11-662-cr
United States v. Forbes
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29th day of March, two thousand twelve.
PRESENT: REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges,
KIYO A. MATSUMOTO,
District Judge.*
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UNITED STATES OF AMERICA
Appellee,
v. No. 11-662-cr
JASON FORBES,
Defendant-Appellant,
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FOR APPELLANT: Darrell B. Fields, Appeals Bureau, Federal Defenders of New
York, Inc., New York, New York.
FOR APPELLEE: Michael D. Lockard, Andrew L. Fish, Assistant United States
Attorneys, for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New York.
*
The Honorable Kiyo A. Matsumoto of the United States District Court for the
Eastern District of New York, sitting by designation.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Denise L. Cote, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on February 7, 2011, is AFFIRMED.
Defendant Jason Forbes challenges as substantively unreasonable his 60-month prison
sentence on a single count of possession of child pornography, see 18 U.S.C.
§ 2252A(a)(5)(B), which prison term was imposed on resentencing following Forbes’s
violation of the probationary sentence originally imposed. On reasonableness review of a
challenged sentence, we apply a “deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007); accord United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (en banc). That standard recognizes that reasonableness “is inherently a concept of
flexible meaning, generally lacking precise boundaries.” United States v. Verkhoglyad, 516
F.3d 122, 134 (2d Cir. 2008) (quoting United States v. Crosby, 397 F.3d 103, 115 (2d Cir.
2005)). Thus, “in the great majority of cases, a range of sentences . . . must be considered
reasonable,” United States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008), and we will “set aside
a district court’s substantive determination” as to an appropriate sentence “only in
exceptional cases where the trial court’s decision cannot be located within the range of
permissible decisions,” United States v. Cavera, 550 F.3d at 189 (emphasis in original,
internal quotation marks omitted). In applying these principles here, we assume the parties’
familiarity with the underlying facts and the record of prior proceedings, which we reference
only as necessary to explain our decision to affirm.
2
Forbes maintains that his 60-month prison sentence is substantively unreasonable
because it greatly exceeds the advisory Guidelines range of three to nine months’
imprisonment for Grade C probation violations. See U.S.S.G. § 7B1.4(a). This argument
ignores the commentary to § 7B1.4, which recognizes that a higher sentence may be
warranted where the original probationary sentence was below the originally applicable
Guidelines range. See U.S.S.G. § 7B1.4 cmt. n.4. That is this case. Forbes’s Guidelines
range for his child pornography crime was 78 to 97 months’ imprisonment and, in his plea
agreement, Forbes agreed that a sentence within that range would be reasonable, and waived
any right to appeal if sentenced within that range. When probation is revoked in these
circumstances, “a resentence that falls within the range for the underlying crime of
conviction will rarely qualify as too severe to be substantively reasonable.” United States
v. Verkhoglyad, 516 F.3d at 135; see also id. at 130 n.6 (recognizing that, upon revocation,
defendant is not sentenced for probation violation, but is resentenced on crime of conviction).
The same conclusion necessarily follows for a resentence that falls below the originally
applicable Guidelines range.
In urging otherwise, Forbes relies on two cases. The first, United States v. Sindima,
488 F.3d 81 (2d Cir. 2007), is distinguishable in that the Sindima defendant’s original
probationary sentence was within, rather than below, his original Guidelines range.1 See id.
1
Sindima was also decided before this court’s en banc decision in Cavera. Thus, to
the extent Forbes cites it in support of the stricter appellate review of non-Guidelines
sentences that this court had employed before Cavera, it is, of course, the Cavera standard,
informed by the United States Supreme Court’s decisions in Gall v. United States, 522 U.S.
38 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007), that controls this appeal.
See United States v. Cavera, 550 F.3d at 188–89.
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at 82. In the second case, United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), we signaled
caution in applying the child-pornography Guidelines because of the possibility that they
could “lead to unreasonable sentences that are inconsistent with what § 3553 requires.” Id.
at 184. Such a concern was apparent in Dorvee where the defendant’s Guidelines range of
262 to 327 months’ imprisonment well exceeded the 20-year statutory maximum for the
crimes of conviction. See id. at 176–77. Here, Forbes’s Guidelines range of 78 to 97
months’ imprisonment is well below the 10-year statutory maximum for his crime, and the
challenged 60-month sentence is half the statutory maximum. Moreover, the district court
did not here follow the child pornography Guidelines; it specifically sentenced below them.
The challenged 60-month sentence also finds ample support in the record, as
explained by the district court. Specifically, the record shows that within months of his
original sentencing, Forbes failed to comply with required therapy sessions; lied to his
probation officer about taking inappropriate photographs of unsuspecting women in public;
and sought to distort the results of a required polygraphic examination. Alerted to this
conduct, the district court advised Forbes that if she had known “at the time of sentence what
I know today, I would not have put you on probation. I would have sent you to prison.” Tr.
Oct. 4, 2010, at 3. Nevertheless, the district court did not request that violation proceedings
be initiated. After confirming that Forbes understood the seriousness of his failure to comply
with probation requirements, it afforded him “a second chance.” Id.
4
Before the end of the month, Forbes demonstrated an inability or unwillingness to
avail himself of this second chance. Although Forbes’s probation officer urged him to ensure
that he no longer possessed any items that might violate his probation conditions, during a
home visit on October 15, 2010, the probation officer discovered various papers and
electronic items raising concerns. Further, Forbes initially lied about his possession of
several electronic devices, laptop computers, and computer accessories.
After summarizing the totality of these circumstances at resentencing, and noting a
sex offender evaluation indicating Forbes’s “sexual interest in prepubescent females,”
“cognitive distortions with respect to child sexual abuse,” and “risk of engaging in a variety
of illegal behaviors,” the district court concluded that “there is a very significant goal of
individual deterrence that is at issue here besides appropriate punishment.” Tr. Feb. 7, 2011,
at 8–9. This defeats any suggestion by Forbes that the district court failed to provide
adequate reasons for the challenged sentence. These factors are properly considered at
sentencing, see 18 U.S.C. § 3553(a)(2)(A)–(C); United States v. Cavera, 550 F.3d at 188, and
can easily bear the weight assigned to them by the district court in this case, see United States
v. Cavera, 550 F.3d at 191. To the extent Forbes complains that the district court failed to
consider mitigating circumstances relating to his personal characteristics and lack of criminal
history, we do not require a district court specifically to reference each § 3553(a) factor to
demonstrate consideration. See id. at 193. In any event, the record shows that the district
court considered these mitigating circumstances when it first sentenced Forbes to probation
and again on resentencing.
5
Accordingly, we reject Forbes’s reasonableness challenge to his sentence as without
merit. We have considered Forbes’s remaining arguments and conclude that they, too, are
without merit. The judgment of the district court is therefore AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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