11-577-cr
United States v. Patt

                           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 29th day
of August, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         RICHARD C. WESLEY,
         PETER W. HALL,
                     Circuit Judges,
________________________________________________

UNITED STATES OF AMERICA,

                   v.                                           No. 11-577-cr

LEWIS S. PATT, JR.,

           Defendant-Appellant.

________________________________________________

For Defendant-Appellant:                 SALLY WASSERMAN, New York, N.Y.

For Appellee:                            TIFFANY LEE (Stephan J. Baczynski, on the brief)
                                         Assistant United States Attorneys, for William J.
                                         Hochul, Jr., United States Attorney for the Western
                                         District of New York.
       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Lewis S. Patt, Jr. appeals a February 10, 2011 judgment of

conviction entered by the United States District Court for the Western District of New York

(Larimer, J.) following his guilty plea to two counts of possessing child pornography in violation

of 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Patt to, principally, concurrent

terms of 120 months’ imprisonment, to run consecutively with a 60 month New York state term

of imprisonment Patt is currently serving on related charges. We presume the parties’ familiarity

with the facts and procedural history of this case.

       “We review the reasonableness of a district court’s sentence under a deferential abuse of

discretion standard.” United States v. Hernandez, 604 F.3d 48, 52 (2d Cir. 2010). This review

“encompasses two components: procedural review and substantive review.” United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). 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, or rests its sentence on a clearly erroneous finding of fact.”

Id. at 190 (internal citations omitted). “We interpret plea agreements de novo in accordance with

principles of contract law, looking to the parties’ reasonable understanding of the agreement’s

terms and resolving any ambiguities in the defendant’s favor.” United States v. Stearns, 479

F.3d 175, 178 (2d Cir. 2007) (per curiam).



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       We turn first to Patt’s contention that the district court miscalculated the applicable

sentencing range under the United States Sentencing Guidelines (the “Guidelines range”) by

failing to adhere to U.S.S.G. § 5G1.1(a)’s guidance that “[w]here the statutorily authorized

maximum sentence is less than the minimum of the applicable guideline range, the statutorily

authorized maximum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(a). We

conclude that an appeal waiver contained in Patt’s plea agreement with the Government bars Patt

from making this argument on appeal. In his plea agreement, Patt expressly waived his right to

appeal “any component of a sentence imposed by the Court which falls within or is less than a

term of imprisonment [of 188 to 235 months], . . . notwithstanding the manner in which the

Court determines the sentence.” App. 75. A defendant’s waiver of his right to appeal a sentence

is presumptively enforceable, and ordinarily “preclude[s] this Court from correcting the errors

alleged to have occurred below.” United States v. Buissereth, 638 F.3d 114, 117 (2d Cir. 2011).

Here, Patt argues that the appeal waiver does not preclude him from objecting to the district

court’s calculation of the Guidelines range because he is not disputing a “component of [the]

sentence” but rather arguing that “the overall sentencing method was procedurally

unreasonable.” Appellant’s Br. at 24. This is unconvincing. Patt is challenging a “component”

of his sentence -- the term of imprisonment. See United States v. Shyne, 391 F. App’x 959, 961

(2d Cir. 2010) (summary order) (noting that the defendant “waived his right to appeal any term

of imprisonment less than 235 months” but retained the right “to appeal any other component” of

his sentence, such as the amount of restitution).

       Moreover, on the merits, § 5G1.1 of the Guidelines -- entitled “Sentencing on a Single

Count of Conviction” -- has no bearing on the calculation of the Guidelines range for a defendant


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who, like Patt, is convicted on multiple counts. Instead, the Guideline provision that is relevant

here is U.S.S.G. § 5G1.2, entitled “Sentencing on Multiple Counts of Conviction.” This section

instructs “the sentencing judge how, through the use of partially concurrent and partially

consecutive sentences, to build a total sentence that meets the Guidelines’ requirements” if the

individual counts are subject to statutory maximum sentences that prevent the judge from

imposing a Guidelines sentence with respect to any single count. See Setser v. United States,

132 S. Ct. 1463, 1472 n.5 (2012); see also id. at 1476 (Breyer, J., dissenting). Accordingly, even

if Patt had not waived his right to appeal his objection to the district court’s calculation of the

applicable Guidelines range, we would conclude that the objection is without merit.

       Next, we consider Patt’s argument that the district court procedurally erred in ordering

Patt’s federal and state sentences to run consecutively, allegedly in violation of U.S.S.G.

§ 5G1.3(b)’s guidance that, where “a term of imprisonment resulted from another offense that is

relevant conduct to the instant offense of conviction . . . and that was the basis for an increase in

the offense level for the instant offense,” the court “shall adjust the sentence for any period of

imprisonment already served . . . and . . the sentence for the instant offense shall be imposed to

run concurrently to the remainder of the undischarged term of imprisonment.” Assuming

arguendo that the district court’s failure to expressly note its departure from § 5G1.3(b) on the

record constitutes procedural error, we conclude that this error was harmless. In announcing its

sentence, the district court offered a careful, extensive, and reasoned explanation as to how it had

applied the statutory sentencing factors enumerated in 18 U.S.C. § 3553(a) to reach its sentence.

In particular, the district court reasonably concluded that, despite the sometimes “harsh results of

slavish adherence to [the guidelines]” in the ordinary possession of child pornography


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prosecution, J.A. 201, Patt deserved a “middle of . . . the guidelines” sentence because of his

“evil and dreadful” sexual abuse of several young children, J.A. 204. Based on this, we can

“confidently conclude that it was harmless because the district court would certainly impose the

challenged sentence” even if we were to remand for re-sentencing in light of § 5G1.3(b). United

States v. Coppola, 671 F.3d 220, 251 (2d Cir. 2012); see also id. at 253 n.30 (noting that, given

that the Guidelines are now advisory, “the district court [has] the discretion not to follow

§ 5G1.3(b)”).

       We have considered Patt’s other arguments on appeal and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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