14-501-cr
United States v. McGowan


                            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, 40 Foley Square, in the City of New
York, on the 29th day of June, two thousand fifteen.

PRESENT: RALPH K. WINTER,
                 PIERRE N. LEVAL,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                              No. 14-501-cr

MICHAEL J. MCGOWAN,
                  Defendant-Appellant,

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FOR APPELLANT:                                   James I. Glasser, Wiggin and Dana LLP, New
                                                 Haven, Connecticut.

FOR APPELLEE:                                    Emily Berger, Allen L. Bode, Assistant United
                                                 States Attorneys, for Kelly T. Currie, Acting
                                                 United States Attorney for the Eastern District
                                                 of New York, Brooklyn, New York.




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       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sandra J. Feuerstein, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 6, 2014, is AFFIRMED.

       Defendant Michael McGowan stands convicted after guilty pleas to three counts

of sexual exploitation of children based on his abuse of three minors ages 10 to 13, which

he recorded. See 18 U.S.C. § 2251(a), (d). McGowan was sentenced to consecutive,

statutory-maximum prison terms of 360 months on each count, to follow an undischarged

240-month term imposed by the same judge in 2006, after McGowan’s guilty plea to

attempted receipt of child pornography. See 18 U.S.C. § 2252A(a)(2)(A). On appeal,

McGowan argues that (1) his sentence is both procedurally and substantively

unreasonable, (2) counsel provided ineffective assistance by failing to seek a three-level

reduction of his Guidelines offense level for acceptance of responsibility, and (3) the case

should be remanded to a different judge for resentencing.         We assume the parties’

familiarity with the facts and the record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Reasonableness Challenge to Sentence

       We review a challenged sentence for “‘reasonableness,’ ‘a particularly deferential

form of abuse-of-discretion review’ that we apply both to the procedures used to arrive at

the sentence (procedural reasonableness) and to the length of the sentence (substantive

reasonableness).”   United States v. Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012)

(quoting United States v. Cavera, 550 F.3d 180, 188 & n.5 (2d Cir. 2008) (en banc)).

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          a. Procedural Reasonableness

       McGowan argues that the district court committed procedural error by failing to

(1) calculate his Guidelines range correctly; (2) rule on a specific concurrency

application; (3) consider all the 18 U.S.C. § 3553(a) factors, including the parsimony

clause; and (4) explain the reasons for its sentence. Because McGowan raised none of

these issues to the district court, we review for plain error, see United States v.

Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007), a standard requiring (1) error, (2) that is

clear or obvious, (3) affecting substantial rights, and (4) calling into question the fairness,

integrity, or public reputation of judicial proceedings, see United States v. Marcus, 560

U.S. 258, 262 (2010). We identify no such error.

       First, the Government concedes Guidelines calculation error insofar as the district

court identified a Guidelines “range” of life imprisonment, which was greater than the

90-year statutory maximum. See United States v. Dorvee, 616 F.3d 174, 180–81 (2d

Cir. 2010); see also U.S.S.G. § 5G1.2(d). But given that McGowan was 40 years old

when sentenced, he cannot show that the error affected either his substantial rights or the

fairness and public reputation of judicial proceedings. See United States v. Marcus, 560

U.S. at 262 (stating that error must be “prejudicial” to affect substantial rights, meaning

“there must be a reasonable probability that the error affected the outcome” of the

proceeding); see also id. at 266.1



1
  We have already made this point summarily in other cases presenting similar
procedural error. See, e.g., United States v. Ketcham, 507 F. App’x 42, 44 (2d Cir.
2013) (summary order).

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       Second, in exercising its discretion to impose a sentence “concurrently, partially

concurrently, or consecutively,” U.S.S.G. § 5G1.3(d), a district judge is under no

obligation to make individualized findings. See United States v. Velasquez, 136 F.3d

921, 924 (2d Cir. 1998); United States v. Margiotti, 85 F.3d 100, 105 (2d Cir. 1996).

Moreover, “we never have required a District Court to make specific responses to points

argued by counsel in connection with sentencing.” United States v. Wagner-Dano, 679

F.3d 83, 89 (2d Cir. 2012). Thus, we identify no error in the district court’s imposition

of consecutive sentences without specifically ruling on a request for concurrency. In

any event, McGowan does not explain how the district court erred in its application of

U.S.S.G. § 5G1.3(d), or how any such error affected his substantial rights. He thus fails

to demonstrate plain error.

       Third, McGowan’s claims that the district court failed to consider § 3553(a)

factors or to explain its sentence are belied by the record. It shows that the district court

expressly stated that it had “taken into account all of the submissions, [the] comments

made here today, and particularly the 3553 factors,” and that the sentence imposed was

necessary “to afford adequate punishment for the crimes committed,” general deterrence

to the public, and specific deterrence to McGowan, “who . . . despite his protestations to

the contrary . . . has shown no inclination to no longer engage in this type of behavior.”

App. 216; see id. (further noting that sentence afforded protection “from further crimes

by this defendant”).   Even if the district court “might have said more,” Rita v. United

States, 551 U.S. 338, 359 (2007), its statements sufficed under our precedent, see, e.g.,

United States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (presuming, in “absence of

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record evidence suggesting otherwise, that a sentencing judge has faithfully discharged

her duty to consider the statutory factors . . . , and we will not conclude that a district

judge shirked her obligation to consider the § 3553(a) factors simply because she did not

discuss each one individually or did not expressly parse or address every argument

relating to those factors that the defendant advanced.”); see also United States v.

Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006) (requiring clear showing of district

court’s belief that “lower sentence would be equally effective in advancing the purposes

set forth in § 3553(a)(2)” before holding sentence invalid under parsimony clause).

        Accordingly, we identify no plain error in the procedures used to arrive at the

challenged sentence.

           b. Substantive Reasonableness

        McGowan argues that his 90-year sentence is substantively unreasonable because

other   child   sex    offenders—whom      McGowan      characterizes   as   “significantly

worse”—have received lower sentences.        Appellant’s Br. 37.     Where, as here, the

district court explicitly considered such an argument in imposing sentence, we will not

second guess the weight it assigns to it “as long as the sentence ultimately imposed is

reasonable in light of all the circumstances presented.” United States v. Fernandez, 443

F.3d at 32 (recognizing that “weight to be afforded any given argument made pursuant to

one of the § 3553(a) factors is a matter firmly committed to the discretion of the

sentencing judge” and generally is beyond appellate review); see United States v. Cavera,

550 F.3d at 189 (stating that district court’s substantive sentencing determination will be

set aside only in exceptional cases where the trial court’s decision “cannot be located

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within the range of permissible decisions” (internal quotation marks omitted)); United

States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008) (recognizing that broad range of

sentences can be reasonable in particular case). Here, the record reveals that McGowan,

a former federal air marshal, himself sexually abused three minor children between the

ages of 10 and 13; recorded and retained dozens of images of that abuse; amassed a

collection of more than 1,000 additional images of child pornography, including images

of children as young as 5; and, from prison, solicited victims’ assistance in destroying

evidence of these crimes and in securing a victim’s recantation of statements inculpating

McGowan in child sexual abuse. Under these circumstances, we cannot conclude that

the challenged sentence was so shocking as to be “unsupportable as a matter of law.”

United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). Accordingly, McGowan’s

challenge to the reasonableness of his sentence fails on the merits.

2.     Ineffective Assistance of Counsel

       McGowan faults his counsel for failing to seek a mitigation adjustment of his

offense level for acceptance of responsibility.       Although we generally prefer that

ineffective assistance claims be raised under 28 U.S.C. § 2255, see Massaro v. United

States, 538 U.S. 500, 504 (2003), we conclude that McGowan’s claim is properly

addressed on direct appeal because no development of the record is necessary to conclude

that the alleged omission fails to satisfy the prejudice requirement of Strickland v.

Washington, 466 U.S. 668, 690, 694 (1984). See United States v. Wellington, 417 F.3d

284, 288 (2d Cir. 2005) (denying ineffective assistance claim on direct review). As

already noted, McGowan endeavored to obstruct justice, see U.S.S.G. § 3C1.1 cmt. n.4,

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conduct precluding acceptance of responsibility credit in the absence of “extraordinary”

circumstances, U.S.S.G. § 3E1.1 cmt. n.4. McGowan having failed to demonstrate such

circumstances here, we reject his ineffective assistance claim as meritless.

3.     Conclusion

       We have considered McGowan’s remaining arguments, and we conclude that they

are without merit. 2     Accordingly, the judgment of conviction and sentence is

AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




2
   Because we affirm the challenged sentence, McGowan’s request that his case be
transferred to a different district judge on remand is moot.

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