17-2603-cr
United States v. Gill


                                    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 12th day of October, two thousand eighteen.

PRESENT:                JOSÉ A. CABRANES,
                        ROBERT D. SACK,
                                     Circuit Judges,
                        JOHN G. KOELTL,
                                     District Judge.*



UNITED STATES OF AMERICA,

                               Appellee,                    17-2603-cr

                               v.
JOSEPH GILL,

                               Defendant-Appellant.




     *
    Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.

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FOR APPELEE:                                                Geoffrey J.L. Brown and Carina H.
                                                            Schoenberger, Assistant United States
                                                            Attorneys, for Grant C. Jacquith, United
                                                            States Attorney, Northern District of New
                                                            York, Syracuse, NY.

FOR DEFENDANT-APPELLANT:                                    Melissa A. Tuohey, Assistant Federal
                                                            Public Defender, for Lisa A. Peebles,
                                                            Federal Public Defender, Northern
                                                            District of New York, Syracuse, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Brenda K. Sannes, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the August 17, 2017 judgment of the District Court be and
hereby is AFFIRMED.

        Defendant-Appellant Joseph Gill (“Gill”) appeals from a judgment of the District Court
sentencing him principally to 121 months’ imprisonment for receipt of child pornography in
violation of 18 U.S.C. § 2252A(a)(2)(A). Gill challenges his sentence as substantively unreasonable.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.

        We review sentences for both procedural and substantive reasonableness, applying a
“deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
(en banc) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)) (internal quotation marks omitted). A
sentence is substantively unreasonable only “where the trial court’s decision ‘cannot be located
within the range of permissible decisions.’” Id. (quoting United States v. Rigas, 490 F.3d 208, 238 (2d
Cir. 2007)). The purpose of our review is not to substitute our view for that of the District Court, id.,
but to “provide a backstop for those few cases that, although procedurally 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).

        On review, we conclude that Gill’s sentence is substantively reasonable. During the
sentencing hearing, the District Court weighed the factors set forth in 18 U.S.C. § 3553(a),
considering the serious nature of the offense; the length of time that Gill engaged in prohibited
conduct; Gill’s use of a peer-to-peer file sharing service, which enabled others to access files stored
on his computer; and mitigating factors such as Gill’s limited criminal record, history of

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employment, and age. The District Court also considered Gill’s “frequent contact” with two girls,
eight and eleven years old, which Gill reported to the United States Probation Office (“Probation
Office”). J.A. 96. Though Gill objected to the inclusion of this information in his Pre-Sentence
Report and “denie[d] having any inappropriate or sexual contact with minors,” id. at 86, he did not
suggest that the information he provided to the Probation Office was inaccurate, or that the Pre-
Sentence Report mischaracterized his account. Having reviewed the information available to the
District Court, we cannot say that Gill’s sentence “was shockingly high . . . or otherwise
unsupportable as a matter of law.” Rigas, 583 F.3d at 123.

         Gill’s reliance on our decisions in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) and
United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) is misplaced. In this case, unlike in both Dorvee
and Jenkins, neither the advisory range under the United States Sentencing Guidelines nor Gill’s
sentence was “near or exceeding the statutory maximum.” Dorvee, 616 F.3d at 186 (sentence of 240
months’ incarceration substantively unreasonable); Jenkins, 854 F.3d at 184 (sentence of 225 months’
incarceration substantively unreasonable); see also 18 U.S.C. § 2252A(b)(1) (providing for mandatory
minimum sentence of 60 months’ incarceration and maximum sentence of 240 months’
incarceration). In addition, unlike in Jenkins, the District Court was presented with evidence that Gill
“engaged in . . . ‘sexually dangerous behavior’ separate from his crime[ ] of conviction.” Jenkins, 854
F.3d at 190; see also Dorvee, 616 F.3d at 184 (“Dorvee appears to have been punished as though he
already had, or would, sexually assault a child, despite medical testimony to the contrary and
Dorvee’s lack of any such criminal history.”). Finally, the District Court explicitly acknowledged the
“concerns about the child pornography Guideline” that we voiced in Dorvee. J.A. 96. But, given its
review of the “specific offense characteristics applicable in this case,” the District Court concluded
that a sentence of 121 months’ incarceration was “sufficient but not greater than necessary to
comply with the purposes of sentencing in 18 U.S.C. § 3553(a)(2).” Id. at 98. Given the facts of this
case, this was “within the range of permissible decisions.” Cavera, 550 F.3d at 189 (quoting Rigas, 490
F.3d at 238).

        We have reviewed all of the arguments raised by Gill on appeal and find them to be without
merit. For the foregoing reasons, we AFFIRM the August 17, 2017 judgment of the District Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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