United States v. Bowman

12-2302 United States v. Bowman 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 29th day of April, two thousand thirteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROSEMARY S. POOLER, 10 RICHARD C. WESLEY, 11 Circuit Judges. 12 _____________________________________ 13 14 UNITED STATES OF AMERICA, 15 16 Appellee, 17 18 v. 12-2302 19 20 JOSEPH BOWMAN, AKA JOSEPH M. 21 BOWMAN, 22 23 Defendant-Appellant. 24 _____________________________________ 25 26 27 1 FOR APPELLEE: LISA M. FLETCHER (Rajit S. 2 Dosanjh, Brenda K. Sannes, on 3 the brief) for Richard S. 4 Hartunian, United States 5 Attorney for the Northern 6 District of New York. 7 8 FOR DEFENDANT-APPELLANT: DEVIN McLAUGHLIN, Langrock 9 Sperry & Wool, LLP, Middlebury, 10 VT. 11 12 Appeal from a judgment of the United States District 13 Court for the Northern District of New York (Hurd, J.). 14 15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 16 AND DECREED that the judgment is AFFIRMED. 17 18 Defendant-appellant Joseph Bowman appeals from the 19 district court’s sentence of 276 months of incarceration for 20 his crimes associated with his transportation, receipt, and 21 possession of child pornography. We assume the parties’ 22 familiarity with the underlying facts, the procedural 23 history of the case, and the issues on appeal. 24 25 1. Bowman argues that his sentence is substantively 26 unreasonable. This Court will “set aside a district court’s 27 substantive determination only in exceptional cases where 28 the trial court’s decision cannot be located within the 29 range of permissible decisions.” United States v. Cavera, 30 550 F.3d 180, 189 (2d Cir. 2008) (quotation omitted and 31 emphasis removed). The sentence must be “shockingly high, 32 shockingly low, or otherwise unsupportable as a matter of 33 law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 34 2009). 35 36 Bowman contends that his sentence is substantively 37 unreasonable because the Guidelines Section 2G2.2 38 enhancements inflated his sentence to a shocking extent. He 39 relies heavily upon United States v. Dorvee, 616 F.3d 174 40 (2d Cir. 2010), in which a 240-month sentence for one count 41 of distribution of child pornography was found substantively 42 unreasonable. The Dorvee court attacked as “irrational[]” 43 Section 2G2.2 sentencing enhancements that “routinely result 44 in Guidelines projections near or exceeding the statutory 2 1 maximum, even in run-of-the-mill cases.” Id. at 186-87. 2 The enhancements increased Bowman’s sentence by more than 3 half over the statutory maximum for his underlying crimes. 4 5 Bowman’s reliance on Dorvee is misplaced. First, 6 Bowman had actually assaulted his daughter, resulting in a 7 five-level enhancement that is hardly controversial, and 8 that was not a factor in Dorvee. Second, the procedural 9 errors involved in Dorvee are not present here. Third (and 10 most importantly) the sentence in Dorvee was at the maximum 11 end of the Guidelines range. Id. at 184-85. Here, the 12 court specifically considered the relevant Section 3553 13 factors, as well as Dorvee’s critique of Section 2G2.2, and 14 granted a departure of seven years below the Guidelines 15 maximum. Under these circumstances, there can be little 16 doubt that the resulting sentence was “located within the 17 range of permissible decisions,” and was not substantively 18 unreasonable. See Cavera, 550 F.3d at 189 (quotation 19 omitted). 20 21 2. Bowman received consecutive sentences for 22 possession of child pornography under Section 2252 23 A(a)(5)(B) and for receipt of child pornography under 24 Section 2252 A(a)(2). He argues this constituted double 25 jeopardy because it is impossible to receive pornography 26 without also possessing it. When one offense is entirely 27 subsumed into the other, it is the “same offense” for double 28 jeopardy purposes. Ball v. United States, 470 U.S. 856, 29 861-64 (1985) (statutes directed at receipt and possession 30 of a firearm implicate double jeopardy, since proof of 31 receipt necessarily includes proof of possession). 32 33 A valid guilty plea constitutes a waiver of any double 34 jeopardy claims. United States v. Broce, 488 U.S. 563, 569 35 (1989). A small exception to that rule arises when charges 36 are facially duplicative of one another. Id. at 575. The 37 key question therefore is whether the receipt and possession 38 counts were duplicative at the time that Bowman entered his 39 plea. 40 41 They were not. During the hearing on Bowman’s change 42 of plea, the government drew the distinction that the 43 possession files were “exclusive of the two [that were] 44 previously described as being received via Limewire.” Hr’g 3 1 Tr. at 19, ECF No. 50. Both Bowman and his attorney agreed 2 with the government’s description. His argument was 3 therefore waived. 4 5 Moreover, Bowman failed to present this argument below 6 when he pled guilty. While “plain error that affects 7 substantial rights may be considered even though it was not 8 brought to the [lower] court’s attention,” Fed.R.Crim.P. 9 52(b), there was none here. There is no double jeopardy 10 problem where the receipt and possession counts of a 11 conviction were based upon different files. See United 12 States v. Irving, 554 F.3d 64, 79 (2d Cir. 2009) (“If the 13 jury’s verdicts on [receipt] and [possession] were based on 14 different images, there was no double jeopardy violation in 15 the entry of judgment on both counts.”). 16 17 We have considered all of Bowman’s remaining arguments 18 and find them to be without merit. Accordingly, the 19 judgment of the district court is hereby AFFIRMED. 20 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 4