     14-4020-cr
     United States v. Durand

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of October, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                PIERRE N. LEVAL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-4020-cr
16
17       CHRISTOPHER DURAND,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Randi J. Bianco and James P.
22                                             Egan, for Lisa Peebles, Federal
23                                             Public Defender for the Northern
24                                             District of New York, Syracuse,
25                                             New York.
26
27       FOR APPELLEE:                         Lisa M. Fletcher and Paul D.
28                                             Silver, for Richard S.

                                                  1
 1                              Hartunian, United States
 2                              Attorney for the Northern
 3                              District of New York, Albany,
 4                              New York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Northern District of New York (Mordue, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Christopher Durand appeals from the judgment of the
14   United States District Court for the Northern District of
15   New York (Mordue, J.), convicting him of seventeen counts of
16   transporting, distributing, receiving, and possessing child
17   pornography and sentencing him to a 188-month term of
18   incarceration, followed by lifetime supervised release.
19   Durand challenges the supervised release portion of his
20   sentence as both procedurally and substantively
21   unreasonable. We assume the parties’ familiarity with the
22   underlying facts, the procedural history, and the issues
23   presented for review.
24
25        A district court commits procedural error if it “does
26   not consider the [18 U.S.C.] § 3553(a) factors” or “fails
27   adequately to explain its chosen sentence.” United States
28   v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc).
29   Durand argues that the district court committed procedural
30   error by failing to separately articulate its reasons for
31   imposing a lifetime term of supervised release. Because
32   Durand raises this argument for the first time on appeal, we
33   review the contention for plain error. United States v.
34   Wagner-Dano, 679 F.3d 83, 88 (2d Cir. 2012). The court
35   stated its reasons for imposing its overall sentence with
36   specific reference to a number of § 3553(a) factors,
37   including the nature of the offense, the need for treatment,
38   and the characteristics of the defendant. 18 U.S.C.
39   § 3553(a); see Sent’g Tr. 9:1-2 (noting Durand’s “extremely
40   large collection of child pornography, some of which he
41   distributed to others over the internet”); id. 9:9-11
42   (noting “that the defendant is amenable to . . .
43   treatment”); id. 9:12-15 (noting circumstances of
44   defendant’s “difficult and disadvantaged youth”). A
45   sentencing court must explain its “chosen sentence.”
46   Cavera, 550 F.3d at 190 (emphasis added); see also 18 U.S.C.
47   § 3553(c) (“The court, at the time of sentencing, shall

                                  2
 1   state in open court the reasons for its imposition of the
 2   particular sentence.” (emphasis added)). There is no
 3   authority in this circuit for the proposition that a
 4   sentencing court must separately articulate reasons for the
 5   supervised release component of a sentence. See United
 6   States v. Mostafa, 299 F. App’x 86, 88 (2d Cir. 2008) (“In
 7   the absence of authority to the contrary, we cannot conclude
 8   that the District Court’s imposition of a term of supervised
 9   release without a separate statement [of supporting reasons]
10   in open court constituted an error of any kind that affected
11   substantial rights.”). We conclude that failure to
12   separately explain the reason for the supervised release
13   component of the sentence was not plain error.
14
15        Durand challenges as substantively unreasonable
16   lifetime supervised release. The conditions of supervised
17   release include, among other things, restrictions on
18   Durand’s ability to interact with children and to use the
19   internet. We review the substantive reasonableness of the
20   sentence for abuse of discretion, United States v. Norman,
21   776 F.3d 67, 76 (2d Cir. 2015), and will “set aside a
22   district court’s substantive determination only in
23   exceptional cases where the trial court’s decision cannot be
24   located within the range of permissible decisions,” Cavera,
25   550 F.3d at 189 (internal quotation marks omitted). Given
26   the nature of Durand’s collection of child pornography
27   (consisting of over 50,000 images and 1,600 videos,
28   including material depicting the sexual abuse of toddlers
29   and infants) and his conduct in distributing such material
30   to others, we conclude that the imposition of a lifetime
31   term of supervised release was not substantively
32   unreasonable.
33
34        For the foregoing reasons, and finding no merit in
35   Durand’s other arguments, we hereby AFFIRM the judgment of
36   the district court.
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




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