13-1019
United States v. Dean

                        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
21st day of November, two thousand fourteen.

PRESENT:

        BARRINGTON D. PARKER,
        DEBRA ANN LIVINGSTON,
        CHRISTOPHER F. DRONEY,

                        Circuit Judges.
______________________________________________

UNITED STATES OF AMERICA,

                              Appellee,

                 -v.-                                              No. 13-1019-cr

EDWARD DEAN AKA SKIP,

                        Defendant-Appellant.
__________________________________________



                                     ROBERT A. CULP, Law Office of Robert A. Culp, Garrison,
                                     NY, for Defendant-Appellant.



                                                1
                                       SONJA M. RALSTON, Attorney, Appellate Section, Mythili
                                       Raman, Acting Assistant Attorney General, Denis J.
                                       McInerney, Deputy Assistant Attorney General, U.S.
                                       Department of Justice, Criminal Division, Washington, DC;
                                       Brenda Sannes, Assistant United States Attorney, for Richard
                                       S. Hartunian, United States Attorney for the Northern District
                                       of New York, Syracuse, NY, for Defendants-Appellees.


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

DECREED that the orders of the District Court are AFFIRMED.

       On August 7, 2012, Defendant-Appellant Edward Dean pled guilty in the Northern District

of New York to production of child pornography in violation of 18 U.S.C. § 2251(a), and to

transporting a minor across state lines for the purpose of engaging in illicit sexual conduct in

violation of 18 U.S.C. § 2423(a). On December 21, 2012, Dean orally moved to withdraw his guilty

plea. The district court (McAvoy, J.) denied this motion by written opinion on February 6, 2013.

On March 4, 2013, he sentenced Dean to a term of 300 months’ imprisonment, to be followed by

20 years of supervised release. Dean timely appealed the denial of the motion to withdraw and the

sentence. In a summary order filed on June 25, 2014, this Court remanded the case to the district

court pursuant to United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), seeking clarification from

Judge McAvoy about any independent inquiry he may have made into Dean’s mental condition.

United States v. Dean, 570 F. App’x 103 (2d Cir. 2014). Judge McAvoy has responded to our

request, and we now affirm his orders denying Dean’s withdrawal motion and sentencing Dean

principally to 300 months’ imprisonment. We assume the parties’ familiarity with the underlying

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

       Our Jacobson remand required Judge McAvoy to explain statements he made during

sentencing that, according to Dean, required his recusal from the case. Sections 455(a) and (b)(1)

                                                  2
of Title 28 require a judge to disqualify himself “in any proceeding in which his impartiality might

reasonably be questioned,” id. § 455(a), or “[w]here he has a personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary facts concerning the proceeding,” id. §

455(b)(1). Where, as here, a motion to recuse was not made below, “we review a district court’s

failure to recuse itself for plain error.” United States v. Carlton, 534 F.3d 97, 100 (2d Cir. 2008).

       We conclude that Judge McAvoy did not plainly err by failing to recuse himself.

Immediately prior to sentencing, Dean sought to revisit his motion to withdraw his guilty plea and

alleged that his attorney had failed to present information concerning his mental state in support of

that motion. Judge McAvoy’s response suggested that he may have independently gathered

information about Dean’s mental condition. But on remand, Judge McAvoy clarified – and had two

U.S. Marshals confirm – that he did not “communicate with the ‘Marshals Service’ or anyone about

the defendant’s mental state” or “receive any such communication from any such person who had

custody of him during the entire proceeding.” These assurances, coupled with the context

surrounding the statements, satisfy us that no “reasonable person, knowing all the facts, would

question the judge’s impartiality.” United States v. Yousef, 327 F.3d 56, 169 (2d Cir. 2003) (internal

quotation mark omitted).

       As for the substance of the district court’s decision to deny Dean’s motion to withdraw his

plea, we review the denial for an abuse of discretion and reverse only when it “rests on an error of

law, a clearly erroneous finding of fact, or otherwise cannot be located within the range of

permissible decisions.” United States v. Gonzalez, 420 F.3d 111, 120 (2d Cir. 2005) (internal

quotation marks omitted). A motion to withdraw a plea before sentencing may be granted when the

defendant demonstrates a “fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.


                                                  3
11(d)(2)(B). “While this standard implies that motions to withdraw prior to sentence should be

liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial

judge that there are valid grounds for withdrawal.” United States v. Doe, 537 F.3d 204, 210 (2d Cir.

2008) (internal quotation marks omitted). The district court should consider, inter alia, “(1) the

amount of time that has elapsed between the plea and the motion; (2) whether the defendant has

asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a

withdrawal of the plea.” Id. Where a motion to withdraw a plea is premised on involuntariness, the

“defendant must raise a significant question about the voluntariness of the original plea . . . . [B]ald

statements that simply contradict what he said at his plea allocution are not sufficient grounds to

withdraw the guilty plea.” United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (internal

citations omitted).

       We detect no abuse of discretion in the denial of Dean’s motion to withdraw his plea. In his

plea allocution, Dean stated that his emotions had been “up and down” and that he had been under

“supervision,” but Dean confirmed that he was not on medication or subject to direct intervention.

A22. He affirmed that he was pleading voluntarily. A23. Dean’s statements during the remainder

of the hearing — including his attempts to correct elements of the government’s recitation of the

facts — confirm that he understood the gravity of the proceeding. Yet when he sought to withdraw

his plea, Dean’s attorney stated that Dean had “been on suicide watch” prior to the plea hearing and

felt that he was “under duress.” A100. As the district court noted in denying the motion, these

statements were unsubstantiated and “simply contradict[ed] what he said at his plea allocution.”

Torres, 129 F.3d at 715. Dean’s motion to withdraw his plea was further undercut by the fact that

he did not make the motion until four months after the plea. See, e.g., United States v. Grimes, 225


                                                   4
F.3d 254, 259 (2d Cir. 2009) (per curiam) (affirming denial of motion to withdraw based in part on

a five month delay between the plea and the motion). The district court committed no error in

denying the motion without a hearing under these circumstances.

       Next, Dean challenges his sentence, arguing that it is both procedurally and substantively

unreasonable. This Court reviews all sentences under a “deferential abuse-of-discretion standard.”

United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). We first ensure that the district

court has committed no procedural error by reviewing its “findings of fact at sentencing for clear

error and its application of the [United States Sentencing] Guidelines de novo.” United States v.

Diamreyan, 684 F.3d 305, 308 (2d Cir. 2012) (per curiam). If a sentence is procedurally sound, we

then review its substantive reasonableness based on the “totality of the circumstances and reverse

only in exceptional cases where the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Mason, 692 F.3d 178, 181 (2d Cir. 2012) (citation and

internal quotation marks omitted).

       The district court committed no procedural error. Dean first argues that the district court

erred in applying Guidelines § 4B1.5(b) to enhance his sentence for engaging “in a pattern of

activity involving prohibited sexual conduct.” But a “pattern of activity” requires only “two

separate occasions” of prohibited conduct, and Dean concedes that he engaged in at least two

prohibited sexual acts with the victim in this case. U.S.S.G. § 4B1.5(b) cmt. 4(B)(i); see United

States v. Broxmeyer, 699 F.3d 265, 284-85 (2d Cir. 2012) (holding that the two instances may

include the charged conduct). The Guidelines do not require two separate victims, see PROTECT

Act of 2003, Pub. L. No. 108-21, § 401(i)(1)(A) (removing the requirement of at least two victims),

and even if they did, the district court did not err – much less clearly err – in finding that Dean


                                                  5
committed prohibited acts against two other individuals. Dean also argues that the district court

incorrectly enhanced his sentence under Guidelines § 2G2.1(b)(2)(A), an enhancement the court

found appropriate on the ground that the pornographic images Dean sent depicted “the commission

of a sexual act or sexual contact.” Dean’s argument, however – that this enhancement does not

apply to images depicting a person touching himself or herself – is unsupported by the text of the

provision. Section 2G2.1(b)(2)(A) incorporates the definitions of “sexual act” and “sexual contact”

in 18 U.S.C. § 2246. While “sexual act” requires that an image depict the touching “of another

person,” 18 U.S.C. § 2246(b)(2), “sexual contact” requires only that the image depict the touching

“of any person,” id. § 2246(b)(3) (emphasis added). Accordingly, the conduct depicted in Dean’s

pictures unambiguously qualifies as “sexual contact.” See United States v. Pawlowski, 682 F.3d

205, 212-13 (3d Cir. 2012) (holding that “sexual contact” unambiguously encompasses “the

touching of oneself”); United States v. Shafer, 573 F.3d 267, 273 (6th Cir. 2009) (“‘Any person’

includes a person touching himself or herself.”). Finally, we find no error in the district court’s

application of the § 2G1.3(b)(2)(B) enhancement for “unduly influenc[ing] a minor to engage in

prohibited sexual conduct.”

       Turning to Dean’s substantive reasonableness challenge, we conclude that the district court’s

sentence was permissible. The district court thoroughly considered Dean’s criminal conduct and

his history. Based on the facts in the record, its imposition of a below-Guidelines sentence was not

one of the “rare case[s]” where the sentence is “shockingly high.” United States v. Rigas, 583 F.3d

108, 123 (2d Cir. 2009).      Nor is Dean’s prior state sentence a proper benchmark for the

reasonableness of his federal sentence. “When a defendant in a single act violates the peace and

dignity of two sovereigns by breaking the laws of each, he has committed two distinct offences.”


                                                 6
Heath v. Alabama, 474 U.S. 82, 88 (1985) (internal quotation marks omitted). The district court

therefore acted properly by setting Dean’s sentence based on the applicable federal laws and

sentencing guidelines, and we affirm its sentencing decision.

       We have considered Dean’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




                                                7
