     10-4255-cr
     United States v. Shane


                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of December, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                               10-4255-cr
17
18       David A. Shane,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Lisa Peebles, Federal Public
23                                             Defender, Syracuse, New York
24                                             (James P. Egan and James F.
25                                             Greenwald, Federal Public
26                                             Defender, Syracuse, NY, on the
27                                             brief)
28
29       FOR APPELLEE:                         Julie S. Pfluger and Lisa M.
30                                             Fletcher, Assistant United

                                                  1
1                                States Attorneys, Of Counsel,
2                                Syracuse, NY; for Richard S.
3                                Hartunian, United States
4                                Attorney, Northern District of
5                                New York, Syracuse, NY)
6
7
8        Appeal from a judgment of the United States District

9    Court for the Northern District of New York (Mordue, C.J.).

10

11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

12   AND DECREED that the District Court’s judgment is AFFIRMED.

13

14       Defendant-Appellant, David A. Shane, pleaded guilty to

15   production and possession of child pornography.       On the

16   production count, he was sentenced to 188 months in prison

17   and three years of supervised release.       On the possession

18   count, he was sentenced to 120 months in prison and a

19   lifetime term of supervision.       The sentences will run

20   concurrently.   He was also assessed a special assessment of

21   $200.   Shane challenges these sentences as substantively

22   unreasonable.   We assume the parties’ familiarity with the

23   underlying facts, the procedural history of the case, and

24   the issues on appeal.

25       Shane cannot demonstrate that the District Court abused

26   its discretion in imposing a sentence of 188 months in

27   prison and a life term of supervision.      See Gall v. United

                                     2
1    States, 552 U.S. 38, 41 (2007) (holding that appellate

2    courts must review sentences for reasonableness under the

3    “deferential abuse-of-discretion standard”); accord United

4    States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

5    banc).   A substantive challenge requires the defendant to

6    show that the sentence falls outside the “broad range” of

7    sentences “that can be considered reasonable under the

8    totality of the circumstances” and in light of “due

9    deference [afforded] to the district court’s exercise of

10   judgment.”   United States v. Jones, 531 F.3d 163, 174 (2d

11   Cir. 2008); accord id. (“In short, in determining

12   substantive reasonableness, a reviewing court will set aside

13   only those outlier sentences that reflect actual abuse of a

14   district court’s considerable sentencing discretion.”).

15       Shane cannot sustain this burden, given (1) the

16   particulars of his offenses; (2) the District Court’s due

17   consideration of Shane’s personal circumstances in

18   concluding that the sentence imposed was nevertheless

19   warranted; (3) the sentence was within the applicable

20   Sentencing Guidelines range, United States v. Fernandez, 443

21   F.3d 19, 27 (2d Cir. 2006) (recognizing that sentences

22   within the guidelines range are substantively reasonable the

23   “overwhelming majority of” the time); (4) the Sentencing

24   Commission’s recommendation of a maximum term of supervision

                                   3
1    for sex offenders, U.S. SENTENCING GUIDELINES MANUAL §

2    5D1.2(b)(2) (Policy Statement); (5) the statutory authority

3    to impose lifetime terms of supervision for child sex

4    offenders in light of congressional findings that such

5    supervision is sometimes necessary, 18 U.S.C. § 3583(k);

6    H.R. REP. NO. 108-66, at 42 (2003) (Conf. Rep.), reprinted in

7    2003 U.S.C.C.A.N. 683, 684; and (6) this Court’s authority

8    upholding such a term of supervision, see United States v.

9    Hayes, 445 F.3d 536, 537 (2d Cir. 2006).

10

11        We have considered all of Shane’s additional arguments

12   and find them to be without merit.     Accordingly, the

13   judgment of the District Court is AFFIRMED.

14
15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18
19




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