United States v. Denis , 440 F. App'x 54 ( 2011 )

10-4978-cr
United States v. Denis
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
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13 United States of America,
14 Appellee,
15
16 -v.- 10-4978-cr
17
18 Timothy Denis,
19 Defendant-Appellant.
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21
22 FOR APPELLANT: Lisa Peebles, Federal Public
23 Defender, Syracuse, New York
24 (James P. Egan, Federal Public
25 Defender, Syracuse, NY, on the
26 brief)
27
28 FOR APPELLEE: Lisa M. Fletcher and Rajit S.
29 Dosanjh, Assistant United States
30 Attorneys, Of Counsel, Syracuse,
1
1 NY; for Richard S. Hartunian,
2 United States Attorney, Northern
3 District of New York, Syracuse,
4 NY)
5
6
7 Appeal from a judgment of the United States District
8 Court for the Northern District of New York (Hurd, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
11 AND DECREED that the District Court’s judgment is AFFIRMED.
12
13 Defendant-Appellant, Timothy T. Denis, pleaded guilty
14 to production of child pornography. He was sentenced to 262
15 months in prison, a lifetime term of supervision, and a
16 special assessment of $100. Denis appeals the length of his
17 term of supervision. We assume the parties’ familiarity
18 with the underlying facts, the procedural history of the
19 case, and the issues on appeal.
20 The Government argues that Denis has waived his right
21 to challenge the reasonableness of his term of supervised
22 release because he failed to object to it at the sentencing
23 proceeding. We have not yet decided whether an unpreserved
24 challenge to the substantive reasonableness of a sentence
25 constitutes a waiver of appellate review. See United States
26 v. Verkhoglyad, 516 F.3d 122, 134 (2d Cir. 2008). We need
2
1 not decide that question on this appeal, however, because
2 even under our ordinary standard of review, Denis cannot
3 demonstrate that the District Court abused its discretion in
4 imposing a life term of supervision. See Gall v. United
5 States, 552 U.S. 38, 41 (2007) (holding that appellate
6 courts must review sentences for reasonableness under the
7 “deferential abuse-of-discretion standard”); accord United
8 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
9 banc). Denis raises a substantive challenge to his
10 supervision, meaning that he must show that his sentence
11 falls outside the “broad range” of sentences “that can be
12 considered reasonable under the totality of the
13 circumstances” and in light of “due deference [afforded] to
14 the district court’s exercise of judgment.” United States
15 v. Jones, 531 F.3d 163, 174 (2d Cir. 2008); accord id. (“In
16 short, in determining substantive reasonableness, a
17 reviewing court will set aside only those outlier sentences
18 that reflect actual abuse of a district court’s considerable
19 sentencing discretion.”). Denis cannot sustain this burden,
20 given (1) the particular circumstances of his offense; (2)
21 the Sentencing Commission’s recommendation of a maximum term
22 of supervision for sex offenders, U.S. SENTENCING GUIDELINES
23 MANUAL § 5D1.2(b)(2) (Policy Statement); (3) the statutory
24 authority to impose lifetime terms of supervision for child
3
1 sex offenders in light of congressional findings that such
2 supervision is often necessary, 18 U.S.C. § 3583(k); H.R.
3 REP. NO. 108-66, at 49-50 (2003) (Conf. Rep.), reprinted in
4 2003 U.S.C.C.A.N. 684; (4) this Court’s authority upholding
5 such a term of supervision, see United States v. Hayes, 445
6 F.3d 536, 537 (2d Cir. 2006); and (5) the imposition of a
7 below-Guidelines term of incarceration in partial reliance
8 on lifetime supervision as a safeguard against recidivism.
9
10 We have considered all of Denis’s additional arguments
11 and find them to be without merit. Accordingly, the
12 judgment of the District Court is AFFIRMED.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
4