     10-4978-cr
     United States v. Denis

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       United States of America,
14                Appellee,
15
16                    -v.-                                               10-4978-cr
17
18       Timothy Denis,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Lisa Peebles, Federal Public
23                                             Defender, Syracuse, New York
24                                             (James P. Egan, Federal Public
25                                             Defender, Syracuse, NY, on the
26                                             brief)
27
28       FOR APPELLEE:                         Lisa M. Fletcher and Rajit S.
29                                             Dosanjh, Assistant United States
30                                             Attorneys, Of Counsel, Syracuse,

                                                  1
1                                  NY; for Richard S. Hartunian,
2                                  United States Attorney, Northern
3                                  District of New York, Syracuse,
4                                  NY)
5
6
7        Appeal from a judgment of the United States District

8    Court for the Northern District of New York (Hurd, J.).

9

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

11   AND DECREED that the District Court’s judgment is AFFIRMED.

12

13       Defendant-Appellant, Timothy T. Denis, pleaded guilty

14   to production of child pornography.    He was sentenced to 262

15   months in prison, a lifetime term of supervision, and a

16   special assessment of $100.    Denis appeals the length of his

17   term of supervision.   We assume the parties’ familiarity

18   with the underlying facts, the procedural history of the

19   case, and the issues on appeal.

20       The Government argues that Denis has waived his right

21   to challenge the reasonableness of his term of supervised

22   release because he failed to object to it at the sentencing

23   proceeding.   We have not yet decided whether an unpreserved

24   challenge to the substantive reasonableness of a sentence

25   constitutes a waiver of appellate review.    See United States

26   v. Verkhoglyad, 516 F.3d 122, 134 (2d Cir. 2008).    We need


                                    2
1    not decide that question on this appeal, however, because

2    even under our ordinary standard of review, Denis cannot

3    demonstrate that the District Court abused its discretion in

4    imposing a life term of supervision.    See Gall v. United

5    States, 552 U.S. 38, 41 (2007) (holding that appellate

6    courts must review sentences for reasonableness under the

7    “deferential abuse-of-discretion standard”); accord United

8    States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

9    banc).   Denis raises a substantive challenge to his

10   supervision, meaning that he must show that his sentence

11   falls outside the “broad range” of sentences “that can be

12   considered reasonable under the totality of the

13   circumstances” and in light of “due deference [afforded] to

14   the district court’s exercise of judgment.”     United States

15   v. Jones, 531 F.3d 163, 174 (2d Cir. 2008); accord id. (“In

16   short, in determining substantive reasonableness, a

17   reviewing court will set aside only those outlier sentences

18   that reflect actual abuse of a district court’s considerable

19   sentencing discretion.”).   Denis cannot sustain this burden,

20   given (1) the particular circumstances of his offense; (2)

21   the Sentencing Commission’s recommendation of a maximum term

22   of supervision for sex offenders, U.S. SENTENCING GUIDELINES

23   MANUAL § 5D1.2(b)(2) (Policy Statement); (3) the statutory

24   authority to impose lifetime terms of supervision for child

                                    3
1    sex offenders in light of congressional findings that such

2    supervision is often necessary, 18 U.S.C. § 3583(k); H.R.

3    REP. NO. 108-66, at 49-50 (2003) (Conf. Rep.), reprinted in

4    2003 U.S.C.C.A.N. 684; (4) this Court’s authority upholding

5    such a term of supervision, see United States v. Hayes, 445

6    F.3d 536, 537 (2d Cir. 2006); and (5) the imposition of a

7    below-Guidelines term of incarceration in partial reliance

8    on lifetime supervision as a safeguard against recidivism.

9

10       We have considered all of Denis’s additional arguments

11   and find them to be without merit.   Accordingly, the

12   judgment of the District Court is AFFIRMED.

13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17




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