10-628-cr
United States v. Rosenberg
                             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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 24th day of May, two thousand eleven.

PRESENT: REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                 J. CLIFFORD WALLACE,*
                                 Circuit Judges.
--------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,

                             v.                                       No. 10-628-cr

DAVID ROSENBERG,
                                 Defendant-Appellant.
--------------------------------------------------------------

FOR APPELLANT:                    Christina G. Cagnina, Law Offices of Christina G. Cagnina,
                                  Syracuse, New York.

FOR APPELLEE:                     Lisa M. Fletcher, Assistant United States Attorney, for Richard
                                  S. Hartunian, United States Attorney for the Northern District of
                                  New York, Syracuse, New York.




          *
         Circuit Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
       Appeal from the United States District Court for the Northern District of New York

(David N. Hurd, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of conviction entered on February 16, 2010, is AFFIRMED.

       David Rosenberg, who stands convicted on pleas of guilty to one count of receipt and

two counts of possession of child pornography, see 18 U.S.C. § 2252A(a)(2)(A), (5)(B),

appeals his prison sentence – concurrent terms of 210 months on the receipt count and 120

months on the possession counts – as procedurally and substantively unreasonable. Our

standard of review is abuse of discretion. See United States v. Cavera, 550 F.3d 180, 187-88

(2d Cir. 2008) (en banc). We assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Procedural Reasonableness

       Rosenberg faults the district court for denying his request for a downward departure

from his Guidelines range based on his mental condition. See U.S.S.G. § 5H1.3. “[A]

refusal to downwardly depart is generally not appealable,” unless “a sentencing court

misapprehended the scope of its authority to depart or the sentence was otherwise illegal.”

United States v. Stinson, 465 F.3d 113, 114 (2d Cir. 2006) (internal quotation marks

omitted); see also United States v. Valdez, 426 F.3d 178, 184 (2d Cir. 2005). Here, there is

no question that the district court understood its departure authority because the record

plainly shows that it considered, but rejected, Rosenberg’s request. See Sentencing Tr. at 8.

Although Rosenberg complains that the district court did not “adequately address” his

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request, Appellant’s Br. at 8, “we never have required a District Court to make specific

responses to points argued by counsel in connection with sentencing,” United States v.

Bonilla, 618 F.3d 102, 111 (2d Cir. 2010), cert. denied, 131 S. Ct. 1698 (2011); see United

States v. Scott, 387 F.3d 139, 143 (2d Cir. 2004) (“A district court is not obliged to give

reasons for refusing to depart.”). Moreover, the Sentencing Guidelines then in effect

specified that, except as provided in § 5K2.13, “[m]ental and emotional conditions are not

ordinarily relevant in determining whether a departure is warranted,” U.S.S.G. § 5H1.3

(2009), and Rosenberg was ineligible for a departure based on diminished capacity, see id.

§ 5K2.13 (“[T]he court may not depart below the applicable guideline range if . . . the

defendant has been convicted of an offense under chapter . . . 110 [Sexual Exploitation and

Other Abuse of Children].”).

       To the extent Rosenberg contends that the district court failed adequately to consider

the 18 U.S.C. § 3553(a) factors, “we presume, in the absence of record evidence suggesting

otherwise,” that a sentencing judge has faithfully discharged this duty. United States v.

Fernandez, 443 F.3d 19, 30 (2d Cir. 2006). Contrary to Rosenberg’s contention, the district

court expressly stated that it had “considered the applicable sentencing guidelines, as well

as the other factors listed in 18 U.S.C. § 3553(a),” Sentencing Tr. at 13, and concluded that,

“[i]n light of all the required factors, . . . the purposes of 18 U.S.C. § 3553(a) are satisfied by

a sentence within the guidelines,” id. at 14-15. Rosenberg nevertheless complains that the

district court gave “no consideration” to his “lack of recent criminal history,” “attempts to

get mental health counseling,” “mental conditions,” “attempts to provide his challenged

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family with stability,” “age,” and “tenuous health.” Appellant’s Br. at 13. With the exception

of age and health, which were not raised below, the district court specifically addressed the

factors cited by Rosenberg, but concluded that his “unpredictable dangerous” nature, “violent

criminal history,” continuing mental health issues, “extremely vulnerable” family, and the

demonstrable threat that he posed to children in general warranted a high-end Guidelines

sentence. Sentencing Tr. at 13-14. In these circumstances, we identify no procedural error.

2.     Substantive Reasonableness

       Despite the litany of factors recited by the district court in support of its within-

Guidelines sentence, Rosenberg submits that his prison term was substantively unreasonable.

We will set aside a district court’s substantive determination only in “exceptional” cases

where the sentence cannot be located within the range of permissible decisions. United

States v. Cavera, 550 F.3d at 189; accord United States v. Jones, 531 F.3d 163, 174 (2d Cir.

2008) (recognizing that “in the great majority of cases, a range of sentences – frequently

extending well beyond the narrow ranges prescribed by the Guidelines – must be considered

reasonable”). This is not such a case.

       Rosenberg submits that the factors relied upon by the district court in determining his

sentence were based on “unsubstantiated,” “unreliable,” or “controverted” information.

Appellant’s Br. at 11. We are not persuaded. Afforded an opportunity to object to the

presentence report, Rosenberg’s counsel referenced only her presentence memorandum,

which urged a mental health departure and opposed any enhancement of Rosenberg’s

criminal history, leaving any undetermined factual issues “to the Court’s discretion.”

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Sentencing Tr. at 3. In these circumstances, the district court acted well within its discretion

in adopting “the factual statements contained in the [presentence] report.” Id. at 4; see

United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005) (“A district court satisfies its

obligations to make the requisite specific factual findings when it explicitly adopts the factual

findings set forth in the presentence report.” (internal quotation marks omitted)).

       Nor can we conclude that the district court accorded undue weight to Rosenberg’s

personal circumstances and the nature of his crimes, including the “disturbing story about

killing his in-laws and molesting his eleven year old daughter,” in concluding that the

challenged sentence was necessary to provide adequate deterrence. Sentencing Tr. at 14; see

18 U.S.C. § 3553(a)(2)(B) (identifying deterrence as relevant sentencing factor); see also

United States v. Cavera, 550 F.3d at 191 (observing that weight to assign factors generally

left to district court’s discretion). In light of the facts set forth by the district court at

sentencing and in its Statement of Reasons, we conclude that “the sentence ultimately

imposed is reasonable.” United States v. Fernandez, 443 F.3d at 32; see also United States

v. Jones, 531 F.3d at 174.

       We have considered Rosenberg’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of conviction is AFFIRMED.

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




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