United States v. Bowman , 523 F. App'x 767 ( 2013 )

12-2302
United States v. Bowman
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 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of April, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17
18 v. 12-2302
19
20 JOSEPH BOWMAN, AKA JOSEPH M.
21 BOWMAN,
22
23 Defendant-Appellant.
24 _____________________________________
25
26
27
1 FOR APPELLEE: LISA M. FLETCHER (Rajit S.
2 Dosanjh, Brenda K. Sannes, on
3 the brief) for Richard S.
4 Hartunian, United States
5 Attorney for the Northern
6 District of New York.
7
8 FOR DEFENDANT-APPELLANT: DEVIN McLAUGHLIN, Langrock
9 Sperry & Wool, LLP, Middlebury,
10 VT.
11
12 Appeal from a judgment of the United States District
13 Court for the Northern District of New York (Hurd, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment is AFFIRMED.
17
18 Defendant-appellant Joseph Bowman appeals from the
19 district court’s sentence of 276 months of incarceration for
20 his crimes associated with his transportation, receipt, and
21 possession of child pornography. We assume the parties’
22 familiarity with the underlying facts, the procedural
23 history of the case, and the issues on appeal.
24
25 1. Bowman argues that his sentence is substantively
26 unreasonable. This Court will “set aside a district court’s
27 substantive determination only in exceptional cases where
28 the trial court’s decision cannot be located within the
29 range of permissible decisions.” United States v. Cavera,
30 550 F.3d 180, 189 (2d Cir. 2008) (quotation omitted and
31 emphasis removed). The sentence must be “shockingly high,
32 shockingly low, or otherwise unsupportable as a matter of
33 law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
34 2009).
35
36 Bowman contends that his sentence is substantively
37 unreasonable because the Guidelines Section 2G2.2
38 enhancements inflated his sentence to a shocking extent. He
39 relies heavily upon United States v. Dorvee, 616 F.3d 17440 (2d Cir. 2010), in which a 240-month sentence for one count
41 of distribution of child pornography was found substantively
42 unreasonable. The Dorvee court attacked as “irrational[]”
43 Section 2G2.2 sentencing enhancements that “routinely result
44 in Guidelines projections near or exceeding the statutory
2
1 maximum, even in run-of-the-mill cases.” Id. at 186-87.
2 The enhancements increased Bowman’s sentence by more than
3 half over the statutory maximum for his underlying crimes.
4
5 Bowman’s reliance on Dorvee is misplaced. First,
6 Bowman had actually assaulted his daughter, resulting in a
7 five-level enhancement that is hardly controversial, and
8 that was not a factor in Dorvee. Second, the procedural
9 errors involved in Dorvee are not present here. Third (and
10 most importantly) the sentence in Dorvee was at the maximum
11 end of the Guidelines range. Id. at 184-85. Here, the
12 court specifically considered the relevant Section 3553
13 factors, as well as Dorvee’s critique of Section 2G2.2, and
14 granted a departure of seven years below the Guidelines
15 maximum. Under these circumstances, there can be little
16 doubt that the resulting sentence was “located within the
17 range of permissible decisions,” and was not substantively
18 unreasonable. See Cavera, 550 F.3d at 189 (quotation
19 omitted).
20
21 2. Bowman received consecutive sentences for
22 possession of child pornography under Section 2252
23 A(a)(5)(B) and for receipt of child pornography under
24 Section 2252 A(a)(2). He argues this constituted double
25 jeopardy because it is impossible to receive pornography
26 without also possessing it. When one offense is entirely
27 subsumed into the other, it is the “same offense” for double
28 jeopardy purposes. Ball v. United States, 470 U.S. 856,
29 861-64 (1985) (statutes directed at receipt and possession
30 of a firearm implicate double jeopardy, since proof of
31 receipt necessarily includes proof of possession).
32
33 A valid guilty plea constitutes a waiver of any double
34 jeopardy claims. United States v. Broce, 488 U.S. 563, 569
35 (1989). A small exception to that rule arises when charges
36 are facially duplicative of one another. Id. at 575. The
37 key question therefore is whether the receipt and possession
38 counts were duplicative at the time that Bowman entered his
39 plea.
40
41 They were not. During the hearing on Bowman’s change
42 of plea, the government drew the distinction that the
43 possession files were “exclusive of the two [that were]
44 previously described as being received via Limewire.” Hr’g
3
1 Tr. at 19, ECF No. 50. Both Bowman and his attorney agreed
2 with the government’s description. His argument was
3 therefore waived.
4
5 Moreover, Bowman failed to present this argument below
6 when he pled guilty. While “plain error that affects
7 substantial rights may be considered even though it was not
8 brought to the [lower] court’s attention,” Fed.R.Crim.P.
9 52(b), there was none here. There is no double jeopardy
10 problem where the receipt and possession counts of a
11 conviction were based upon different files. See United
12 States v. Irving, 554 F.3d 64, 79 (2d Cir. 2009) (“If the
13 jury’s verdicts on [receipt] and [possession] were based on
14 different images, there was no double jeopardy violation in
15 the entry of judgment on both counts.”).
16
17 We have considered all of Bowman’s remaining arguments
18 and find them to be without merit. Accordingly, the
19 judgment of the district court is hereby AFFIRMED.
20
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
4