         08-6020-cr
         United States v. Feuer


                                   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 14 th day of December, 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.-                                                   08-6020-cr
18
19       EDWARD C. FEUER,
20
21                                       Defendant-Appellant,
22
23
24
25       FOR APPELLANT:                  KIM P. BONSTROM, Bonstrom & Murphy,
26                                       Shelter Island, NY.
27
28       FOR APPELLEE:                   MARK LANPHER, Assistant United States
29                                       Attorney, (Katherine Polk Failla,
30                                       Assistant United States Attorney, on the
31                                       brief), for Preet Bharara, United States
32                                       Attorney for the Southern District of New
33                                       York, New York, NY.
1         Appeal from the United States District Court for the
2    Southern District of New York (Pauley, 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        Edward C. Feuer appeals from a judgment entered on

8    November 3, 2008 by the United States District Court for the

9    Southern District of New York (Pauley, J.) sentencing Feuer

10   to 84 months’ imprisonment following a jury verdict finding

11   Feuer guilty of receiving child pornography in violation of

12   18 U.S.C. § 2252A(a)(2). We assume the parties’ familiarity

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

14   issues presented for review.

15       Feuer argues that his Sixth Amendment rights were

16   violated because the district court excluded evidence and

17   argument regarding the consequences of conviction and

18   instructed the jury that it could not consider sentencing

19   consequences.   Except in certain limited circumstances, a

20   defendant has “no legal right to a charge informing the jury

21   of the sentencing consequences of its decision.”   United

22   States v. Pabon-Cruz, 391 F.3d 86, 94 (2d Cir. 2004).    See

23   also Shannon v. United States, 512 U.S. 573, 579 (1994);

24   United States v. Polouizzi, 564 F.3d 142, 160-61 (2d Cir.

                                    2
1    2009).    Likewise, except in certain limited circumstances, a

2    defendant has no legal right to introduce evidence or

3    argument regarding sentencing consequences.     Feuer makes no

4    showing of exceptional circumstances here and, accordingly,

5    we find no Sixth Amendment violation. See Shannon, 512 U.S.

6    at 587 (explaining such circumstances).

7        Similarly, Feuer argues that the district court

8    misunderstood and abused its discretion by excluding

9    argument on, and jury consideration of, sentencing

10   consequences.    In Polouizzi, our Court held that declining

11   to inform a jury of sentencing consequences is "certainly

12   within [a district court’s] discretion."     Polouizzi, 564

13   F.3d at 160. In this case, the district court explained that

14   "providing jurors with sentencing information invites them

15   to ponder matters that are not within their province,

16   distracts them from their fact-finding responsibilities and

17   creates a strong possibility of confusion, as the Supreme

18   Court held in Shannon . . . ."     The district court thus

19   reasonably discussed the factors that persuaded it why the

20   jury should not learn of sentencing consequences in this

21   case.    Based on this record, we find no suggestion that the

22   district court either misunderstood or abused its


                                    3
1    discretion.

2        Feuer next argues that the district court erred in

3    denying his application for a psychiatric examination and

4    determining that Feuer was competent to stand trial and

5    proceed to sentencing.     A competency hearing is not required

6    every time a defendant requests one.       United States v.

7    Nichols, 56 F.3d 403, 414 (2d Cir. 1995); 18 U.S.C. §

8    4241(a).   Due process requires a court to order a competency

9    hearing "if the court has reasonable cause to believe that

10   the defendant has a mental defect rendering him

11   incompetent."     Nichols, 56 F.3d at 414 (internal quotation

12   marks and citations omitted).       We review a district court's

13   determination that there was no reasonable cause to believe

14   that a defendant is mentally incompetent for abuse of

15   discretion.     United States v. Quintieri, 306 F.3d 1217,

16   1232-33 (2d Cir. 2002); United States v. Vamos, 797 F.2d

17   1146, 1150 (2d Cir. 1986) (explaining that our review should

18   be with "deference . . . to the district court's

19   determinations based on observations of the defendant during

20   the proceedings").

21       The district court did not violate Feuer’s due process

22   rights or abuse its discretion by finding that there was no


                                     4
1    reasonable cause to believe that Feuer was incompetent.

2    The district court directly questioned Feuer on multiple

3    occasions and sought to ascertain whether he understood the

4    nature and gravity of the proceedings.   Based on these

5    conversations and its observations of Feuer, the court

6    determined that Feuer was competent and reasonably concluded

7    that the concerns expressed by his counsel did not

8    demonstrate incompetence.   The district court expressed a

9    reasonable view of the evidence and thus it did not abuse

10   its discretion.   Nichols, 56 F.3d at 411 (“[w]here there are

11   two permissible views of the evidence as to competency, the

12   court’s choice between them cannot be deemed clearly

13   erroneous” (citation and internal quotation marks omitted)).

14       In opposition, Feuer relies on the district court's

15   recognition at sentencing that Feuer has mental problems.

16   The district court observed “a terrible, a frightening

17   disconnect between Mr. Feuer and the world around him,”

18   found that “[t]he reports indicate that Mr. Feuer may have

19   certain difficult understanding why what he did was wrong,”

20   and noted that it is “clear that this defendant needs a

21   great deal of psychological help.”   None of these

22   observations shows that the district court abused its



                                   5
1    discretion.    The district court also concluded, however,

2    despite all of these observations that, "I think that Mr.

3    Feuer is perfectly capable of understanding everything

4    around him."    Given that the court based this factual

5    finding on its observations of and discussions with Feuer -

6    and that these exchanges did not suggest that Feuer lacked

7    an ability to understand the proceedings - we defer to the

8    district court's findings.

9        Finally, Feuer argues that his sentence was

10   substantively unreasonable.    We disagree.   The district

11   court discussed the reasons for Feuer’s sentence and did

12   not, as Feuer contends, exhibit undue disgust with Feuer’s

13   behavior or undue deference to the Guidelines.     The district

14   court stated that it considered all of the § 3553(a)

15   factors, and there is no evidence to suggest otherwise. The

16   court then rendered its sentence against the backdrop of

17   "the need for deterrence, the need for this defendant to

18   understand that what he did was wrong, that he has some

19   problems that need to be addressed with extensive and

20   ongoing therapy."     Given these proper considerations and

21   the below Guidelines sentence ultimately imposed, we

22   conclude that the sentence was not substantively



                                    6
1   unreasonable.

2       For the foregoing reasons, the judgment of the district

3   court is hereby AFFIRMED.

4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8




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