United States v. Neal Braden

Opinion

18-3080-cr (L)

United States of America v. Neal Braden

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 25th day of November, two thousand nineteen. 4 5 Present: 6 PIERRE N. LEVAL, 7 RICHARD C. WESLEY, 8 DEBRA ANN LIVINGSTON, 9 Circuit Judges, 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. 18-3080-cr (L); 18-3097-cr 17 (con) 18 19 NEAL BRADEN, 20 21 Defendant-Appellant. 22 _____________________________________ 23 24 For Defendant-Appellant: MELISSA A. TUOHEY, Assistant Federal Public 25 Defender (Lisa A. Peebles, Federal Public Defender, on 26 the brief), Syracuse, New York 27 28 For Appellee: PAUL D. SILVER, Assistant United States Attorney 29 (Geoffrey J. L. Brown, Assistant United States 30 Attorney, on the brief) for Grant C. Jaquith, United 31 States Attorney for the Northern District of New York, 32 Albany, New York

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1 Appeal from a judgment of the United States District Court for the Northern District of 2 New York (McAvoy, S.J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Neal Braden appeals from a consolidated judgment entered on October 4, 2018 imposing 6 a sentence of 97 months’ imprisonment and 15 years of supervised release. Braden pled guilty 7 to a one-count Western District of Missouri indictment charging him with possession of child 8 pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2), and a one-count Northern 9 District of New York information charging him with receipt of child pornography in violation of 10 18 U.S.C. §§ 2252A(a)(2)(A), (b)(1) and 2256(8)(A). He now challenges the substantive 11 reasonableness of the sentence imposed. We assume the parties’ familiarity with the underlying 12 facts, the procedural history of this case, and the issues on appeal. 13 * * * 14 I. Substantive Reasonableness of the Sentence 15 “We review the [sentencing] work of district courts under a ‘deferential abuse-of-discretion 16 standard.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. 17 United States, 552 U.S. 38, 41 (2007)). As relevant here, “[w]e will . . . set aside a district court’s 18 substantive determination only in exceptional cases where the trial court’s decision ‘cannot be 19 located within the range of permissible decisions.’” Id. (quoting United States v. Rigas, 490 F.3d 20 208, 238 (2d Cir. 2007)). 21 On appeal Braden argues that the sentence imposed by the district court was substantively 22 unreasonable because the district court failed to give sufficiently careful attention to the 23 considerations raised in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) and United States v.

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1 Jenkins, 854 F.3d 181 (2d Cir. 2017) regarding the relevant sentencing guideline, U.S.S.G. § 2 2G2.2. Braden also argues that the sentence fails to adequately account for his reduced risk of 3 recidivism due to his age, lack of criminal history, and work history. 4 As to Braden’s first argument, regarding U.S.S.G. § 2G2.2, Dorvee and Jenkins found that 5 sentences of 240 months (less 6 months’ and 4 days’ time-served) for distribution of child 6 pornography under 18 U.S.C. § 2252A(a)(2)(A), Dorvee, 616 F.3d at 176, and 225 months for 7 possession and transportation of child pornography under 18 U.S.C. §§ 2252A(a)(5)(b) and 8 2252A(a)(1), Jenkins, 854 F.3d at 184, were substantively unreasonable. Both cases concerned 9 sentences that were at or near the statutory maximum sentence. See Dorvee, 616 F.3d at 184; 10 Jenkins, 854 F.3d at 184 (describing the 225 month sentence as “just below the statutory maximum 11 of 240 months”). In contrast, the instant case involves a sentence of 97 months, falling at the 12 bottom of the calculated guidelines range of 97 to 121 months and well below the statutory 13 maximum of 240 months. 14 While “we do not presume that such sentences are reasonable,” Dorvee, 616 F.3d at 183, 15 “[w]e recognize that in the overwhelming majority of cases, a Guidelines sentence will fall 16 comfortably within the broad range of sentences that would be reasonable in the particular 17 circumstances,” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Indeed, we have 18 upheld numerous sentences that are comparable to Braden’s for similar conduct. See, e.g., United 19 States v. Escobosa, No. 17-3162, 2019 WL 5294964 at *2, (2d Cir. October 18, 2019) (rejecting 20 substantive reasonableness challenge to an 87-month sentence for possession of child 21 pornography); United States v. Hagerman, 506 F. App’x 14, 17–18 (2d Cir. 2012) (noting that the 22 defendant was not sentenced to the statutory maximum and upholding a 97-month sentence for 23 receipt and possession of child pornography where the defendant had no prior criminal history,

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1 was a victim of sexual abuse, had never sexually abused a minor, and where a psychological 2 evaluation concluded “he poses only a low to moderate risk of reoffending”); United States v. 3 Chow, 441 F. App’x 44, 46 (2d Cir. 2011) (upholding 84-month sentence for attempted receipt 4 and possession of child pornography); United States v. Ryan, 406 F. App’x 565, 566–68 (2d Cir. 5 2011) (upholding a 90 months’ sentence for transportation of child pornography). Thus, 6 Braden’s sentence does not appear “shockingly high,” Jenkins, 854 F.3d at 187, nor fall outside 7 the “broad range of sentences that would be reasonable in the particular circumstances,” 8 Fernandez, 443 F.3d at 27. 9 Additionally, the district court explicitly acknowledged Dorvee and other cases from this 10 Circuit when pronouncing the sentence here.1 The judge stated that he was “fully familiar with 11 the Circuit’s position,” and that “[this Circuit has] pointed out . . . [and] rightly so, that you [have] 12 to take a hard, hard look at all the enhancements” to avoid potential problems in their application. 13 J.A. 115. Immediately following those statements, the district court exercised its discretion to 14 apply a two-level guidelines reduction because Braden did not intend to distribute or traffic in the 15 pornography. J.A. 116. The judge took this action despite the fact that the plea agreement 16 stipulation provided that the “parties agree[d] that the defendant’s conduct was not limited to the 17 receipt or solicitation of material involving the sexual exploitation of a minor, and therefore the 2- 18 level decrease of U.S.S.G. § 2G2.2(b)(1) does not apply.” J.A. 38. 19 Finally, the district court expressly considered the guidelines range in light of the 20 sentencing factors announced in 18 U.S.C. § 3553(a) and the information contained in the 21 presentence report. J.A. 119. The court noted that Braden had engaged in the conduct here for

1 Indeed, the district court judge acknowledged that he had been the sentencing judge in Dorvee. J.A.

115.

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1 multiple years, that Braden had a “large collection of child pornography,” some of it involving 2 “masochistic and sadistic actions,” and that substantial harm had been done to the victims depicted 3 in those materials. Id. The court also noted the need to prevent Braden from engaging in this 4 conduct in the future and the need to deter “other people who might be considering committing 5 similar crimes.” J.A. 120. 6 Braden’s second argument, that the district court erred by failing to account for his reduced 7 risk of recidivism due to his advanced age, work history, and lack of criminal history, is similarly 8 unavailing. First, Braden’s work history does not suggest any reason why he would be at a lower 9 risk of recidivism given that Braden accumulated and possessed the child pornography at issue all 10 while gainfully employed as a truck driver. Second, while Braden did not have prior convictions 11 for child pornography, he had been previously investigated for possession of child pornography 12 and apparently possessed at least 5,000 images on his computer in 2012. Finally, while Braden’s 13 age might suggest a lower risk of recidivism, his history of repeated and extensive collection of 14 child pornography tends to undermine his argument that he has a low risk of recidivism, and, given 15 the circumstances of this case, the district court did not abuse its discretion in ordering the sentence 16 at issue here. 17 * * * 18 We have considered Braden’s remaining arguments and find them to be without merit. 19 Accordingly, we AFFIRM the judgment of the district court.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk