     18‐1406‐cr(L)
     United States v. Young


                                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 ASUMMARY ORDER@). A PARTY
CITING TO 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 for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 4th day of June, two thousand nineteen.
 4
 5          PRESENT: GUIDO CALABRESI,
 6                           GERARD E. LYNCH,
 7                           RAYMOND J. LOHIER, JR.,
 8                                   Circuit Judges.
 9          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10          UNITED STATES OF AMERICA,
11
12                            Appellee,
13
14                  v.                                                     Nos. 18‐1406‐cr(L),
15                                                                         18‐1867‐cr(CON)
16
17          BRENDON ALLAN YOUNG,
18
19                           Defendant‐Appellant.
20          ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
21          FOR APPELLANT:                                            STEVEN SLAWINSKI, Assistant
22                                                                    Federal Public Defender
 1                                                        (Melissa Baldwin, Assistant
 2                                                        Federal Public Defender, on the
 3                                                        brief), for Marianne Mariano,
 4                                                        Federal Public Defender,
 5                                                        Western District of New York,
 6                                                        Buffalo, NY.
 7
 8         FOR APPELLEE:                                  WEI XIANG, Assistant United
 9                                                        States Attorney (Mary C.
10                                                        Baumgarten, Assistant United
11                                                        States Attorney, on the brief), for
12                                                        James P. Kennedy, Jr., United
13                                                        States Attorney for the
14                                                        Western District of New York,
15                                                        Buffalo, NY.
16
17         Appeal from a judgment of the United States District Court for the Western

18   District of New York (Frank P. Geraci, Jr., Chief Judge).

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

20   AND DECREED that the judgment of the District Court is AFFIRMED IN PART

21   and VACATED AND REMANDED IN PART.

22         Brendon Allan Young appeals from a judgment of conviction of the District

23   Court (Geraci, C.J.). Young pleaded guilty without a plea agreement to two

24   counts of production of child pornography, one count of distribution of child

25   pornography, and one count of possession of child pornography involving a

26   prepubescent minor. Young was sentenced principally to a term of 420 months’
                                               2
 1   (35 years’) imprisonment, to run concurrently with his state court sentence of 30

 2   years’ imprisonment for the sexual assault of his then‐girlfriend’s minor

 3   daughter, who was also the victim of his federal production and distribution

 4   counts. The District Court also ordered Young to pay restitution in the amount

 5   of $1,000 to another victim depicted in one of the images Young possessed. On

 6   appeal, Young challenges both his sentence and the restitution order. We

 7   assume the parties’ familiarity with the underlying facts and the record of prior

 8   proceedings, to which we refer only as necessary to explain our decision to affirm

 9   the sentence but to vacate the restitution order and remand.

10         Young first claims that his sentence is procedurally unreasonable because

11   the District Court misapplied U.S.S.G. § 4A1.2 and erroneously calculated his

12   criminal history as Category III rather than Category I. Because Young did not

13   raise this claim in the District Court, we review for plain error. United States v.

14   Wernick, 691 F.3d 108, 113 (2d Cir. 2012). Although an incorrect Guidelines

15   range calculation is ordinarily plain error, Rosales‐Mireles v. United States, 138 S.

16   Ct. 1897, 1907–08 (2018), here any error in calculating Young’s criminal history

17   did not change the applicable Guidelines range. Young’s total offense level was


                                               3
 1   43, which in either Criminal History Category I or Category III results in a

 2   Guidelines recommendation of life imprisonment. However, because none of

 3   the crimes of conviction permit a life sentence, the Guidelines recommendation is

 4   converted to the statutory maximum for each count, run consecutively, which in

 5   this case is 1200 months’ (100 years’) imprisonment. See U.S.S.G. § 5G1.2(a);

 6   United States v. Corsey, 723 F.3d 366, 374–75 (2d Cir. 2013). Young was therefore

 7   not “sentenced under an incorrect Guidelines range,” and any error in the

 8   calculation of his criminal history category was harmless. Molina‐Martinez v.

 9   United States, 136 S. Ct. 1338, 1345 (2016); see United States v. Brown, 843 F.3d 74,

10   82 (2d Cir. 2016).

11         Young also contends that the District Court committed procedural error by

12   incorrectly finding that the images Young distributed online “will probably be out

13   there forever.” App’x 108; see United States v. DeSilva, 613 F.3d 352, 356 (2d Cir.

14   2010) (procedural error includes selecting a sentence based on clearly erroneous

15   facts). But Young sent the photographs to at least one individual by posting

16   them on the internet, where anyone could view them, and at least one individual

17   did view them. Child pornography posted on the internet can pose continuing


                                               4
 1   harm to the victim. See Paroline v. United States, 572 U.S. 434, 439–40 (2014).

 2   On this record, we are not left with the “definite and firm conviction” that the

 3   District Court made a mistake about the photographs Young posted. United

 4   States v. Molina, 106 F.3d 1118, 1121 (2d Cir. 1997) (quotation marks omitted).

 5         Young also contends that his 420‐month sentence is substantively

 6   unreasonable because the District Court accorded too much weight to the child

 7   pornography Guidelines. We are not persuaded. Young’s underlying conduct

 8   involved years‐long sexual abuse of a child, from approximately ages four to nine,

 9   documentation of that abuse, distribution of some of the photographs

10   documenting the abuse, and possession of other images of child pornography.

11   And the sentence Young received fell well below the Guidelines range and is five

12   years above the 30‐year sentence for which he advocated at sentencing.

13   Imposing an additional five years’ imprisonment to account for the harms of

14   possession, production, and distribution of child pornography was not outside

15   the range of permissible decisions. See Brown, 843 F.3d at 82–84.

16         Finally, Young asserts that the District Court’s restitution order in favor of

17   the victim in one of the photographs Young possessed was unconnected to any


                                               5
 1   losses to the victim that Young proximately caused. He argues that this was

 2   error under Paroline, 572 U.S. at 448, 459–60. The Government concedes that the

 3   District Court erred, and we agree. We therefore vacate the District Court’s

 4   restitution order and remand the case to the District Court for the limited purpose

 5   of conducting an analysis consistent with Paroline.1

 6         We have considered Young’s remaining arguments and conclude that they

 7   are without merit. For the foregoing reasons, the judgment of the District Court

 8   is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED.

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




     1The Government also agrees that Young’s classification as an offender in Criminal
     History Category III in the District Court’s Statement of Reasons was a scrivener’s error.
     On remand, the District Court should correct this error to reflect that Young was in
     Criminal History Category I.
                                                   6
