09-3546-cr
USA v. Swackhammer
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 .
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 30 th day of November, two thousand and ten.
5
6 PRESENT: WILFRED FEINBERG,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 09-3546-cr
18
19 MARK SWACKHAMMER,
20
21 Defendant-Appellant.
22
23
24 FOR APPELLANT: MARJORIE M. SMITH, Law Office of Marjorie
25 M. Smith, Piermont, NY.
26
27 FOR APPELLEE: PAUL D. SILVER, Assistant United States
28 Attorney, (Miroslav Lovric, Assistant
29 United States Attorney, on the brief),
30 for Richard S. Hartunian, United States
31 Attorney for the Northern District of New
32 York, Albany, NY.
33
1 Appeal from the United States District Court for the
2 Northern District of New York (McAvoy, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the District Court be
6 AFFIRMED.
7 Mark Swackhammer (“Appellant”) appeals from a judgment
8 of the United States District Court for the Northern
9 District of New York (McAvoy, J.), entered on August 19,
10 2009, following a guilty plea and sentencing him to 168
11 months imprisonment. We assume the parties’ familiarity
12 with the underlying facts, the procedural history, and the
13 issues presented for review.
14 We review the sentence imposed by the District Court
15 for both substantive and procedural reasonableness. United
16 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
17 banc). “Reasonableness review is akin to review for abuse
18 of discretion, under which we consider whether the
19 sentencing judge exceeded the bounds of allowable
20 discretion, committed an error of law in the course of
21 exercising discretion, or made a clearly erroneous finding
22 of fact.” United States v. Williams, 475 F.3d 468, 474 (2d
23 Cir. 2007) (internal quotation marks and alterations
24 omitted).
2
1 Appellant argues that his sentence was procedurally
2 unreasonable because the District Court did not reduce
3 Appellant’s offense level pursuant to U.S.S.G. § 2G2.2(b)(1)
4 and did not discuss U.S.S.G. § 5K2.16. Appellant did not
5 qualify for a § 2G2.2(b)(1) reduction because his conduct
6 was not limited to receipt and solicitation and, based on
7 his use of file-sharing software, Appellant did not show
8 that he “did not intend to traffic in, or distribute” child
9 pornography. As for U.S.S.G. § 5K2.16, the District Court’s
10 failure to discuss this provision was not error, especially
11 given the court’s clear acknowledgment of its authority to
12 reduce Appellant’s sentence. See United States v. Sero, 520
13 F.3d 187, 192 (2d Cir. 2008).
14 Appellant also argues that his sentence was
15 substantively unreasonable because the District Court
16 allegedly failed to consider that the Sentencing Guidelines
17 do not provide empirical support for the length of sentences
18 in child pornography cases. Appellant’s argument is
19 premised on a significant over-reading of our holding in
20 United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). To
21 reverse simply because the District Court did not conduct an
22 empirical analysis of the statistical support underlying the
3
1 Sentencing Guidelines would reach far beyond the scope of
2 our substantive reasonableness review. See United States v.
3 Rigas, 583 F.3d 108, 122-23 (2d Cir. 2009). Further, Dorvee
4 is clearly distinguishable from this case because
5 Appellant’s sentence was not near or exceeding the statutory
6 maximum. Further, unlike in Dorvee, Appellant’s criminal
7 conduct was not limited to possession of child pornography
8 alone; Appellant repeatedly molested his children. Given
9 these circumstances, we conclude that the sentence was not
10 substantively unreasonable.
11 Appellant also urges the Court to vacate his sentence
12 because the District Court erroneously presumed that a
13 guideline sentence was a reasonable sentence. See Nelson v.
14 United States, 555 U.S. ---, 129 S. Ct. 890, 892 (2009) (per
15 curium); United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
16 2008) (en banc); United States v. Jones, 531 F.3d 163, 170
17 (2d Cir. 2008). In support of this argument, Appellant
18 direct the Court to an excerpt from the sentencing colloquy
19 in which the District Court observed that “unless I can
20 articulate on the record some good cogent reason why the
21 Court should sentence the defendant outside the guidelines,
22 then I’m probably going to sentence him within the
4
1 guidelines.”
2 This stray utterance cannot bear the weight Appellant
3 seeks to place on it. To the contrary, “[w]e have held that
4 a single statement by a sentencing judge that, standing
5 alone, might be interpreted as a misapprehension that a
6 Guideline sentence should presumptively be imposed . . .
7 [can]not overcome the clear indication in the record that
8 the Court was well aware of its authority to impose a non-
9 Guideline sentence.” United States v. Orozco Mendez, 371 F.
10 App’x 159, 160 (2d Cir. 2010) (citing United States v.
11 Fernandez, 443 F.3d 19, 33 (2d Cir. 2006)) (brackets in
12 original). Here, a review of the complete transcript of the
13 sentencing hearing reveals that the District Court correctly
14 treated the guidelines as merely advisory in arriving at
15 Appellant’s sentence.
16 Finally, Appellant raises a Sixth Amendment challenge,
17 contending that his counsel below was ineffective because
18 his counsel failed to raise the sentencing arguments now
19 before us on appeal. We decline to adjudicate Appellant’s
20 claim for ineffective assistance of counsel on this direct
21 appeal. Appellant may raise his Sixth Amendment claim in
22 the district court by petition under § 2255. See Massaro v.
5
1 United States, 538 U.S. 500, 504-05 (2003) (noting the
2 benefits of deciding ineffective-assistance claims through
3 § 2255 proceedings instead of on direct appeal).
4 We have considered Appellant’s remaining arguments and
5 find them to be without merit. For the foregoing reasons,
6 the judgment of the District Court is hereby AFFIRMED.
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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6