11-3859-cr
United States v. Shay
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
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 28th day of June, two thousand twelve.
PRESENT: RALPH K. WINTER,
CHESTER J. STRAUB,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 11-3859-cr
JOSEPH MARK SHAY,
Defendant-Appellant.
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FOR APPELLEE: BRENDA K. SANNES, Assistant United
States Attorney (Elizabeth A.
Horsman, Assistant United States
Attorney, on the brief), for
Richard S. Hartunian, United States
Attorney for the Northern District
of New York, Syracuse, New York.
FOR DEFENDANT-APPELLANT: MOLLY K. CORBETT, Assistant Federal
Public Defender (Timothy Austin,
Assistant Federal Public Defender
on the brief), for Lisa Peebles,
Acting Federal Public Defender for
the Northern District of New York,
Albany, New York.
Appeal from a judgment of the United States District
Court for the Northern District of New York (Sharpe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
On August 12, 2009, defendant-appellant Joseph Mark
Shay pled guilty to one count of distribution of child
pornography and one count of receipt of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2) and (a)(5)(B). On February
24, 2010, the district court sentenced Shay to 210 months'
imprisonment on each count, to run concurrently, and a lifetime
term of supervised release. Shay appealed the district court's
February 24, 2010, judgment. On April 6, 2011, this Court
vacated the district court's judgment and remanded for further
consideration in light of United States v. Dorvee, 616 F.3d 174
(2d Cir. 2010). On August 24, 2011, on remand, the district
court resentenced Shay to the same sentence. Shay appealed,
contending that the district court's second sentence was
procedurally and substantively unreasonable.
We assume the parties' familiarity with the underlying
facts, the procedural history, and the issues presented for
review.
Upon reviewing the district court's sentence under a
"deferential" abuse of discretion standard, we conclude that the
district court's sentence survives appellate scrutiny because it
was procedurally and substantively reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007).
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First, the district court's sentence was procedurally
reasonable because no significant procedural error was committed.
Id. At resentencing, the district court adequately explained its
chosen sentence, discussing: Dorvee, the child pornography
guidelines, the 18 U.S.C. § 3553(a) factors, the substantial
length of time over which Shay committed the offenses, the volume
of child pornography involved, the victim statements, and the
public harm caused by Shay's conduct. See Gall, 552 U.S. at 51.
Second, the district court's sentence was substantively
reasonable because, taking into account the "totality of
circumstances," id., the sentence fell within the range of
permissible decisions, see United States v. Cavera, 550 F.3d 180,
189 (2d Cir. 2008) (en banc). Indeed, during the course of
twelve years, Shay collected over 41,000 images and 372 video
files of child pornography, including images portraying the
sadistic abuse of children.
We have considered Shay's remaining arguments and find
them to be without merit. Accordingly, we hereby AFFIRM the
judgment of the district court.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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