16-2091-cr
United States v. Hause

                          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 TO 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
10th day of May, two thousand seventeen.

Present:
            JOHN M. WALKER, JR.,
            DEBRA ANN LIVINGSTON,
            GERARD E. LYNCH,
                  Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                 v.                                                16-2091-cr

FRANK HAUSE,

                  Defendant-Appellant.
_____________________________________

For Appellee:                             Rajit S. Dosanjh, for Richard S. Hartunian, United
                                          States Attorney for the Northern District of New York,
                                          Syracuse, New York

For Defendant-Appellant:                  Molly K. Corbett (James P. Egan, on the brief) for
                                          Lisa A. Peebles, Federal Public Defender, Northern
                                          District of New York, Albany, New York




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

New York (Sharpe, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-Appellant Frank Hause pleaded guilty to receiving, possessing and

distributing child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1) and

(b)(2).    The district court sentenced Hause, as relevant on appeal, to 151 months’ imprisonment

and a life term of supervised release.        We assume the parties’ familiarity with the facts, the

procedural history of the case, and the issues on appeal.

          We review a district court’s sentence for procedural and substantive reasonableness.

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). Because Hause did not

raise any of his objections before the district court, we review his procedural challenges for plain

error.1    See United States v. Villafuerte, 502 F.3d 204, 208 (2d Cir. 2007). To establish plain

error, an appellant must show there was (1) error; (2) that is clear or obvious; and (3) that

affected his substantial rights.      Id. at 209.     If these requirements are met, this Court has

discretion to correct the error if it “seriously affected the ‘fairness, integrity or public reputation

of the judicial proceedings.’” Id. (quoting United States v. Doe, 297 F.3d 76, 82 (2d Cir.

2002)).

          A district court procedurally errs by, inter alia, failing adequately to explain the sentence

imposed, including any deviation from the range recommended by the United States Sentencing
1
  As to Hause’s substantive reasonableness challenge, this Court has “not decided whether plain error
review applies to an unpreserved challenge to the substantive reasonableness of a sentence.” United
States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). We need not, and do not, reach this issue
here, however, because for the reasons stated infra, we find no abuse of discretion, let alone plain error, in
the district court’s imposition of a term of 151 months’ imprisonment and a life term of supervised release
in this case.


                                                      2
Guidelines (the “Guidelines”). Gall v. United States, 552 U.S. 38, 51 (2007).          Requiring the

district court to explain its sentence serves important goals: “(1) informing the defendant of the

reasons for his sentence, (2) permitting meaningful appellate review, (3) enabling the public to

learn why the defendant received a particular sentence, and (4) guiding probation officers and

prison officials in developing a program to meet the defendant's needs.” United States v.

Verkhoglyad, 516 F.3d 122, 132 (2d Cir. 2008) (quoting Villafuerte, 502 F.3d at 210).

However, the level of explanatory detail required varies according to the sentence, and a

Guidelines sentence often requires little explanation. Rita v. United States, 551 U.S. 338, 356–

59 (2007); Villafuerte, 502 F.3d at 211–12.

       Hause contends, at the start, that his sentence is procedurally unreasonable because the

district court failed adequately to explain its within-Guidelines sentence.     We disagree.     At

Hause’s sentencing, the district court explained that it had reviewed the sentencing submissions

of the parties and the Probation Department’s presentence investigation report (“PSR”).         The

court noted that it had considered arguments about the factors incorporated into Guidelines

sentences for child pornography offenses as a general matter.     The court also heard argument

from defense counsel explaining Hause’s personal characteristics.         The district court then

observed:

               When I look at this particular case and the victims that are
               involved and the sentencing factors that I’m supposed to consider
               which are fully recited in 18 U.S.C. [§] 3553(a), includes all things
               about you, Mr. Hause. I’m satisfied that a guideline sentence
               here at the low end of the range is the reasonable choice given the
               harm—the public harm that’s been caused these children by the
               conduct of conviction in this case . . . .




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J.A. 76.      Because the record thus adequately explains the reasons underlying Hause’s

151-month sentence, we perceive no procedural error (let alone plain error) in his sentence on

that basis.

        Nor do we find Hause’s second argument—that the district court failed to consider all of

the statutory sentencing factors outlined in 18 U.S.C. § 3553(a)—to be availing. We presume,

in the absence of contrary evidence, that a district court has considered the statutory factors and

do not require a district court to incant any specific words to prove it has done so.   Verkhoglyad,

516 F.3d at 129, 131; see also United States v. Wagner-Dano, 679 F.3d 83, 89 (2d Cir. 2012).

Here, the district court expressly stated it had “received and reviewed” Hause’s and the

government’s sentencing submissions and the PSR.          J.A. 67.    The district court also heard

argument relevant to the statutory sentencing factors at Hause’s sentencing hearing. Moreover,

the record makes clear that the district court considered the arguments presented to it about

Hause’s personal characteristics and history in selecting Hause’s sentence.             Although the

district court did not recite the factors outlined in § 3553(a), it referred to the factors in

explaining the basis for its decision—both at Hause’s sentencing hearing and in its written

Statement of Reasons.

        We also disagree with Hause’s contention that his sentence is substantively unreasonable.

Specifically, Hause contends the district court’s reliance on the harm to the children who

appeared in the images Hause received, possessed, and distributed cannot bear the weight

assigned to it in the determination of Hause’s sentence.             “At the substantive stage of

reasonableness review, an appellate court may consider whether a factor relied on by a

sentencing court can bear the weight assigned to it.” Cavera, 550 F.3d at 191. Substantive

reasonableness review “provide[s] a backstop for those few cases that, although procedurally


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correct, would nonetheless damage the administration of justice because the sentence imposed

was shockingly high, shockingly low, or otherwise unsupportable as a matter of law.” United

States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

       This is not one of those few cases.       As explained above, the district court sentenced

Hause after considering the relevant § 3553(a) factors, including Hause’s personal characteristics

and the seriousness of his offenses. In light that consideration, including of Hause’s arguments

in support of a shorter sentence, nothing warrants our reweighing the factors balanced by the

district court. See Cavera, 550 F.3d at 191.     Hause’s within-Guidelines terms of imprisonment

and supervised release are not “shockingly high, shockingly low, or otherwise unsupportable as a

matter of law,” Rigas, 583 F.3d 108.        Finding neither procedural nor substantive error, we

affirm the district court’s sentence entirely.

       We have considered Hause’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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