         09-3546-cr
         USA v. Swackhammer


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .


 1            At a stated term of the United States Court of                                      Appeals
 2       for the Second Circuit, held at the Daniel Patrick                                      Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                                      City of
 4       New York, on the 30 th day of November, two thousand                                    and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                       Appellee,
16
17                       -v.-                                                   09-3546-cr
18
19       MARK SWACKHAMMER,
20
21                                       Defendant-Appellant.
22
23
24       FOR APPELLANT:                  MARJORIE M. SMITH, Law Office of Marjorie
25                                       M. Smith, Piermont, NY.
26
27       FOR APPELLEE:                   PAUL D. SILVER, Assistant United States
28                                       Attorney, (Miroslav Lovric, Assistant
29                                       United States Attorney, on the brief),
30                                       for Richard S. Hartunian, United States
31                                       Attorney for the Northern District of New
32                                       York, Albany, NY.
33
1         Appeal from the United States District Court for the
2    Northern District of New York (McAvoy, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the District Court be

6    AFFIRMED.

7        Mark Swackhammer (“Appellant”) appeals from a judgment

8    of the United States District Court for the Northern

9    District of New York (McAvoy, J.), entered on August 19,

10   2009, following a guilty plea and sentencing him to 168

11   months imprisonment.   We assume the parties’ familiarity

12   with the underlying facts, the procedural history, and the

13   issues presented for review.

14       We review the sentence imposed by the District Court

15   for both substantive and procedural reasonableness.    United

16   States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

17   banc).   “Reasonableness review is akin to review for abuse

18   of discretion, under which we consider whether the

19   sentencing judge exceeded the bounds of allowable

20   discretion, committed an error of law in the course of

21   exercising discretion, or made a clearly erroneous finding

22   of fact.”   United States v. Williams, 475 F.3d 468, 474 (2d

23   Cir. 2007) (internal quotation marks and alterations

24   omitted).

                                    2
1        Appellant argues that his sentence was procedurally

2    unreasonable because the District Court did not reduce

3    Appellant’s offense level pursuant to U.S.S.G. § 2G2.2(b)(1)

4    and did not discuss U.S.S.G. § 5K2.16.     Appellant did not

5    qualify for a § 2G2.2(b)(1) reduction because his conduct

6    was not limited to receipt and solicitation and, based on

7    his use of file-sharing software, Appellant did not show

8    that he “did not intend to traffic in, or distribute” child

9    pornography.   As for U.S.S.G. § 5K2.16, the District Court’s

10   failure to discuss this provision was not error, especially

11   given the court’s clear acknowledgment of its authority to

12   reduce Appellant’s sentence.     See United States v. Sero, 520

13   F.3d 187, 192 (2d Cir. 2008).

14       Appellant also argues that his sentence was

15   substantively unreasonable because the District Court

16   allegedly failed to consider that the Sentencing Guidelines

17   do not provide empirical support for the length of sentences

18   in child pornography cases.     Appellant’s argument is

19   premised on a significant over-reading of our holding in

20   United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010).     To

21   reverse simply because the District Court did not conduct an

22   empirical analysis of the statistical support underlying the


                                     3
1    Sentencing Guidelines would reach far beyond the scope of

2    our substantive reasonableness review.   See United States v.

3    Rigas, 583 F.3d 108, 122-23 (2d Cir. 2009).     Further, Dorvee

4    is clearly distinguishable from this case because

5    Appellant’s sentence was not near or exceeding the statutory

6    maximum.   Further, unlike in Dorvee, Appellant’s criminal

7    conduct was not limited to possession of child pornography

8    alone; Appellant repeatedly molested his children.     Given

9    these circumstances, we conclude that the sentence was not

10   substantively unreasonable.

11       Appellant also urges the Court to vacate his sentence

12   because the District Court erroneously presumed that a

13   guideline sentence was a reasonable sentence.     See Nelson v.

14   United States, 555 U.S. ---, 129 S. Ct. 890, 892 (2009) (per

15   curium); United States v. Cavera, 550 F.3d 180, 189 (2d Cir.

16   2008) (en banc); United States v. Jones, 531 F.3d 163, 170

17   (2d Cir. 2008).   In support of this argument, Appellant

18   direct the Court to an excerpt from the sentencing colloquy

19   in which the District Court observed that “unless I can

20   articulate on the record some good cogent reason why the

21   Court should sentence the defendant outside the guidelines,

22   then I’m probably going to sentence him within the


                                   4
1    guidelines.”

2        This stray utterance cannot bear the weight Appellant

3    seeks to place on it.     To the contrary, “[w]e have held that

4    a single statement by a sentencing judge that, standing

5    alone, might be interpreted as a misapprehension that a

6    Guideline sentence should presumptively be imposed . . .

7    [can]not overcome the clear indication in the record that

8    the Court was well aware of its authority to impose a non-

9    Guideline sentence.”     United States v. Orozco Mendez, 371 F.

10   App’x 159, 160 (2d Cir. 2010) (citing United States v.

11   Fernandez, 443 F.3d 19, 33 (2d Cir. 2006)) (brackets in

12   original).     Here, a review of the complete transcript of the

13   sentencing hearing reveals that the District Court correctly

14   treated the guidelines as merely advisory in arriving at

15   Appellant’s sentence.

16       Finally, Appellant raises a Sixth Amendment challenge,

17   contending that his counsel below was ineffective because

18   his counsel failed to raise the sentencing arguments now

19   before us on appeal.     We decline to adjudicate Appellant’s

20   claim for ineffective assistance of counsel on this direct

21   appeal.   Appellant may raise his Sixth Amendment claim in

22   the district court by petition under § 2255.     See Massaro v.


                                     5
1    United States, 538 U.S. 500, 504-05 (2003) (noting the

2    benefits of deciding ineffective-assistance claims through

3    § 2255 proceedings instead of on direct appeal).

4        We have considered Appellant’s remaining arguments and

5    find them to be without merit.   For the foregoing reasons,

6    the judgment of the District Court is hereby AFFIRMED.

 7
 8                              FOR THE COURT:
 9                              Catherine O’Hagan Wolfe, Clerk
10
11




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