16-4119-cr
United States v. Frascatore
16-4119-cr
United States v. Frascatore

                                   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 30th day of October, two thousand seventeen.


PRESENT:             AMALYA L. KEARSE,
                     JOSÉ A. CABRANES,
                     RICHARD C. WESLEY,
                                  Circuit Judges.


UNITED STATES OF AMERICA,

                              Appellee,                     16-4119-cr

                              v.

MICHAEL J. FRASCATORE,

                              Defendant-Appellant.


FOR APPELLEE:                                            Miroslav Lovric and Joseph A.
                                                         Giovannetti, Assistant United States
                                                         Attorneys, for Grant C. Jaquith, Acting
                                                         United States Attorney for the Northern
                                                         District of New York.

FOR DEFENDANT-APPELLANT:                                 Melissa A. Tuohey, Assistant Federal
                                                         Public Defender, for Lisa A. Peebles,
                                                         Federal Public Defender.


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16-4119-cr
United States v. Frascatore
       Appeal from an order of the United States District Court for the Northern District of New
York (Thomas J. McAvoy, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 7, 2016 judgment of the District Court be
and hereby is AFFIRMED.

          Defendant Michael J. Frascatore (“defendant” or “Frascatore”) appeals from a December 7,
2016 judgment in which he was sentenced to a term of nine months’ imprisonment and eight years
of supervised release. This sentence resulted from defendant’s multiple violations while on
supervised release for a previous conviction for distribution of child pornography. He was originally
sentenced on August 5, 2008 to 60 months’ imprisonment and eight years of supervised release.
Frascatore began his initial term of supervised release on August 12, 2011. The violations for which
defendant was most recently sentenced included unapproved contact with a minor male child,
regularly accessing the internet, ongoing, unapproved telephone contact with minor nieces and
nephews, and submitting false monthly reports to his probation officer. Frascatore now argues that
this newly-imposed sentence is both procedurally and substantively unreasonable. We assume the
parties’ familiarity with the underlying facts and the procedural history of the case.

        As an initial matter, we note that Frascatore completed his nine month term of incarceration
and was released from custody on July 28, 2017. Any challenge to the procedural or substantive
reasonableness of his term of confinement is thus moot. See United States v. Probber, 170 F.3d 345,
347-49 (2d Cir. 1999) (dismissing as moot an appeal from a judgment revoking supervised release
where defendant had already completed his term of confinement). However, because defendant
would still be entitled to a reduction of his term of supervised release if the court were to find such a
reduction appropriate, we will analyze whether, as defendant claims, the supervised release
component of the District Court’s sentence was either procedurally or substantively unreasonable.
See United States v. Mazza Alaluf, 621 F.3d 205, 213 (2d Cir. 2010) (holding that a completed term of
confinement did not render a challenge to the reasonableness of a sentence moot where defendant
could receive a reduced term of supervised release).

         Defendant contends that the District Court committed procedural error because it relied on
clearly erroneous factual findings in determining a sentence. Specifically, he argues that the District
Court improperly concluded that his contact with minors and his repeated (and unreported)
attempts to gain access to the internet were the result of his urges to fuel his inappropriate sexual
desires, rather than mere inadvertent violations.

       Although we generally review sentences for “abuse of discretion,” United States v. Bonilla, 618
F.3d 102, 108 (2d Cir. 2010), we review Frascatore’s procedural claim for plain error because he did




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16-4119-cr
United States v. Frascatore
not object to the District Court’s alleged procedural error.1 A district court commits procedural error
“where it fails to calculate the Guidelines range”; “makes a mistake in its Guidelines calculation, or
treats the Guidelines as mandatory”; “does not consider the § 3553(a) factors”; “rests its sentence on
a clearly erroneous finding of fact”; or “fails adequately to explain its chosen sentence.” United States
v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). The District Court did not commit a
procedural error, much less a plain procedural error, when sentencing Frascatore.

         The District Court did not base its sentence on any mistaken belief or clearly erroneous
facts. On the contrary, the Court made clear when sentencing the defendant and revoking his
supervised release that the punishment imposed was primarily meant to deter defendant’s repeated
lies to the probation department. The District Court found that the defendant had failed to report
unapproved contact with a minor to his probation officer; he had regularly gained access to the
internet without informing his probation officer; he had repeatedly submitted false reports to his
probation officer; he had registered a Facebook account under a fictitious name without informing
his probation officer; and he had possessed an internet-capable cellular telephone without informing
his probation officer. The District Court thus committed no procedural error in determining that
defendant had engaged in a pattern of deceiving his probation officer. The District Court properly
sentenced the defendant based on these findings, which were not clearly erroneous given the factual
record and the defendant’s own admissions at sentencing. Defendant asks us to conclude that the
District Court’s stated reason for its sentence was not, in fact, the basis for the punishment given.
The record does not compel such a conclusion.

         While defendant notes that the District Court was more sympathetic to his behavior during
his initial sentencing hearing in 2008, the District Court committed no error by abandoning that
view in 2016; it was reasonable for the District Court to characterize defendant’s conduct as “out of
control” when faced with the task of sentencing him for four separate violations of the terms of his
supervised release. It was also proper for the District Court to consider the extent to which
defendant’s violations might have been committed to further a sexual desire for minors, considering
defendant’s undisputed conduct in committing the underlying crime for which he was convicted.

         Defendant next contends that his sentence was substantively unreasonable because of the
weight the District Court assigned to its “erroneous” finding that defendant’s sexual desires might
have motivated his violations of supervised release. A sentence is substantively unreasonable “only
if it cannot be located within the range of permissible decisions.” Bonilla, 618 F.3d at 108 (internal
quotation marks and citations omitted). As we have observed before, “in the overwhelming majority
of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would
    1
     Under a plain error review, a defendant must “demonstrate that (1) there was error, (2) the
error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously
affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Cook, 722
F.3d 477, 481 (2d Cir. 2013)(internal quotation marks omitted).

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16-4119-cr
United States v. Frascatore
be reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.
2006) (abrogated on other grounds by Rita v. United States, 551 U.S. 338, 364 (2007)). The District
Court’s imposition of eight years of supervised release was reasonable given the circumstances
presented; the maximum possible penalty for the violations to which Defendant admitted is a
lifetime of supervised release. See U.S.S.G. § 7B1.3; 18 U.S.C. § 3583(k).

        We reject defendant’s argument that the District Court’s allusion to Frascatore’s sexual
desire for minors renders his Guidelines sentence substantively unreasonable. It might well be the
case that while defendant characterized his violations as innocuous missteps, the District Court
viewed defendant’s actions as reflective of a more serious sexual problem. In any event, our review
of the record suggests that the District Court fairly considered the evidence presented by both
parties before determining a sentence.

        Last, defendant argues that the District Court did not properly consider all of the 18 U.S.C. §
3553(a) factors before imposing a sentence. We find that the District Court did not ignore or give
outsize weight to any evidence. While the defendant essentially asks us to reweigh the § 3553(a)
factors considered by the District Court, “the weight to be given any § 3553(a) factor[] is a matter
firmly committed to the discretion of the sentencing judge and is beyond our [appellate] review, as
long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.”
United States v. Florez, 447 F.3d 145, 158 (2d Cir. 2006) (internal quotation marks omitted). We see no
basis for concluding that Frascatore’s sentence of eight years of supervised release (or, for that
matter, his sentence of nine months in custody) was unreasonable under the circumstances
presented.

                                          CONCLUSION

        We have considered all of the arguments raised by Defendant on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the December 7, 2016 judgment of the
District Court.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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