18-572-cr (L)
United States v. Burghardt

                             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, at 40 Foley Square, in the City of New York, on
the 24th day of January, two thousand nineteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         PETER W. HALL,
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

                             Appellee,

                             v.                                           Nos. 18-572-cr, 18-626-cr

KENNETH BURGHARDT,

                     Defendant-Appellant.
____________________________________________

For Defendant-Appellant:                 Lisa A. Peebles, Federal Public Defender, Melissa A.
                                         Tuohey, Assistant Federal Public Defender, Office of the
                                         Federal Public Defender, Syracuse, NY.

For Appellee:                            Lisa M. Fletcher, Michael D. Gadarian, Assistant United
                                         States Attorneys, for Grant C. Jaquith, United States
                                         Attorney for the Northern District of New York, Syracuse,
                                         NY.
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Mordue, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Kenneth Burghardt appeals from an order of the United States District Court for the

Northern District of New York (Mordue, J.) entered February 14, 2018 that, on remand from this

Court, adhered to judgments of conviction entered March 28, 2016 and March 30, 2016,

imposing consecutive sentences of 262 months’ imprisonment for charges of distribution and

receipt of child pornography and 60 months’ imprisonment for the violation of supervised

release stemming from the same underlying conduct. We assume the parties’ familiarity with the

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

       On October 10, 2008, Burghardt pled guilty to one count of attempting to receive

material containing child pornography. On February 17, 2009, the district court sentenced him to

87 months’ imprisonment and lifetime supervised release. On February 25, 2015, less than a year

after his release from custody, the probation office filed a petition alleging that Burghardt had

violated conditions of his supervised release, including by distributing and receiving child

pornography. A federal grand jury in the Northern District of New York then indicted Burghardt

on five counts each of distributing and receiving child pornography. Burghardt pled guilty to all

ten counts. On March 21, 2016, the district court sentenced Burghardt on these new criminal

offenses to 262 months’ imprisonment, the minimum in the Guidelines range, and lifetime

supervised release. That same day, Burghardt pled guilty to the violation of supervised release in

the petition that alleged the commission of new criminal conduct. The district court sentenced

Burghardt to 60 months’ imprisonment for that violation—the statutory mandatory minimum,



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see 18 U.S.C. § 3583(k)—to run consecutively with his sentence for the new criminal charges.

Burghardt timely appealed both sentences, arguing that they were procedurally and substantively

unreasonable.

       On July 11, 2017, this Court concluded that the sentences were procedurally reasonable

but declined to reach whether the sentences were substantively reasonable, instead remanding for

the district court to enhance the record as to its consideration of the cumulative effect of the

overlapping Guidelines enhancements applicable to Burghardt’s criminal offenses and its reason

for imposing consecutive sentences for the new criminal charges and the violation of supervised

release. United States v. Burghardt, 702 F. App’x 4, 7 (2d Cir. 2017) (summary order).

Thereafter, the district court issued a written opinion addressing this Court’s concerns and

finding “no basis on remand to resentence” Burghardt. App. 239. The district court clarified that

it was “aware” of the “interplay and effect of the various enhancements under the Guidelines and

the Court’s authority to issue a non-Guidelines sentence.” Id. at 235. The district court re-stated

its reasons for finding the sentences reasonable under 18 U.S.C. § 3553(a), including that

Burghardt had a “high risk of recidivism” and posed a “danger to the community,” which made

262 months’ imprisonment appropriate. Id. at 236. The district court also emphasized, with

respect to the sentence on Burghardt’s violation of supervised release, that “there must be

consequences for Defendant’s flagrant breach of trust with his probation officer and the terms of

his release.” Id. at 238. Burghardt timely appealed.

       In this second appeal, Burghardt argues again that his combined sentence was

substantively unreasonable. “Reasonableness review is similar to review for abuse of discretion

and may require reversal when the district court’s decision ‘cannot be located within the range of

permissible decisions’ or is based on a legal error or clearly erroneous factual finding.” United



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States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007) (quoting United States v. Sindima, 488

F.3d 81, 85 (2d Cir. 2007)). “Substantive reasonableness involves the length of the sentence

imposed in light of the factors enumerated under 18 U.S.C. § 3553(a).” Id. A sentence is

substantively unreasonable if it is “outside the range of permissible decisions,” so that

“‘affirming it would 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. Park, 758 F.3d 193, 200 (2d Cir. 2014) (per curiam) (quoting United States v. Douglas, 713

F.3d 694, 700 (2d Cir. 2013)). “The standard of review on the appeal of a sentence for violation

of supervised release is now the same standard as for sentencing generally: whether the sentence

imposed is reasonable.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005).

       Burghardt argues that his combined sentence was substantively unreasonable because (i)

the mandatory minimum term of fifteen years for the new offense conduct would have been

sufficient to address the district court’s concerns and (ii) the consecutive term of five years’

imprisonment for the supervised release violation, which addressed the same behavior

underlying his new offense conduct, was excessive and arbitrary. Because substantive

reasonableness review is not intended to substitute this Court’s evaluation of the

§ 3553(a) factors for the district court’s, United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

2008) (en banc), we cannot find that the sentences fell “outside the range of permissible

decisions.” Park, 758 F.3d at 200.

       Although we do not presume that within-Guidelines sentences are reasonable when we

review them substantively, see United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010), we

note that Burghardt’s sentences were within-Guidelines sentences. The sentence on Burghardt’s

new criminal charges was at the bottom of the Guidelines range, the sentence on his violation of



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supervised release was the statutory minimum, and the Guidelines recommend that “[a]ny term

of imprisonment imposed upon the revocation of . . . supervised release shall be ordered to be

served consecutively to any sentence of imprisonment that the defendant is serving, whether or

not the sentence of imprisonment being served resulted from the conduct that is the basis of the

revocation of . . . supervised release,” U.S.S.G. § 7B1.3(f). Moreover, the district court did not

mechanically impose the sentences. Rather, the district court properly conducted an independent

review of the § 3553(a) factors, noting, among other things, that Burghardt committed the instant

offense after less than eight months on supervised release, rejected the importance of treatment

while attending court-mandated sex offender treatment, traded material with more than 100

individuals on the internet during a one-month period, and discussed sexually abusing his

girlfriend’s ten year-old daughter in online conversations. The district court also explained that

Burghardt’s “flagrant breach of trust with his probation officer and the terms of his release,”

App. 238—which included lying to his probation officer during a home visit—warranted

separate punishment.

       We have considered all of Burghardt’s remaining contentions and have found in them no

basis for reversal. Accordingly, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:

                                              CATHERINE O’HAGAN WOLFE, CLERK




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