16-2636,
United States v. Chase

                    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 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
5th day of June, two thousand Seventeen.

PRESENT: DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.

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UNITED STATES OF AMERICA,
         Appellee,

             -v.-                                                  16-2636

BROK JAMES CHASE,
         Defendant-Appellant.

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FOR APPELLANT:                                 MELISSA A. TUOHEY, Assistant
                                               Federal Public Defender, for
                                               Lisa A. Peebles, Federal
                                               Public Defender, Syracuse,
                                               NY.


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FOR APPELLEE:                     MICHAEL GADARIAN (Rajit S.
                                  Dosanjh, Lisa M. Fletcher, on
                                  the brief), Assistant United
                                  States Attorney, for Richard
                                  S. Hartunian, 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 (Sannes, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

     Defendant-appellant Brok James Chase pleaded guilty to
four counts of sexual exploitation of a child for the purpose
of producing child pornography, in violation of 18 U.S.C.
§ 2251(a). The exploitation counts are based on repeated and
horrific sexual abuse of his young stepdaughter. The United
States District Court for the Northern District of New York
(Sannes, J.) sentenced Chase principally to fifty years’
imprisonment. Chase appeals his sentence, asserting that it
was both procedurally and substantively unreasonable. We
assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     We review a district court’s sentence for procedural and
substantive reasonableness, which amounts to review for abuse
of discretion. United States v. Cavera, 550 F.3d 180, 187 (2d
Cir. 2008) (en banc). “A district court commits procedural
error where it fails to calculate the Guidelines range . . . ,
makes a mistake in its Guidelines calculation, or treats the
Guidelines as mandatory.” Id. at 190. It also errs
procedurally if it does not consider the factors set forth in
18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous
finding of fact, or fails to adequately explain its chosen
sentence. Id.

     A sentence is substantively unreasonable if it “cannot be
located within the range of permissible decisions.” Id. at


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189. “[O]nly those sentences that are so ‘shockingly high,
shockingly low, or otherwise unsupportable as a matter of law’
that allowing them to stand would ‘damage the administration
of justice’” are substantively unreasonable. United States v.
Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)).

     1. Chase argues procedural error on two grounds. First,
he contends that the court abused its discretion by refusing
to depart downward due to his mental and emotional conditions
pursuant to U.S.S.G. § 5H1.3.

     “Claims that the district court erred in refusing to depart
are not cognizable on appeal in the absence of substantial
indication that the district judge believed she lacked
authority to depart or an indication that a violation of the
law occurred.” United States v. Jackson, 658 F.3d 145, 153-54
(2d Cir. 2011); see United States v. Robinson, 799 F.3d 196,
201 (2d Cir. 2015) (“[A] district court’s decision not to depart
from the Guidelines is generally unreviewable, unless it
misunderstood its authority to do so.”).

     Nothing in this record suggests that the district court
misunderstood its authority to depart or that the sentence was
otherwise illegal. In fact, the district court explicitly
acknowledged its authority to depart downward based on Chase’s
mental and emotional conditions and declined to exercise this
authority after carefully considering the circumstances of
Chase’s case. Accordingly, we lack jurisdiction to review this
decision. See United States v. Stinson, 465 F.3d 113, 114 (2d
Cir. 2006) (per curiam) (“[I]n the post-Booker sentencing
regime . . . review of [the denial of a downward departure] will
be available only when a sentencing court misapprehended the
scope of its authority to depart or the sentence was otherwise
illegal.” (quotation marks omitted)).

     2. Chase’s second procedural challenge is that the
district court failed to satisfy its stated objective of
imposing a below-Guidelines sentence.

     The Guidelines offense level for Chase’s criminal conduct
yielded a recommended -- and here undisputed -- sentence of life

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imprisonment. However, because the statutory maximum for each
of the four counts of conviction was thirty years, the
Presentence Investigation Report, adopted by the district
court, stacked the statutory maximums to arrive at a recommended
Guidelines sentence of 120 years’ imprisonment. After
analyzing the factors set forth in § 3553(a), the district court
rejected the Guidelines sentence as excessive and imposed a
sentence of fifty years.

     Chase argues that this fifty-year term (at the conclusion
of which he will be in his seventies) is effectively a life
sentence, and, therefore, does not achieve the district court’s
desired below-Guidelines result. Because he failed to raise
this objection in the district court, we review for plain error.1
See United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir.
2007). We identify no error, plain or otherwise.

     Chase’s sentence is below the Guidelines, which the
district court properly calculated to be 120 years’
imprisonment. Section 5G1.2(d) of the Guidelines authorizes
courts to stack statutory maximums, as the district court did,
to reach a term of years equivalent to a life sentence. See
United States v. Brown, 843 F.3d 74, 82 (2d Cir. 2016) (holding
that the district court correctly applied § 5G1.2(d) by stacking
statutory maximums for 110-year sentence). Specifically, §
5G1.2(d) states that “[i]f the sentence imposed on the count
carrying the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of the other
counts shall run consecutively, but only to the extent necessary
to produce a combined sentence equal to the total punishment.”
U.S.S.G. § 5G1.2(d). Chase submits that because the “total
punishment” of life in prison could be achieved by a sentence
less than 120 years, the district court should have calculated
his Guidelines sentence using average life expectancy data. He

1
  Under plain error review, a defendant must “demonstrate that
(1) there was error, (2) the error was plain, (3) the error
prejudicially affected his substantial rights, and (4) the
error seriously affected the fairness, integrity or public
reputation of judicial proceedings.” United States v. Cook,
722 F.3d 477, 481 (2d Cir. 2013).

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cites no authority supporting such an approach, and we see no
reason to adopt it.

     In any event, fifty years is not the same as life. With
his release expected at the age of seventy-two, Chase’s sentence
allows for the real possibility that he will outlive his prison
term. Thus, regardless of whether the measure is 120 years or
life, Chase received the below-Guidelines sentence intended by
the district court.

     3. Chase claims that the sentence is substantively
unreasonable because it fails to properly account for the need
to provide him with mental health and sex offender treatment
in the most effective manner, as prescribed by 18 U.S.C.
§ 3553(a)(2)(D). He contends that such treatment is best
provided outside of prison.

     The district court did not abuse its discretion in
sentencing Chase to fifty years’ imprisonment. This sentence
was the result of careful consideration of the § 3553(a) factors
and the circumstances of Chase’s case. The court imposed a long
period of incarceration not because it was oblivious to the need
to provide appropriate treatment -- that need was explicitly
recognized -- but because it concluded that other
considerations militated in favor of significant
incapacitation, deterrence, and punishment. Those
considerations included: the extreme and heinous nature of the
sexual abuse; the prolonged period of abuse; the victim’s age
(four to six years old during that period); Chase’s efforts to
opt the victim out of child abuse programming at school; his
deletion of evidence stored on his computer when agents arrived
at his home; his large collection of child pornography; and his
sharing of child pornography over a peer-to-peer network. See
Cavera, 550 F.3d at 191 (“[W]e do not consider what weight we
would ourselves have given a particular factor. Rather, we
consider whether the factor, as explained by the district court,
can bear the weight assigned it under the totality of
circumstances in the case.” (citation omitted)).

     Given the seriousness of Chase’s crimes and the broad range
of permissible decisions available to the district court, we


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cannot conclude that his sentence was unreasonable.2

     Accordingly, the judgment of the district court is hereby
AFFIRMED.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




2
  We note that fifty years’ incarceration is in line with other
cases involving severe sexual abuse of children. See, e.g.,
Brown, 843 F.3d 74 (sixty years); United States v. Hamilton,
548 F. App’x 728 (2d Cir. 2013) (summary order) (150 years);
United States v. Ketcham, 507 F. App’x. 42 (2d Cir. 2013)
(summary order) (sixty years).

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