the sentence imposed was
necessary “to afford adequate punishment for the crimes committed,” general deterrence
to the public, and specific deterrence to McGowan, “who . . . despite his protestations to
the contrary . . . has shown no inclination to no longer engage in this type of behavior.”
App. 216; see id. (further noting that sentence afforded protection “from further crimes
by this defendant”). Even if the district court “might have said more,” Rita v. United
States, 551 U.S. 338, 359 (2007), its statements sufficed under our precedent, see, e.g.,
United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (presuming, in “absence of
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record evidence suggesting otherwise, that a sentencing judge has faithfully discharged
her duty to consider the statutory factors . . . , and we will not conclude that a district
judge shirked her obligation to consider the § 3553(a) factors simply because she did not
discuss each one individually or did not expressly parse or address every argument
relating to those factors that the defendant advanced.”); see also United States v.
Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006) (requiring clear showing of district
court’s belief that “lower sentence would be equally effective in advancing the purposes
set forth in § 3553(a)(2)” before holding sentence invalid under parsimony clause).
Accordingly, we identify no plain error in the procedures used to arrive at the
challenged sentence.
b. Substantive Reasonableness
McGowan argues that his 90-year sentence is substantively unreasonable because
other child sex offenders—whom McGowan characterizes as “significantly
worse”—have received lower sentences. Appellant’s Br. 37. Where, as here, the
district court explicitly considered such an argument in imposing sentence, we will not
second guess the weight it assigns to it “as long as the sentence ultimately imposed is
reasonable in light of all the circumstances presented.” United States v. Fernandez, 443
F.3d at 32 (recognizing that “weight to be afforded any given argument made pursuant to
one of the § 3553(a) factors is a matter firmly committed to the discretion of the
sentencing judge” and generally is beyond appellate review); see United States v. Cavera,
550 F.3d at 189 (stating that district court’s substantive sentencing determination will be
set aside only in exceptional cases where the trial court’s decision “cannot be located
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within the range of permissible decisions” (internal quotation marks omitted)); United
States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing that broad range of
sentences can be reasonable in particular case). Here, the record reveals that McGowan,
a former federal air marshal, himself sexually abused three minor children between the
ages of 10 and 13; recorded and retained dozens of images of that abuse; amassed a
collection of more than 1,000 additional images of child pornography, including images
of children as young as 5; and, from prison, solicited victims’ assistance in destroying
evidence of these crimes and in securing a victim’s recantation of statements inculpating
McGowan in child sexual abuse. Under these circumstances, we cannot conclude that
the challenged sentence was so shocking as to be “unsupportable as a matter of law.”
United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Accordingly, McGowan’s
challenge to the reasonableness of his sentence fails on the merits.
2. Ineffective Assistance of Counsel
McGowan faults his counsel for failing to seek a mitigation adjustment of his
offense level for acceptance of responsibility. Although we generally prefer that
ineffective assistance claims be raised under 28 U.S.C. § 2255, see Massaro v. United
States, 538 U.S. 500, 504 (2003), we conclude that McGowan’s claim is properly
addressed on direct appeal because no development of the record is necessary to conclude
that the alleged omission fails to satisfy the prejudice requirement of Strickland v.
Washington, 466 U.S. 668, 690, 694 (1984). See United States v. Wellington, 417 F.3d
284, 288 (2d Cir. 2005) (denying ineffective assistance claim on direct review). As
already noted, McGowan endeavored to obstruct justice, see U.S.S.G. § 3C1.1 cmt. n.4,
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conduct precluding acceptance of responsibility credit in the absence of “extraordinary”
circumstances, U.S.S.G. § 3E1.1 cmt. n.4. McGowan having failed to demonstrate such
circumstances here, we reject his ineffective assistance claim as meritless.
3. Conclusion
We have considered McGowan’s remaining arguments, and we conclude that they
are without merit. 2 Accordingly, the judgment of conviction and sentence is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
2
Because we affirm the challenged sentence, McGowan’s request that his case be
transferred to a different district judge on remand is moot.
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