United States v. Bourque , 520 F. App'x 23 ( 2013 )

12-1295-cr
United States v. Bourque
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 ASUMMARY ORDER@). A PARTY CITING
TO 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 for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 5th day of April, two thousand thirteen.
4
5 PRESENT: BARRINGTON D. PARKER,
6 RAYMOND J. LOHIER, JR.,
7 SUSAN L. CARNEY,
8 Circuit Judges.
9 ------------------------------------------------------------------
10
11 UNITED STATES OF AMERICA,
12
13 Appellee,
14
15 v. No. 12-1295-cr
16
17 DAVID L. BOURQUE,
18
19 Defendant-Appellant.
20
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22 FOR APPELLANT: RICHARD ROY BROWN, Brown Paindiris & Scott, LLP,
23 Hartford, CT.
24
25 FOR APPELLEE: RAYMOND F. MILLER, Assistant United States Attorney
26 (Robert M. Spector, Assistant United States Attorney,
27 on the brief), for David B. Fein, United States Attorney
28 for the District of Connecticut, New Haven, CT.
1
1 Appeal from a judgment of the United States District Court for the District of
2 Connecticut (Alvin W. Thompson, Chief Judge).
3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
4 AND DECREED that the judgment of the District Court is AFFIRMED.
5 Defendant-Appellant David Bourque appeals from a sentence of 120 months’
6 incarceration and 120 months’ supervised release, imposed after he pleaded guilty
7 pursuant to a written plea agreement to receipt and distribution of child pornography.
8 Bourque argues that his sentence was substantively unreasonable because (1) the District
9 Court’s methodology was inconsistent with 18 U.S.C. § 3553 and our holding in United
10 States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), (2) the District Court improperly
11 compared Bourque’s case to ones involving simple possession, and (3) the District Court
12 failed to give appropriate weight to mitigating evidence. We assume the parties’
13 familiarity with the facts and record of the prior proceedings, to which we refer only as
14 necessary to explain our decision to affirm.
15 When reviewing a District Court’s sentence for substantive reasonableness, we
16 will reverse “only in exceptional cases where the trial court’s decision cannot be located
17 within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189
18 (2d Cir. 2008) (en banc) (quotation marks omitted). In Dorvee, we recognized that
19 United States Sentencing Guidelines § 2G2.2, which applies to Bourque’s offense, is an
20 “eccentric Guideline of highly unusual provenance which, unless carefully applied, can
21 easily generate unreasonable results.” 616 F.3d at 188. We therefore apply particular
22 scrutiny to sentences based on Guidelines § 2G2.2.
23 Although Bourque does not dispute that the District Court correctly calculated the
24 Guidelines range of 210 to 240 months’ imprisonment, he maintains that the District
25 Court improperly assumed that this was a reasonable starting point to use for calculating
26 the downward departure based on the Government’s motion pursuant to Sentencing
2
1 Guidelines § 5K1.1. Here, the District Court acknowledged our observation in Dorvee
2 that § 2G2.2 must be applied with great care. Id. at 188. After carefully reviewing each
3 sentencing enhancement, the District Court determined that each was applied
4 appropriately in Bourque’s case based on the nature of his conduct; it refrained from
5 automatically applying enhancements merely because they technically applied under the
6 Guidelines. For example, the District Court concluded that the enhancement for
7 possessing 600 or more images was applied appropriately because Bourque possessed an
8 “extraordinary” 22,282 images and 4,059 videos, and that the enhancement for possession
9 of material that portrays sadistic or masochistic conduct was appropriate because Bourque
10 had actively sought out videos depicting the rape of children. The District Court
11 conducted similarly careful analyses of each enhancement to ensure that Bourque’s
12 conduct truly merited the enhancements.
13 Thereafter, the District Court noted that there was “room for argument” about
14 whether the Guidelines range was appropriate based only on the base offense level and
15 enhancements. Nevertheless, it found that there were several aggravating factors that
16 were not accounted for in the Guidelines calculation. Specifically, the District Court
17 found that Bourque used knowledge gained from his law enforcement experience to avoid
18 detection and to help others avoid detection, and that he knew the horrific consequences
19 for children depicted in child pornography based on his experience as a police officer
20 investigating these very crimes. The District Court also pointed out that, in his capacity
21 as a law enforcement officer, Bourque had asked an FBI Special Agent questions about
22 the various difficulties the FBI had encountered in infiltrating the online platform
23 Bourque himself was using to trade child pornography, conduct the District Court
24 described as “nothing short of outrageous.”
25 On this record, we find no error where, after carefully considering the § 3553
26 factors, the applicability of various sentencing enhancements, and aggravating factors not
3
1 accounted for by any enhancement, the District Court concluded that the Guidelines
2 Range of 210 to 240 months was appropriate, and then applied a downward departure
3 based on the Government’s motion pursuant to Guidelines § 5K1.1, resulting in a non-
4 Guidelines sentence of 120 months’ imprisonment.
5 Bourque also argues that the District Court improperly compared his case to cases
6 involving mere possession, rather than receipt and distribution, of child pornography. We
7 reject the argument. The District Court’s discussion of four post-Dorvee child
8 pornography possession cases in which it had imposed sentence further evidenced the
9 District Court’s understanding of the enhanced scrutiny warranted for sentences based on
10 § 2G2.2. Indeed, in each of those cases, the District Court imposed non-Guidelines
11 sentences because it found that the enhancements in § 2G2.2 were not appropriate. By
12 contrast, the District Court explained that Bourque’s case is “well outside the heartland of
13 the cases involving first-time offenders who have been convicted of receipt and
14 distribution . . . because it involves . . . much more serious conduct and involves a much
15 higher degree of culpability.” The District Court’s comparison of Bourque’s case to these
16 prior cases was not error, because § 2G2.2 applies to both possession offenses and receipt
17 and distribution offenses, and the District Court’s explanation demonstrated that it
18 carefully considered the individual circumstances of Bourque’s case.
19 Finally, Bourque argues that the District Court did not give proper weight to his
20 mitigation evidence. We reject this argument as well. Rather than concluding that
21 Bourque’s 30-year career as a police officer was a mitigating factor, the District Court
22 regarded it as an “aggravating” factor because Bourque used his knowledge as an officer
23 to facilitate his crimes and because “as a law enforcement officer who had investigated”
24 child pornography offenses, Bourque, “more than the average citizen and more than the
25 typical offender, had an exposure to the horrific consequences for the long-lasting
26 physical and psychological harm to the children depicted in the[] images.” Moreover, the
4
1 District Court considered Dr. Lothstein’s report regarding Bourque’s post-traumatic stress
2 disorder and was “not satisfied that Dr. Lothstein has established a nexus between the
3 commission of the offense and the conditions that he identifies.”
4 “If the ultimate sentence is reasonable and the sentencing judge did not commit
5 procedural error in imposing that sentence, we will not second guess the weight (or lack
6 thereof) that the judge accorded to a given factor or to a specific argument made pursuant
7 to that factor.” United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006). We have no
8 reason to conclude that the District Court failed to give appropriate weight to Bourque’s
9 mitigating evidence.
10 We have considered Bourque’s remaining arguments and conclude that they are
11 without merit. For the foregoing reasons, the judgment of the District Court is
12 AFFIRMED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk of Court
15
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