    16-3355
    United States v. Kopp
                            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 TO 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 28th day of February, two thousand eighteen.

    PRESENT:
                 BARRINGTON D. PARKER,
                 PETER W. HALL,
                 RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
    _____________________________________

    UNITED STATES OF AMERICA,

                             Appellee,

                     v.                                                     No. 16-3355-cr

    JASON KOPP,

                             Defendant-Appellant.

    _____________________________________

    For Appellee:                            Lisa M. Fletcher, Assistant United States Attorney,
                                             (Steven D. Clymer, Assistant United States Attorney,
                                             on the brief), for Grant C. Jaquith, United States
                                             Attorney for the Northern District of New York,
                                             Syracuse, NY.

    For Defendant-Appellant:                 Melissa A. Tuohey, Assistant Federal Public
                                             Defender, for Lisa A. Peebles, Federal Public
                                             Defender, Syracuse, NY.



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

District of New York (Suddaby, C.J.).

      UPON      DUE      CONSIDERATION,          IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment entered by the district court on

September 14, 2016, is AFFIRMED.

      Defendant Jason Kopp appeals from a judgment of conviction entered following

his plea of guilty to 22 counts of a 28-count indictment that charged him with one

count of conspiracy to sexually exploit a child, see 18 U.S.C. § 2251(a); ten counts of

sexual exploitation of a child, see 18 U.S.C. § 2251(a); nine counts of distribution of

child pornography, see 18 U.S.C. § 2252A(a)(2)(A); and two counts of possession of

child pornography, see 18 U.S.C. § 2252A(a)(5)(B). On appeal, Kopp challenges the

district court’s sentence imposing, a combined term of 235-years of imprisonment and

lifetime supervised release. We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on appeal.

      Kopp argues that the prison sentence is substantively unreasonable. On review

of the reasonableness of a challenged sentence, we apply a “deferential abuse-of-

discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see also United

States v. Cavera, 550 F.3d 180, 187–89 (2d Cir. 2008). If the sentence is reasonable

and “the sentencing judge did not commit procedural error in imposing that sentence,

we will not second guess the weight (or lack thereof) that the judge accorded to a

given [18 U.S.C. § 3553(a)] factor.” United States v. Pope, 554 F.3d 240, 246–47 (2d

Cir. 2009).



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      Kopp’s principal argument is that the district court focused solely on the

offense conduct, and failed to consider the other 18 U.S.C. § 3553(a) factors that

weighed in favor of a lower prison term, such as his acceptance of responsibility and

cooperation with the government. This argument is unpersuasive. The district court

noted that it was considering not only the nature and circumstances of the offense

and the history and characteristics of the defendant but also the need for deterrence

and the need to protect the public from further crimes—all different factors

enumerated under section 3553(a). The court explicitly rejected finding mitigating

circumstances that would entitle Kopp to leniency in sentencing. A. 234. On appeal,

“we 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.” Cavera, 550

F.3d at 191 (citing Gall, 552 U.S. at 51). We find no error in the district court’s

assessment of these considerations.

      Kopp also argues that his sentence is substantively unreasonable because

defendants   in   similar   cases   received   lower   sentences.   Even   if   Kopp’s

characterizations of these cases were correct, the disparity between the sentences

would not provide a basis for remand because the Supreme Court has mandated that

we engage in a “circumspect form of review, [which,] it is true, may result in

substantial variation among district courts.” Id. at 193; see also Kimbrough v. United

States, 552 U.S. 85, 107–08 (2007). The 235-year term of imprisonment imposed was

less than half of the applicable Guidelines 550-year term. We find no procedural error



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in the district court’s sentencing calculations, 18 U.S.C. § 3584(b), and conclude the

court acted within its discretion to impose Kopp’s sentences consecutively. Upon a

consideration of the entire record, we conclude that the sentence was well within the

broad range of reasonable sentences that the district court could have imposed in the

circumstances presented. See Cavera, 550 F.3d at 191.

      Kopp next asserts that the length of his sentence is cruel and unusual and

violates the Eighth Amendment. The Eighth Amendment “forbids only extreme

sentences that are ‘grossly disproportionate’ to the crime.’” United States v. Yousef,

327 F.3d 56, 163 (2d Cir. 2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001

(1991) (Kennedy, J., concurring in part and concurring in the judgment)). Although

lengthy, Kopp’s sentence is well within the Guidelines range. Furthermore, the

sentence is not grossly disproportionate to the crimes to which he pled guilty when

considering the type of conduct, the age and number of victims, and the time period

over which the conduct occurred. See id. (“Lengthy prison sentences, even those that

exceed any conceivable life expectancy of a convicted defendant, do not violate the

Eighth Amendment’s prohibition against cruel and unusual punishment when based

on a proper application of the Sentencing Guidelines or statutorily mandated

consecutive terms.”). We conclude, therefore, that Kopp’s sentence, even if well

beyond his life expectancy, is not cruel or unusual. See id.

      The additional constitutional challenges Kopp raises in his pro se

supplemental brief were not directly raised before the district court. We therefore

review those claims for plain error. See United States v. Diaz, 176 F.3d 52, 117 (2d



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Cir. 1999). Kopp has failed to show, beyond mere conclusory allegations, how any

alleged errors affected his substantial rights or undermined “the fairness, integrity,

or public reputation of judicial proceedings.” United States v. Payne, 591 F.3d 46, 66

(2d Cir. 2010) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). They do not

constitute plain error.

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

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




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