17‐1852
United States v. Jeffrey Butler
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 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 9th day of May, two thousand eighteen.
PRESENT: JOHN M. WALKER, JR.,
DENNIS JACOBS,
Circuit Judges,
MICHAEL P. SHEA,
District Judge.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,
Appellee,
‐v.‐ 17‐1852
JEFFREY BUTLER,
* Judge Michael P. Shea, District Court Judge of the United States District Court
for the District of Connecticut, sitting by designation.
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Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: Melissa A. Tuohey, Assistant Federal
Public Defender, for Lisa A. Peebles,
Federal Public Defender, Office of the
Federal Public Defender, Syracuse,
NY.
FOR APPELLEE: Rajit S. Dosanjh, Assistant United
States Attorney, for Grant C. Jaquith,
United States Attorney for the
Northern District of New York,
Syracuse, NY.
Appeal from a final judgment and sentence of the United States District
Court for the Northern District of New York (D’Agostino, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment and sentence of the district
court be AFFIRMED.
Defendant‐appellant Jeffrey Butler appeals from a June 5, 2017 final
judgment of the United States District Court for the Northern District of New
York, convicting Butler of receipt and possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1), and (b)(2), and
2256(8)(A), and sentencing him, principally, to eighty‐seven months
imprisonment. Butler argues on appeal that his sentence is substantively
unreasonable because, inter alia, he never physically touched a minor, and he
engaged in the offense conduct for less than a year. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues
presented for review.
“In examining the substantive reasonableness of a sentence, we review the
length of the sentence imposed to determine whether it cannot be located within
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the range of permissible decisions.” United States v. Matta, 777 F.3d 116, 124 (2d
Cir. 2015) (internal quotation marks omitted); see also United States v. Villafuerte,
502 F.3d 204, 206 (2d Cir. 2007) (“Substantive reasonableness involves [assessing]
the length of the sentence imposed in light of the factors enumerated under 18
U.S.C. § 3553(a).”).1 “[O]ur substantive review of a sentence is akin to review
under an ‘abuse‐of‐discretion’ standard.” United States v. Park, 758 F.3d 193,
199 (2d Cir.2014). Thus, the reviewing court must “take into account the totality
of the circumstances, giving due deference to the sentencing judge’s exercise of
discretion, and bearing in mind the institutional advantages of district courts,”
and we will “set aside a district courtʹs substantive determination only in
exceptional cases.” United States v. Cavera, 550 F.3d 180, 189‐190 (2d Cir. 2008)
(internal quotation marks omitted). In “the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” United States v.
Perez‐Frias, 636 F.3d 39, 43 (2d Cir. 2011) (internal quotation marks omitted).
Butler argues that the district court’s reliance on two factors‐‐the need to
provide just punishment for the offense and the need to protect the public‐‐fails to
consider additional mitigating factors pertaining to “the nature and
circumstances of the offense and the history and characteristics of the defendant.”
18 U.S.C. § 3553(a). In particular, Butler emphasizes that he never physically
touched a child, he engaged in the conduct for under a year, and suffers from
serious mental health and substance abuse issues. Butler also argues that his
sentence fails to account for the unreasonable results created by
“all‐but‐inherent” sentencing enhancements under U.S.S.G. § 2G2.2. United
States v. Jenkins, 854 F.3d 181, 189 (2d Cir. 2017). Accordingly, Butler argues that
he should be sentenced to a term of imprisonment no greater than the statutory
minimum of sixty months.
None of Butler’s arguments are meritorious, and they clash with the record.
First, the district court properly weighed all of the 18 U.S.C. § 3553(a) sentencing
factors, including express consideration of Butler’s personal characteristics and
history.
1 Butler does not contend that his sentence is procedurally unreasonable.
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Second, while Butler attempts to downplay the serious nature of his crimes,
he collected and shared a large number of child pornography videos on
peer‐to‐peer networks, including some videos that are extremely violent and
sadistic. See United States v. Aumais, 656 F.3d 147, 157 (2d Cir. 2011) (finding
the district court’s sentence “‘sufficient, but not greater than necessary’ to comply
with the purposes of § 3553(a) . . . given the violent nature of the images, the
number of them, and other considerations” (internal citation omitted)).
Additionally, while on supervised release following his arrest for the crimes at
issue here, Butler violated the terms of release by possessing, without
authorization, a flash drive, internet‐capable phone, and a laptop computer, and
most troubling, Butler engaged in internet chats with a girl he believed to be a
minor.
Third, Butler does not demonstrate acceptance of responsibility for his
crimes. Butler stated in his pre‐sentence interview that he “did not know the
specifics that were on the videos” and that he did not use specific search terms to
seek out child pornography. Pre‐Sentence Report ¶ 21. Contrary to these
assertions, the record demonstrates that Butler admitted to using search terms
specifically associated with child pornography; he possessed more child
pornography than adult pornography; that (as far back as 2012) his previous wife
confronted him for “watching pornography depicting young girls,”
Presentencing Report at ¶¶ 18, 50; and his girlfriend saw files on an old laptop
marked “preteen,” id. ¶ 18; see United States v. Broxmeyer, 699 F.3d 265, 295 (2d
Cir. 2012) (finding that the defendant’s “lack of remorse for, or even appreciation
of, the seriousness of the totality of his conduct . . . expanded the range of
substantively reasonable sentences to allow the district court to afford adequate
specific deterrence and protection of the public”).
Butler relies on our precedent in Jenkins, 854 F.3d 181 and United States v.
Dorvee, 616 F.3d 174 (2d Cir. 2010), to support his argument that his sentence was
greater than necessary to serve the purposes of sentencing. However, these
cases are largely inapposite. Butler’s sentence of 87 months is only 27 months
above the mandatory minimum for Count One, and 153 months below the
statutory maximum, whereas in Jenkins and Dorvee, the sentences imposed were
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either just below or at the statutory maximum. See Aumais, 656 F.3d at 157
(distinguishing the defendant’s sentence as being “well short of the statutory
maximum” from the sentence in Dorvee). Further, in contrast to Jenkins, Butler
used peer‐to‐peer file sharing services, and contacted a girl he believed to be a
minor while on supervised release. See Jenkins, 854 F.3d at 190 (“In particular,
the government did not claim he used peer‐to‐peer sharing software, distributed
images, or participated in chat rooms devoted to child pornography. Nor does
the government allege that he contacted or attempted to contact a child or that he
engaged in any ‘sexually dangerous behavior’ separate from his crimes of
conviction.”).
Butler’s sentence is substantively reasonable. Accordingly, the final
judgment and sentence of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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