     12-1295-cr
     United States v. Bourque

                                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, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 5th day of April, two thousand thirteen.
 4
 5           PRESENT: BARRINGTON D. PARKER,
 6                            RAYMOND J. LOHIER, JR.,
 7                            SUSAN L. CARNEY,
 8                                    Circuit Judges.
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10
11           UNITED STATES OF AMERICA,
12
13                                            Appellee,
14
15                                    v.                                          No. 12-1295-cr
16
17           DAVID L. BOURQUE,
18
19                                            Defendant-Appellant.
20
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22           FOR APPELLANT:                   RICHARD ROY BROWN, Brown Paindiris & Scott, LLP,
23                                            Hartford, CT.
24
25           FOR APPELLEE:                    RAYMOND F. MILLER, Assistant United States Attorney
26                                            (Robert M. Spector, Assistant United States Attorney,
27                                            on the brief), for David B. Fein, United States Attorney
28                                            for the District of Connecticut, New Haven, CT.

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 1          Appeal from a judgment of the United States District Court for the District of
 2   Connecticut (Alvin W. Thompson, Chief Judge).
 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
 4   AND DECREED that the judgment of the District Court is AFFIRMED.
 5          Defendant-Appellant David Bourque appeals from a sentence of 120 months’
 6   incarceration and 120 months’ supervised release, imposed after he pleaded guilty
 7   pursuant to a written plea agreement to receipt and distribution of child pornography.
 8   Bourque argues that his sentence was substantively unreasonable because (1) the District
 9   Court’s methodology was inconsistent with 18 U.S.C. § 3553 and our holding in United
10   States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), (2) the District Court improperly
11   compared Bourque’s case to ones involving simple possession, and (3) the District Court
12   failed to give appropriate weight to mitigating evidence. We assume the parties’
13   familiarity with the facts and record of the prior proceedings, to which we refer only as
14   necessary to explain our decision to affirm.
15          When reviewing a District Court’s sentence for substantive reasonableness, we
16   will reverse “only in exceptional cases where the trial court’s decision cannot be located
17   within the range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189
18   (2d Cir. 2008) (en banc) (quotation marks omitted). In Dorvee, we recognized that
19   United States Sentencing Guidelines § 2G2.2, which applies to Bourque’s offense, is an
20   “eccentric Guideline of highly unusual provenance which, unless carefully applied, can
21   easily generate unreasonable results.” 616 F.3d at 188. We therefore apply particular
22   scrutiny to sentences based on Guidelines § 2G2.2.
23          Although Bourque does not dispute that the District Court correctly calculated the
24   Guidelines range of 210 to 240 months’ imprisonment, he maintains that the District
25   Court improperly assumed that this was a reasonable starting point to use for calculating
26   the downward departure based on the Government’s motion pursuant to Sentencing

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 1   Guidelines § 5K1.1. Here, the District Court acknowledged our observation in Dorvee
 2   that § 2G2.2 must be applied with great care. Id. at 188. After carefully reviewing each
 3   sentencing enhancement, the District Court determined that each was applied
 4   appropriately in Bourque’s case based on the nature of his conduct; it refrained from
 5   automatically applying enhancements merely because they technically applied under the
 6   Guidelines. For example, the District Court concluded that the enhancement for
 7   possessing 600 or more images was applied appropriately because Bourque possessed an
 8   “extraordinary” 22,282 images and 4,059 videos, and that the enhancement for possession
 9   of material that portrays sadistic or masochistic conduct was appropriate because Bourque
10   had actively sought out videos depicting the rape of children. The District Court
11   conducted similarly careful analyses of each enhancement to ensure that Bourque’s
12   conduct truly merited the enhancements.
13          Thereafter, the District Court noted that there was “room for argument” about
14   whether the Guidelines range was appropriate based only on the base offense level and
15   enhancements. Nevertheless, it found that there were several aggravating factors that
16   were not accounted for in the Guidelines calculation. Specifically, the District Court
17   found that Bourque used knowledge gained from his law enforcement experience to avoid
18   detection and to help others avoid detection, and that he knew the horrific consequences
19   for children depicted in child pornography based on his experience as a police officer
20   investigating these very crimes. The District Court also pointed out that, in his capacity
21   as a law enforcement officer, Bourque had asked an FBI Special Agent questions about
22   the various difficulties the FBI had encountered in infiltrating the online platform
23   Bourque himself was using to trade child pornography, conduct the District Court
24   described as “nothing short of outrageous.”
25          On this record, we find no error where, after carefully considering the § 3553
26   factors, the applicability of various sentencing enhancements, and aggravating factors not

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 1   accounted for by any enhancement, the District Court concluded that the Guidelines
 2   Range of 210 to 240 months was appropriate, and then applied a downward departure
 3   based on the Government’s motion pursuant to Guidelines § 5K1.1, resulting in a non-
 4   Guidelines sentence of 120 months’ imprisonment.
 5          Bourque also argues that the District Court improperly compared his case to cases
 6   involving mere possession, rather than receipt and distribution, of child pornography. We
 7   reject the argument. The District Court’s discussion of four post-Dorvee child
 8   pornography possession cases in which it had imposed sentence further evidenced the
 9   District Court’s understanding of the enhanced scrutiny warranted for sentences based on
10   § 2G2.2. Indeed, in each of those cases, the District Court imposed non-Guidelines
11   sentences because it found that the enhancements in § 2G2.2 were not appropriate. By
12   contrast, the District Court explained that Bourque’s case is “well outside the heartland of
13   the cases involving first-time offenders who have been convicted of receipt and
14   distribution . . . because it involves . . . much more serious conduct and involves a much
15   higher degree of culpability.” The District Court’s comparison of Bourque’s case to these
16   prior cases was not error, because § 2G2.2 applies to both possession offenses and receipt
17   and distribution offenses, and the District Court’s explanation demonstrated that it
18   carefully considered the individual circumstances of Bourque’s case.
19          Finally, Bourque argues that the District Court did not give proper weight to his
20   mitigation evidence. We reject this argument as well. Rather than concluding that
21   Bourque’s 30-year career as a police officer was a mitigating factor, the District Court
22   regarded it as an “aggravating” factor because Bourque used his knowledge as an officer
23   to facilitate his crimes and because “as a law enforcement officer who had investigated”
24   child pornography offenses, Bourque, “more than the average citizen and more than the
25   typical offender, had an exposure to the horrific consequences for the long-lasting
26   physical and psychological harm to the children depicted in the[] images.” Moreover, the

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 1   District Court considered Dr. Lothstein’s report regarding Bourque’s post-traumatic stress
 2   disorder and was “not satisfied that Dr. Lothstein has established a nexus between the
 3   commission of the offense and the conditions that he identifies.”
 4          “If the ultimate sentence is reasonable and the sentencing judge did not commit
 5   procedural error in imposing that sentence, we will not second guess the weight (or lack
 6   thereof) that the judge accorded to a given factor or to a specific argument made pursuant
 7   to that factor.” United States v. Fernandez, 443 F.3d 19, 34 (2d Cir. 2006). We have no
 8   reason to conclude that the District Court failed to give appropriate weight to Bourque’s
 9   mitigating evidence.
10          We have considered Bourque’s remaining arguments and conclude that they are
11   without merit. For the foregoing reasons, the judgment of the District Court is
12   AFFIRMED.
13                                             FOR THE COURT:
14                                             Catherine O’Hagan Wolfe, Clerk of Court
15




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