11-5351-cr
United States v. DeLong
                           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 United States Courthouse, 500 Pearl Street, in the City of New
York, on the 9th day of October, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,

                          v.                                            No. 11-5351-cr

HARVEY DELONG,
                                     Defendant-Appellant.

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FOR APPELLANT:                 Lisa Peebles, James P. Egan, Federal Public Defender,
                               Syracuse, New York.

FOR APPELLEE:                  Lisa M. Fletcher, Assistant United States Attorney, for
                               Richard S. Hartunian, United States Attorney for the Northern
                               District of New York, Syracuse, New York.

          Appeal from a judgment of the United States District Court for the Northern District

of New York (Glenn T. Suddaby, Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Harvey DeLong appeals from a December 23, 2011, judgment

of the United States District Court for the Northern District of New York, following his

guilty plea to knowingly receiving, via the internet, depictions of minors engaging in sexually

explicit conduct, in violation of 18 U.S.C. § 2252A(a)(2)(A), and knowingly possessing and

accessing with intent to view, via the internet, material containing images of minors engaging

in sexually explicit conduct, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court

imposed a sentence of 240 months’ incarceration, comprising 240 months for the receipt

count and 120 months for the possession count, to run concurrently; lifetime supervised

release; and the mandatory $200 assessment. On appeal, DeLong contends that the 240-

month term of imprisonment is substantively unreasonable. We assume the parties’

familiarity with the underlying facts and procedural history of the case.

       In support of his appeal, DeLong argues primarily that his sentence is substantively

unreasonable because it contravenes this Court’s holding in United States v. Dorvee, 616

F.3d 174 (2d Cir. 2010). DeLong’s case is distinguishable from Dorvee. In Dorvee, we held

that a guidelines sentence of 240 months in prison was substantively unreasonable as applied

to an offender with no criminal history who possessed several thousand still images and

approximately 100 to 125 videos depicting child pornography. Id. at 176, 188. DeLong, by

contrast, possessed 138,000 still images and 2,018 videos of child pornography, plus an

additional 46,000 electronic files containing child pornography or child erotica. He also had


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a criminal history that included four prior felonies, three of which he committed as a mature

adult.

         More importantly, unlike the sentencing judge in Dorvee, the judge below did not

uncritically apply the sentencing guidelines. Instead, he imposed a below-guidelines

sentence based on his own assessment of, first, the seriousness of DeLong’s offense in light

of the harm caused to victims, the sheer number of images in DeLong’s possession, and

evidence that DeLong had redistributed images and mentored others on how to find and

download certain types of child pornography; and, second, DeLong’s likelihood of

reoffending in light of his criminal history, past failure to adhere to terms of supervision, and

apparent inability to recognize the seriousness of his offense. On the basis of these

considerations, the judge concluded that a 240-month sentence was appropriate in light of

the § 3553(a) factors, even though DeLong had never abused a child and the expert opined

that he was unlikely to do so.

         We are not entitled to “substitut[e] our judgment for that of the sentencing judge.”

United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Rather, we review the sentence

imposed “under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S.

38, 41 (2007). Applying that standard to the facts of the case, we conclude that the district

court’s decision was not beyond “the range of permissible decisions.” United States v.

Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks omitted).

         For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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