16-2906-cr
United States v. Werner

                            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 Courthouse, 40 Foley Square, in the City of New York, on the 1st day of
November, two thousand seventeen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                       v.                                            No. 16-2906-cr

EDWARD WERNER,

         Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                               DEVIN MCLAUGHLIN, Langrock Sperry
                                                       & Wool, LLP, Middlebury, VT.


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For Appellee:                                            PAUL D. SILVER (Solomon B. Shinerock,
                                                         on the brief), for Grant C. Jaquith,
                                                         Acting United States Attorney for the
                                                         Northern District of New York, Albany,
                                                         NY.


       Appeal from the United States District Court for the Northern District of New York

(D’Agostino, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Edward Werner appeals from the judgment of the United States District Court

for the Northern District of New York (D’Agostino, J.) sentencing him to 121 months’

imprisonment, 15 years of supervised release, and a $3,000 fine for receipt of child pornography

in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1), 2256(8). Werner was investigated by law

enforcement officials for having accessed a child pornography website. During questioning by

law enforcement, Werner voluntarily provided a written statement admitting that he had, on

numerous occasions, engaged in sexual contact with his three daughters when they were infants.

The statement also indicated that Werner had rubbed the legs, arms, and thighs of seven of his

daughters’ friends when they were about seven or eight years old. Werner pleaded guilty to

receipt of child pornography pursuant to a plea agreement. The probation office, and the district

court at sentencing, calculated a Sentencing Guidelines range of 121 to 151 months’

imprisonment, based on a total offense level of 32 and a criminal history category of I. We

assume the parties’ familiarity with the remaining facts and the procedural history of the case.

       First, Werner argues that the district court erred in determining that it could not depart

downward under U.S.S.G. § 5K2.16 (“Voluntary Disclosure of Offense”). “The district court’s
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interpretation and application of the Sentencing Guidelines is a question of law, which we review

de novo.” United States v. Kent, 821 F.3d 362, 368 (2d Cir. 2016). U.S.S.G. § 5K2.16 reads as

follows:

       If the defendant voluntarily discloses to authorities the existence of, and accepts
       responsibility for, the offense prior to the discovery of such offense, and if such
       offense was unlikely to have been discovered otherwise, a downward departure
       may be warranted. For example, a downward departure under this section might
       be considered where a defendant, motivated by remorse, discloses an offense that
       otherwise would have remained undiscovered. This provision does not apply
       where the motivating factor is the defendant’s knowledge that discovery of the
       offense is likely or imminent, or where the defendant’s disclosure occurs in
       connection with the investigation or prosecution of the defendant for related
       conduct.

Werner contends that he should have received a downward departure under U.S.S.G. § 5K2.16

for the voluntary disclosure of his abuse of his daughters. However, as his counsel conceded

during oral argument, Werner’s “disclosure occur[red] in connection with the investigation or

prosecution of [Werner] for related conduct,” id., namely his receipt of child pornography.

Therefore, based on this concession, Werner was not eligible for a downward departure under

U.S.S.G. § 5K2.16.

       Second, Werner argues that the district court erred in applying a Guidelines enhancement

for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor”

pursuant to U.S.S.G. § 2G2.2(b)(5). Yet in Werner’s plea agreement, he stipulated to having

“engaged in a pattern of activity involving the sexual abuse and exploitation of a minor within

the meaning of U.S.S.G. § 2G2.2(b)(5).” Def.-Appellant App. 19. The government argues that

Werner has thus waived his claim that the § 2G2.2(b)(5) enhancement does not apply, while

Werner argues for the application of the “plain error” standard. We need not resolve the question


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of which standard of review applies, because even if plain error review applies, the district court

did not plainly err in applying the § 2G2.2(b)(5) enhancement. Plain error review requires that:

         (1) there is an error; (2) the error is clear or obvious, rather than subject to
         reasonable dispute; (3) the error affected the appellant’s substantial rights, which
         in the ordinary case means it affected the outcome of the district court
         proceedings; and (4) the error seriously affects the fairness, integrity or public
         reputation of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 262 (2010) (brackets and internal quotation marks

omitted). Here, Werner acknowledges that his abuse of his daughters qualified as “sexual abuse

or exploitation” within the meaning of the § 2G2.2(b)(5) enhancement. The district court applied

the § 2G2.2(b)(5) enhancement based partially on this very conduct. Any error in applying this

enhancement based also on Werner’s conduct with his daughters’ friends was therefore harmless

and did not affect Werner’s substantial rights. Additionally, the fact that Werner’s abuse of his

daughters occurred several years before his offense of conviction does not preclude the

application of § 2G2.2(b)(5). See United States v. Reingold, 731 F.3d 204, 223–24 (2d Cir.

2013).

         Third, Werner argues that his sentence is substantively unreasonable. A sentence is

substantively unreasonable if it is “outside the range of permissible decisions,” United States v.

Park, 758 F.3d 193, 200 (2d Cir. 2014) (per curiam), 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. Douglas, 713 F.3d 694, 700 (2d

Cir. 2013) (alteration in original) (internal quotation marks omitted). Although Werner was a

first-time offender whose offense was receipt of child pornography, the district court took note of

the seriousness of Werner’s conduct in viewing specific types of images, as well as Werner’s

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behavior with his daughters and their friends. Moreover, the district court in this case explicitly

considered Werner’s argument at sentencing that the Guidelines enhancements that had raised

his base offense level were problematic, and the court decided that in Werner’s case, the

application of these enhancements was appropriate. Further, it is not the case, as in Jenkins, that

Werner did not “contact[] or attempt[] to contact a child or . . . engage[] in any sexually

dangerous behavior separate from his crimes of conviction.” United States v. Jenkins, 854 F.3d

181, 190 (2d Cir. 2017) (internal quotation marks omitted). Based on the record in this case, we

cannot conclude that the district court’s sentence falls “outside the range of permissible

decisions.” Park, 758 F.3d at 200. Consequently, we reject Werner’s substantive reasonableness

challenge to his sentence.

       We have considered all of Werner’s remaining arguments and find in them no basis for

vacatur. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.



                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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