     13-3612-cr
     United States v. Oswald

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of August, two thousand fourteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                DENNIS JACOBS,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-3612-cr
16
17       DAVID P. OSWALD, III, AKA BOBBY LEE
18       JOHNSON, AKA BOBBY LEE TRIPLETT, AKA
19       BOBBY TRIPLETT,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        BARCLAY T. JOHNSON, for Michael
24                                             L. Desautels, Federal Public
25                                             Defender for the District of
26                                             Vermont, Burlington, Vermont.
27


                                                  1
 1   FOR APPELLEES:             WILLIAM B. DARROW (Gregory L.
 2                              Waples, on the brief), for
 3                              Tristram J. Coffin, United
 4                              States Attorney for the District
 5                              of Vermont, Burlington, Vermont.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the District of Vermont (Reiss, C.J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        David Oswald appeals from the judgment of the United
15   States District Court for the District of Vermont (Reiss,
16   C.J.), convicting him of failure to register as a sex
17   offender, health care fraud, possession of a firearm, and
18   possession of child pornography, in violation of 18 U.S.C.
19   §§ 922(g)(1), 1347, 2250(a), and 2252(a)(4)(B). Oswald
20   challenges the portion of the judgment that orders him to
21   undergo lifetime supervised release after completing a
22   period of incarceration. We assume the parties’ familiarity
23   with the underlying facts, the procedural history, and the
24   issues presented for review.
25
26        We review sentences for reasonableness, United States
27   v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
28   which “amounts to review for abuse of discretion,” see
29   United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
30   (en banc). However, “where a defendant does not object to a
31   district court’s alleged failure to properly consider all of
32   the § 3553(a) factors, our review on appeal is restricted to
33   plain error.” United States v. Wagner-Dano, 679 F.3d 83, 89
34   (2d Cir. 2012). Our review applies to both “‘the sentence
35   itself’ and to ‘the procedures employed in arriving at the
36   sentence.’” United States v. Verkhoglyad, 516 F.3d 122, 127
37   (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d
38   19, 26 (2d Cir. 2006)). “The procedural inquiry focuses
39   primarily on the sentencing court’s compliance with its
40   statutory obligation to consider the factors detailed in 18
41   U.S.C. § 3553(a), while the substantive inquiry assesses the
42   length of the sentence imposed in light of the § 3553(a)
43   factors.” Id. (internal citations, brackets, and quotation
44   marks omitted).

                                  2
 1   1.   Procedural Reasonableness
 2
 3        Oswald contends that when a district court imposes a
 4   term of supervised release, it must again analyze the §
 5   3553(a) factors, and do so on a basis independent from its
 6   analysis supporting a sentence of incarceration. We
 7   disagree. “[W]e do not require robotic incantations that
 8   the district court has considered each of the § 3553(a)
 9   factors,” Cavera, 550 F.3d at 193, and a district court may
10   “engage[] in a single consideration of the sentencing
11   factors, which embrace[s] both the incarceration sentence
12   and the supervised release term,” United States v. Presto,
13   498 F.3d 415, 419 (6th Cir. 2007).
14
15        Oswald also argues that the district court failed to
16   adequately explain the reasons for a lifetime term of
17   supervised release. While “we presume ‘that a sentencing
18   judge has faithfully discharged her duty to consider the
19   statutory factors,’” Verkhoglyad, 516 F.3d at 129 (quoting
20   Fernandez, 443 F.3d at 30), the district court here provided
21   an adequate explanation for imposing the lifetime term based
22   on the § 3553(a) factors. In particular, the district court
23   focused on the nature of the crimes committed by Oswald, the
24   risk of recidivism, the risk to the public, and Oswald’s
25   need for mental health treatment. See Sentencing Hrg. Tr.,
26   J.A. at 50-53. The record reflects that the stated reasons
27   informed both components of Oswald’s sentence.
28
29   2.   Substantive Reasonableness
30
31        For the same reasons articulated by the district court
32   at its sentencing hearing and in its statement of reasons,
33   we conclude that Oswald’s lifetime term of supervised
34   release is substantively reasonable given the risk he has
35   been found to pose to the public. Under the circumstances,
36   we cannot say the district court’s sentence is so
37   exceptional as to fall outside “the range of permissible
38   decisions.” Cavera, 550 F.3d at 189 (quoting United States
39   v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
40
41
42
43


                                  3
1        For the foregoing reasons, and finding no merit in
2   Oswald’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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