16-2781-cr
United States of America v. Ralph Daniel Smith

                                  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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
5th day of September, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            GERARD E. LYNCH,
                        Circuit Judges.
            BRIAN M. COGAN,
                        District Judge.1
_____________________________________________________

UNITED STATES OF AMERICA,

                            Appellee,

                            v.                                                          16-2781-cr

RALPH DANIEL SMITH, AKA DAN SMITHSON,

                  Defendant - Appellant.
_____________________________________________________

    Appearing for Appellant:                     Daniel DeMaria, Merchant Law Group LLP, New York,
                                                 NY.

    Appearing for Appellee:                      Rajit S. Dosanjh, Assistant United States Attorney (Lisa M.
                                                 Fletcher, Assistant United States Attorney, on the brief), for
                                                 Grant C. Jaquith, Acting United States Attorney for the
                                                 Northern District of New York, Syracuse, NY.

1
  Judge Brian M. Cogan, United States District Court for the Eastern District of New York,
sitting by designation.


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       Appeal from the United States District Court for the Northern District of New York
(Sannes, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-appellant Ralph Daniel Smith appeals from a sentence of 240 months’
imprisonment and a life term of supervised release, imposed by the United States District Court
for the Northern District of New York (Sannes, J.). Smith pled guilty to violating a number of
statutes related to child pornography and child exploitation, including 18 U.S.C. §§ 2251(a),
(e); 2252A(a)(2)(A), (b)(1); and 1470. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

   1. Substantive Reasonableness of Incarceration Term

        We review sentencing decisions for “reasonableness.” United States v. Cossey, 632 F.3d
82, 86 (2d Cir. 2011) (internal quotation marks omitted). “Reasonableness review has both a
procedural and a substantive component,” United States v. Irving, 554 F.3d 64, 71 (2d Cir.
2009), and it is “akin to a ‘deferential abuse-of-discretion standard,’” Cossey, 632 F.3d at 86
(quoting Gall v. United States, 552 U.S. 38, 52 (2007)).

        “[A] district court should begin all sentencing proceedings by correctly calculating the
applicable Guidelines range. Gall, 552 U.S. at 49. “Regardless of whether the sentence imposed
is inside or outside the Guidelines range, the appellate court must review the sentence under an
abuse-of-discretion standard.” Id. at 51. The appellate court must “ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly calculating)
the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines range.” Id.

        At the substantive reasonableness stage, we ask whether “the trial court’s sentence can[]
be located within the range of permissible decisions.” United States v. Dorvee, 616 F.3d 174, 179
(2d Cir. 2010) (internal quotation marks omitted). Particularly with respect to the child
pornography guidelines, we do not presume that a within-Guidelines sentence “[is] reasonable
when we review [it] substantively.” Id. at 183. We have “likened our substantive review to the
consideration of a motion for a new criminal jury trial, which should be granted only when the
jury’s verdict was ‘manifestly unjust,’ and to the determination of intentional torts by state
actors, which should be found only if the alleged tort ‘shocks the conscience.’” Id.

        Smith was convicted of violating, among other statutes, 18 U.S.C. § 2251(a), “sexual
exploitation of children.” For a first-time offender, this statute prescribes a minimum sentence of
15 years. See 18 U.S.C. § 2251(e). Smith was also convicted of several child pornography
offenses, and as noted in United States v. Brown, “[i]n 2010—the most recent year for which
data is available—the average sentence for production of child pornography was 267.1 months,
or approximately 22 years.” 843 F.3d 74, 92 (2d Cir. 2016) (Pooler, J., dissenting).




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        Given that Smith engaged in sexual conduct with his own daughter, aggravated by
extreme psychological abuse, and that his sentence is only five years above the statutory
minimum and a few years below the average sentence for this type of offense, we do not agree
that the sentence is substantively unreasonable. Smith relies heavily on United States v. Jenkins,
854 F.3d 181 (2d Cir. 2017), and Dorvee, but in those cases, the defendants neither touched the
victims nor were charged with a production offense, thus differing significantly from the
circumstances here. We therefore reject Smith’s substantive reasonableness challenge as to his
term of imprisonment.

    2. Reasonableness of Lifetime Supervised Release

       Smith argues that the district court failed to explain sufficiently why he received a life
term of supervised release. “[F]ailing to adequately explain the chosen sentence” is a species of
procedural error.2 Gall, 552 U.S. at 51. Although Judge Sannes explained in detail her reasoning
for imposing the sentence she ultimately reached, Smith asks us to view that reasoning as only
explaining the imprisonment component of the sentence, leaving the supervised release
component without any support. We reject this argument.

        Section 3553(c) states that “[t]he court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c) (emphasis added).
Nowhere does the statute break apart the sentence into constituent parts and task the district court
with supporting each part. Rather, sentencing is a holistic analysis, and here, there can be no
doubt that the district court considered all of the § 3553(a) factors, including the nature of the
offense, the need for treatment, and the characteristics of the defendant, in arriving at its “chosen
sentence,” consisting of an incarceration term and a supervised release term. See United States v.
Cavera, 550 F.3d 180, 192-93 (2d Cir. 2008). The district court viewed the life term of
supervised release as an integral part of its overall sentence, explaining in open court that “the
facts and circumstances of this case warrant a lengthy term of imprisonment after which the
defendant will be subject to a life term of supervised release, thereby reducing the likelihood that
he will commit further crimes.” App’x 49. Therefore, we also reject Smith’s reasonableness
challenge as to his life term of supervised release.




2
  The government claims that Smith waived this argument below because he argued for a
lifetime term of supervised release in return for a below-guidelines sentence. But Smith’s
counsel emphasized that lifetime supervised release would be appropriate if the district court
imposed a fifteen-year sentence, not any below-guidelines sentence. The government’s argument
is particularly implausible because the guidelines recommendation for Smith was 240 years’
imprisonment; surely Smith’s attorney did not argue that lifetime supervised release was a fair
trade for a below-guidelines sentence of (for example) 239 years.


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       We have considered the remainder of the appellant’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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