12-2561-cr
United States v. Hasse


                          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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of May, two thousand thirteen.

PRESENT: REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
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UNITED STATES OF AMERICA,
                   Appellee,

                         v.                                               No. 12-2561-cr

HAROLD N. HASSE,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                         BRIAN P. COMERFORD (Jayme L. Feldman, Of
                                                 Counsel, on the brief), Federal Public Defender’s
                                                 Office, Western District of New York, Buffalo,
                                                 New York.


           *
         The Honorable Lewis A. Kaplan, of the United States District Court for the Southern
District of New York, sitting by designation.
APPEARING FOR APPELLEE:                    STEPHAN J. BACZYNSKI, Assistant United
                                           States Attorney, for William J. Hochul, Jr., United
                                           States Attorney for the Western District of New
                                           York, Buffalo, New York.


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

of New York (William M. Skretny, Chief Judge).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 13, 2012, is AFFIRMED.

       Harold Hasse, who stands convicted on a guilty plea of one count of receiving child

pornography, see 18 U.S.C. § 2252A(a)(2)(A), challenges the substantive reasonableness of

his 84-month prison sentence, a variance from his undisputed Guidelines range of 121 to 151

months’ imprisonment. In making this argument, Hasse carries a heavy burden because we

review the reasonableness of a challenged sentence “under a ‘deferential abuse-of-discretion

standard,’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall

v. United States, 552 U.S. 38, 41 (2007)), and recognize that a range of sentences can usually

be identified as substantively reasonable, see id.; see also United States v. Rigas, 583 F.3d

108, 123 (2d Cir. 2009) (comparing standard for substantive reasonableness review to

“manifest-injustice” and “shocks-the-conscience” standards, which “provide relief only in

the proverbial ‘rare case’”). 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.



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       Hasse contends that his sentence is substantively unreasonable because the district

court placed disproportionate weight on the nature of the images he received and failed to

consider various mitigating evidence. See 18 U.S.C. § 3553(a). The claim fails because the

district court expressly stated that it had “considered all of [Hasse’s] mitigating and

aggravating factors.” Sentencing Tr. 9:14–15; see United States v. Brown, 514 F.3d 256, 264,

270 (2d Cir. 2008) (observing that sentencing judges are not required to employ “robotic

incantations” or “any particular formula” to demonstrate consideration of § 3553(a) factors).

While it characterized the images Hasse possessed as “horrific,” observing that they

“depict[ed] unspeakable acts being perpetrated on innocent young children,” Sentencing Tr.

13:2–4, it also stated that it had reviewed Hasse’s sentencing memorandum, as well as letters

from him and his daughter detailing mitigating factors supporting leniency. Thus, contrary

to Hasse’s assertions, the district court clearly stated that it had considered the very

mitigating evidence Hasse highlights on appeal, and the fact that it accorded that evidence

some weight is evident in its downward variance from the Guidelines. On substantive

reasonableness review, we will generally not second-guess a district court’s assessment of

how much weight to assign the various aggravating and mitigating factors informing

sentence. See United States v. Gilliard, 671 F.3d 255, 260–61 (2d Cir. 2012); United States

v. Pope, 554 F.3d 240, 247 (2d Cir. 2009).

       Equally meritless is Hasse’s argument that the district court impermissibly relied on

his brother’s criminal conduct in sentencing Hasse. While the district court noted Hasse’s


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brother’s criminal activity, it told Hasse that it was “going by what [he] possessed,” as

opposed to what his brother did. Sentencing Tr. 14:6–7.

       Insofar as Hasse argues that the district court erred in declining to rely on the

psychological report of Dr. Tom Mazur, the record is to the contrary. The district court told

Hasse that the reason it was “considering a non-guideline sentence” was “Dr. Mazur’s report,

the lack of your prior conviction history, [and] the strong letter from your daughter.”

Sentencing Tr. 21:7–11, 21–22 (further stating that “Dr. Mazur’s report indicates that you

get the benefit of the doubt”). Thus, Hasse’s case is not akin to United States v. Dorvee, 616

F.3d 174 (2d Cir. 2010), on which he relies. See id. at 183–84 (vacating sentence because,

in part, district court ignored expert evidence and assumed facts that contradicted record

evidence).

       To the extent that Hasse further relies on Dorvee to argue that the child pornography

Guidelines themselves do not adequately take mitigating circumstances into account, that

case does not support Hasse’s contention that any sentence above the 60-month statutory

minimum is substantively unreasonable. See United States v. Broxmeyer, 699 F.3d 265, 291

(2d Cir. 2012) (“When, in Dorvee, we vacated a statutory—and, therefore,

Guidelines—maximum sentence of 20 years for the distribution of child pornography,

expressing concern as to the ‘highly unusual provenance’ of the applicable Guidelines, we

nowhere suggested that it would be an abuse of discretion for the district court to accord




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some weight to the referenced Guidelines in imposing a sentence above the statutory

minimum.” (emphases in original) (citations omitted)).

       Nor can Hasse maintain that the district court’s “failure to justify” any sentence above

the mandatory minimum was unreasonable. Appellant’s Reply Br. 2. Insofar as Hasse

challenges the procedural reasonableness of his sentence, see United States v. Nouri, 711

F.3d 129, 146 (2d Cir. 2013) (“A district court commits procedural error if it . . . fails

adequately to explain its chosen sentence.” (internal quotation marks omitted)), the district

court provided an explanation for the challenged sentence “sufficient to inform the defendant

and public of the reasons” why it imposed a term above the mandatory minimum but below

the recommended Guidelines, United States v. Verkhoglyad, 516 F.3d 122, 133 (2d Cir.

2008); see also United States v. Broxmeyer, 699 F.3d at 297–98. Insofar as Hasse challenges

his sentence as substantively unreasonable, we cannot say that Hasse’s 84-month prison

sentence “cannot be located within the range of permissible decisions.” United States v.

Cavera, 550 F.3d at 189 (internal quotation marks omitted).

       We have considered all of Hasse’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

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




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