10-5015-cr
USA v. Gouse
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.
Present:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-5015-cr
SHAWN R. GOUSE
Defendant-Appellant.
________________________________________________
For Defendant-Appellant: Georgia J. Hinde, New York, N.Y.
*
The Honorable John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
For Appellee: Lisa M. Fletcher, Assistant United States Attorney, for Richard
S. Hartunian, United States Attorney for the Northern District
of New York.
Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Shawn Gouse appeals from a December 2, 2010 judgment of
conviction entered by the United States District Court for the Northern District of New York
(Suddaby, J.), convicting him, following a guilty plea, of receiving, distributing, and possessing
child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & 2252A(a)(5)(B). The district
court principally sentenced the defendant to 120 months’ imprisonment. On appeal, Gouse first
contends that the district court committed procedural error by failing to recognize its authority to
depart from the advisory child pornography Guidelines based on a policy disagreement. He also
contends that his sentence is substantively unreasonable in light of the nature and circumstances
of his offense, his own personal history and characteristics, and the fact that similarly situated
defendants received lower sentences. Finally, Gouse challenges the district court’s imposition of
a 25-year term of supervised release. We presume the parties’ familiarity with the facts and
procedural history of this case.
We review a district court’s sentence for “reasonableness, which is ‘akin to review for
abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds
of allowable discretion, committed an error of law in the course of exercising discretion, or made
a clearly erroneous finding of fact.’” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011)
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(per curiam) (quoting United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007)). A district
court commits “procedural error where it fails to calculate the Guidelines range (unless omission
of the calculation is justified),” “makes a mistake in its Guidelines calculation,” “treats the
Guidelines as mandatory,” “does not consider the § 3553(a) factors,” “rests its sentence on a
clearly erroneous finding of fact,” or “fails adequately to explain its chosen sentence.” United
States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Where the Court determines that
there was no procedural error in a district court’s sentencing, it “then considers the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard, taking into
account the totality of the circumstances.” United States v. Rigas, 583 F.3d 108, 121 (2d Cir.
2009) (internal quotation marks omitted). Although we do not presume that a sentence within
the Guidelines range is reasonable, United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010), a
district court’s substantive findings will be set aside only “in exceptional cases where the trial
court’s decision cannot be located within the range of permissible decisions.” Cavera, 550 F.3d
at 189 (internal quotation marks omitted).
We first address the defendant’s contention that the district court committed procedural
error by failing to recognize its authority to depart from the Guidelines based on a policy
disagreement. In United States v. Tutty, 612 F.3d 128 (2d Cir. 2010), we held that a district court
may “consider . . . broad, policy-based challenge[s] to the child pornography Guidelines” and
may deviate from the Guidelines “based solely on a policy disagreement, even where the
disagreement applies to a wide class of offenders or offenses.” Id. at 131. Of course, while the
district court may depart from the Guidelines based on a policy agreement, the district court may
also determine that the Guidelines range is appropriate in a particular case. Here, in assessing
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whether the child pornography Guidelines were appropriate, the district court noted that “as a
judge, I don’t sit here and make that judgment. The law is the law and certainly it’s one of the
factors that I have to consider.” App. 63-64. However, the district court also clearly
acknowledged that the child pornography Guidelines are “advisory,” and went on to suggest that
it agreed with the Guidelines because “each one of these children are victims and scarred for life,
much worse than any damage that you may have received during your childhood as a result of
the activity that goes on because people are looking at it.” Id. Given that we generally presume
that “the district court knew and applied the law correctly,” United States v. Fernandez, 443 F.3d
19, 30 (2d Cir. 2006) (internal quotation marks omitted), the district court’s statement that the
child pornography Guidelines seek to protect vulnerable children, coupled with its statement that
it understood that the Guidelines are advisory, indicates that the district court, knowing that it
could deviate from the Guidelines based on a policy disagreement, chose not to. Accordingly,
we conclude that the district court did not commit procedural error.
Having concluded that the defendant’s sentence is procedurally reasonable, we turn to
whether the sentence is substantively reasonable. Gouse principally argues that his sentence is
unreasonable because it is greater than the sentences that other defendants have received for
similar offenses. While Gouse has identified some cases where defendants convicted of similar
crimes received a lower sentence than he did, the government has identified cases where
defendants convicted of similar crimes received an equal or higher sentence than Gouse did. As
we have previously observed, “some departures from uniformity are a necessary cost of the
Booker remedy.” Cavera, 550 F.3d at 193 (internal quotation marks and brackets omitted).
“[O]nce we are sure that the sentence resulted from the reasoned exercise of discretion, we must
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defer heavily to the expertise of district judges.” Id. Here, we cannot conclude that the fact that
there are some disparities between Gouse’s sentence and the sentences of other similarly situated
defendants around the country makes Gouse’s sentence substantively unreasonable.
Gouse further argues that the nature of his offense as well as his personal characteristics
warrant a lower sentence. He notes that he is a low-level offender with no prior criminal history
other than a few prior convictions related to his alcoholism. He also emphasizes that his offense
was limited to downloading and retaining prohibited images, and that he never engaged in any
inappropriate physical conduct with a child. Even if some of these factors militate in the
defendant’s favor, the district court properly considered all of the points Gouse now raises and
decided to impose a below-Guidelines sentence. Notwithstanding Gouse’s arguments, the
district court concluded that a 120-month sentence was warranted given the seriousness of
Gouse’s crimes. The district court observed that, contrary to Gouse’s contention, his crimes are
not “victimless” because they “creat[e] a market” for child pornography and thus harm children,
“scarr[ing] [them] for life.” App. 63-64. In evaluating the substantive reasonableness of a
particular sentence, “we do not consider what weight we would ourselves have given a particular
factor. Rather, we consider whether the factor, as explained by the district court, can bear the
weight assigned it under the totality of circumstances in the case.” Cavera, 550 F.3d at 191
(internal citation omitted). Accordingly, we conclude that the defendant’s below-Guidelines
sentence falls “within the range of permissible decisions,” id. at 189 (internal quotation marks
omitted), and thus reject the defendant’s challenge to the substantive reasonableness of his
sentence.
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We finally address Gouse’s argument that the district court erred in imposing a 25-year
term of supervised release. Gouse argues that this lengthy term of supervision is unwarranted
because he “poses such a low risk of recidivism.” Appellant Br. 38. However, in light of the
fact that Gouse admitted to being addicted to child pornography, we do not find that the district
court abused its discretion in sentencing Gouse to a 25-year term of supervised release,
especially given that the Guidelines recommend a lifetime term of supervised release. See U.S.
Sentencing Guidelines Manual § 5D1.2(b).
We have considered all of the defendant’s remaining arguments and find them to be
without merit. Accordingly, for the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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