19-265
U.S. v. Waldman
                           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 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 1st day of April, two thousand twenty.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           JOSEPH F. BIANCO,
                        Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

              Appellee,

                      v.                                               No. 19-265

DAVID WALDMAN,

           Defendant-Appellant.
_________________________________________

FOR DEFENDANT-APPELLANT:                          Matthew B. Larsen, Federal
                                                  Defenders of New York, New
                                                  York, NY.

FOR APPELLEE:                                     Nicholas Chiuchiolo, Assistant
                                                  United States Attorney, (Daniel B.
                                                  Tehrani and Mona Sedky), for
                                                  Geoffrey S. Berman, United States
                                                  Attorney for the Southern District
                                                  of New York, New York, NY.
       Appeal from a judgment of the United States District Court for the Southern
District of New York (Failla, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the judgment entered on
January 22, 2019, is AFFIRMED.

       Defendant-Appellant David Waldman (“Waldman”) appeals from a judgment
of conviction entered on January 22 2019, following entry of his guilty plea in the
United States District Court for the Southern District of New York (Failla, J.),
pursuant to a plea agreement. Waldman was convicted of cyberstalking in violation of
18 U.S.C. § 2261A(2)(B). The District Court sentenced Waldman principally to a term
of 50 months’ imprisonment. The sole issues on appeal are whether, in sentencing
Waldman, the District Court properly considered the sentencing factors listed in 18
U.S.C. § 3553, and whether the District Court’s references at sentencing to the
recovery needs of Waldman’s victims reflected the District Court’s consideration of a
factor not permitted under that statute. We assume the parties’ familiarity with the
underlying facts, procedural history, and arguments on appeal, to which we refer only
as necessary to explain our decision to affirm.

       The parties dispute the applicable standard of review. We need not decide,
however, which of the proffered standards governs, because we conclude that, under
either, the District Court’s sentence was procedurally reasonable. See United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

       Waldman contends that the District Court’s comments at sentencing
demonstrate that the court placed undue emphasis on the victims’ rehabilitation and
recovery in derogation of his own need for treatment, contravening Section 3553(a)
and rendering his sentence procedurally unreasonable. As relevant here, at Waldman’s
sentencing hearing, the District Court stated, “I have thought and considered very
carefully the factors that are set forth in Section 3553(a),” and then proceeded to
address the various factors. App’x at 100. The District Court commented further that,

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in selecting a sentence, it considered Waldman’s need for mental health treatment
and, by choosing a somewhat longer sentence it also aimed to enable Waldman’s
victims to “heal from these awful experiences.” Id. at 104. The District Court
acknowledged that a longer prison term could result in “a retardation of recovery or a
slower progress of recovery for Mr. Waldman,” but said that it chose to focus on the
victims’ recovery. Id. at 105-06. When the District Court asked defense counsel to
identify any reason that it could not impose the proposed sentence, counsel made no
objection.

       Waldman contends that these comments reflect procedural error in two ways.
First, he argues that the District Court was required to impose a sentence that
provided for his mental health treatment in “the most effective manner.” Appellant’s
Br. at 7-8 (quoting 18 U.S.C. § 3553(a)(2)(D)). Because the District Court
acknowledged that a longer prison sentence could prolong Waldman’s own recovery,
he submits, the sentence violated that requirement. But Section 3553 does not require
a court to impose a sentence that provides a defendant with needed treatment in the
most effective manner. Rather, it directs the sentencing court to “consider” various
enumerated factors, including whether a sentence “provide[s] the defendant with
needed . . . medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a). This Court has made clear that the district court need
not afford equal weight to each of the Section 3553 factors; instead, a sentencing
court may, in its discretion, choose to emphasize certain of the factors over others.
See United States v. Douglas, 713 F.3d 694, 702-03 (2d Cir. 2013) (rejecting argument
that “punitive sanctions are a less appropriate response to criminal acts by persons
suffering from addiction than drug treatment,” and reasoning that “[s]entencing
courts are not required . . . to turn a blind eye to behavior that can reasonably be
understood as demonstrating that a particular defendant has shown himself to be a
poor candidate for treatment”). Here, in imposing its sentence, the District Court
appropriately weighed Waldman’s need for treatment and rehabilitation against the
other relevant Section 3553 factors, including the nature of his criminal conduct and


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the needs to incapacitate and specifically deter Waldman and to protect the victims
from further harm.

       Second, Waldman contends that the District Court’s consideration of the
victims’ recovery was altogether improper. The sentencing record, however,
establishes that when the District Court discussed the victims’ trauma, it did so in the
context of its general review of the Section 3553(a) factors, including the nature,
circumstances, and seriousness of Waldman’s criminal conduct, incapacitation, and
just punishment. Courts routinely and properly consider the harm caused by a
defendant’s criminal conduct in accordance with Section 3553(a). See, e.g., United States
v. Pinhasov, 762 F. App’x 43, 45 (2d Cir. 2019) (affirming a district court’s imposition
of an above-Guidelines sentence where that court reasoned that the Guidelines range
“did not adequately reflect,” among other things, “the degree of harm [the defendant]
inflicted on the victims”). In sentencing Waldman, the District Court explained at
length its evaluation of the Section 3553(a) factors. In its oral commentary, the
District Court discussed, among other factors, the nature, circumstances, and
seriousness of the offense, Waldman’s history and characteristics, and the need for
the sentence to afford adequate deterrence and to protect the public—and (as noted
above) the victims—from further crimes by Waldman. It also considered the goal of
providing Waldman with needed medical care. We identify no error in the District
Court’s calculus.

                                         * * *

       We have considered Waldman’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the District Court’s judgment is
AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’ Hagan Wolfe




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