United States v. Bowles

260 F. App'x 367
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 16, 2008
DocketNo. 06-4319-cr
StatusPublished
Cited by3 cases

This text of 260 F. App'x 367 (United States v. Bowles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bowles, 260 F. App'x 367 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendant-Appellant Gregory Michael Bowles appeals from an amended judgment of the United States District Court for the Western District of New York (William M. Skretny, Judge), entered on October 20, 2006, sentencing him on a guilty plea principally to 87 months’ imprisonment and lifetime supervised release, for one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, Bowles challenges only the term of lifetime supervised release. We assume the parties’ familiarity with the balance of the facts, procedural history, and issues on appeal.

Bowles argues that his lifetime supervised release term is proeedurally unreasonable because the District Court failed to justify the magnitude of its deviation from the Guidelines’ maximum three-year term of supervised release, and substantively unreasonable because (1) the factors relied on do not support a non-Guidelines sentence, and (2) the reasons given by the District Court for the departure are common to all defendants.

We review a district court’s sentence for procedural and substantive reasonableness, a standard “akin to review for abuse of discretion.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006) (citing United States v. Crosby, 397 F.3d 103, 114 (2d Cir.2005)). First, an appellate court must:

ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.

Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

For an “outside-Guidelines sentence” the district court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.... After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. It is not controversial that “a major departure should be supported by a more significant justification than a minor one.” Id.

Then, in reviewing for substantive reasonableness, we must “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id.; see also Fernandez, 443 F.3d at 26-27. If the sentence is outside the Guidelines range, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 128 S.Ct. at 597.

I. Procedural Reasonableness

We find that Bowles’s sentence was not proeedurally unreasonable. In Gall, the Supreme Court found that the district court adequately explained it reasons when it sentenced Gall to probation based on his “explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, [his] post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of crim[369]*369inal history, and his age at the time of the offense conduct.” Id. at 593; see also United States v. Avello-Alvarez, 430 F.3d 543, 544-45 (2d Cir.2005) (noting no error where the district court explained that an upward departure in the term of supervised release “was necessary because of appellant’s past criminal conduct and the pressures that he may perceive in dealing with issues relating to his own safety and that of his family after his release” as well as “an unusual need for conduct constraint, support and supervision of the defendant, ... due to his substance abuse and emotional issues, and the stress and pressure associated with the perception of danger associated with events the district court had discussed” (internal quotation marks omitted)).

Similarly here, we find that the District Court adequately justified the magnitude of the departure. Though, originally, the District Court erroneously applied the 2005 Guidelines range, which specified a supervised release term of three years to life, upon objection and at a later hearing, the District Court correctly recognized that the appropriate Guidelines range was two to three years. In amending the judgment, the District Court correctly made clear that the sentence of lifetime supervised release was outside the Guidelines range and explained the departure by noting Bowles’s “strong sexual obsession with children,” problems with alcohol and drug abuse, a limited support network, a proclivity towards sexual activities with children, and a perception that children enjoyed the contact. The District Court also explained that the sentence reflected the Guidelines policy statement recommending lifetime supervision. See U.S.S.G. § 5D1.2(c) (2003). All these reasons were memorialized in the amended written judgment’s statement of reasons.1

The District Court considered the sentence in light of the need for deterrence, punishment, retribution, protection of society, rehabilitation, and what would constitute the “most appropriate fair, just, and reasonable sentence under the circumstances.” We do not require “the district court to utter any specific incantation,” and find that the court’s simple, fact-specific statement explaining why it imposed the sentence suffices. United States v. Rattoballi, 452 F.3d 127, 138 (2d Cir.2006).

II. Substantive Reasonableness

We also find that Bowles’s sentence of lifetime supervision was substantively reasonable. In United States v. Hayes, 445 F.3d 536 (2d Cir.2006), we found the lifetime supervised release sentence for a defendant convicted, like Bowles, under 18 U.S.C. § 2252A, to be reasonable. We noted that the sentence was in conformity with the express recommendation of the Guidelines and the Policy Statement of U.S.S.G. § 5D1.2(b)(2); and, though we did not presume the reasonableness of the sentence on that basis, we found that it was reasonable, especially in light of evidence of the defendant’s recidivism. See Hayes, 445 F.3d at 537; see also Rattoballi, 452 F.3d at 136 (“Although the district court is not required to adhere to the policy statements promulgated by the Commission, we do consider them in reviewing a sentence for reasonableness.”). Although Bowles, unlike Hayes, has not been convicted of sexually abusing a child, the problems with his sexual deviance, perception that the children enjoyed the contact, long-term alcohol and drug abuse and mental illness, as well as a limited support [370]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Joseph Vincent Jenkins
854 F.3d 181 (Second Circuit, 2017)
United States v. Stern
590 F. Supp. 2d 945 (N.D. Ohio, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
260 F. App'x 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bowles-ca2-2008.