United States v. Wernick , 673 F. App'x 21 ( 2016 )

15-1729-cr
United States v. Wernick
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 14th day of December, two thousand sixteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-1729-cr
BRUCE WERNICK, AKA “Userfriendly,” AKA
“BJGuy,” AKA “Alvin J. Bart,” AKA “Bruce Wernick,”
AKA “Bart,”
Defendant-Appellant.
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APPEARING FOR APPELLANT: NORMAN TRABULUS, Law Office of
Norman Trabulus, New York, New York.
APPEARING FOR APPELLEE: LARA TREINIS GATZ, Assistant United
States Attorney (Peter A. Norling and Carrie N.
Capwell, Assistant United States Attorneys, on
the brief), for Robert L. Capers, United States
Attorney for the Eastern District of New York,
Brooklyn, New York.
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Appeal from a judgment of the United States District Court for the Eastern District
of New York (Denis R. Hurley, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on May 27, 2015, and attending orders
entered on July 23, 2015 and December 10, 2015, are AFFIRMED.
Defendant Bruce Wernick was convicted after a jury trial of receiving,
distributing, reproducing, and possessing child pornography, see 18 U.S.C.
§ 2252A(a)(2)(A), (a)(3), (a)(5)(B) (Counts One through Four), as well as persuading and
enticing persons under age eighteen to engage in sexual activity, see id. § 2422(b) (Count
Five). On Wernick’s original appeal, we identified error in his Guidelines calculation
and therefore vacated his original 360-month sentence and remanded the case for
resentencing. United States v. Wernick, 691 F.3d 108 (2d Cir. 2012). On this appeal,
Wernick argues that (1) the above-Guidelines 300-month sentence imposed on remand is
infected by procedural error; and (2) the district court erred in denying his
post-sentencing motions (a) to amend the revised Presentence Investigation Report
(“PSR”) and the court’s own Statement of Reasons for the Amended Judgment, and (b) to
require the government to return the data from Wernick’s forfeited electronic storage
drives that did not contain child pornography. We assume the parties’ familiarity with
the facts and record of prior proceedings, which we reference only as necessary to
explain our decision to affirm.
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1. Procedural Reasonableness of the Sentence
Wernick argues that the district court procedurally erred by effectively double
counting his uncharged attempts to molest children under the age of six: first, by
imposing a Guidelines enhancement for a “pattern of sexual exploitation of minors,” see
U.S.S.G. § 2G2.2 (2000), and second, by imposing an above-Guidelines sentence in light
of how such conduct informed the sentencing factors listed in 18 U.S.C. § 3553(a). We
review Wernick’s challenge to procedural reasonableness “under a deferential
abuse-of-discretion standard . . . ensur[ing] that the district court committed no
significant procedural error, such as” improperly applying the Guidelines or construing
the § 3553(a) factors. United States v. Young, 811 F.3d 592, 598 (2d Cir. 2016)
(internal quotation marks omitted). This “standard incorporates de novo review of
questions of law (including interpretation of the Guidelines) and clear-error review of
questions of fact,” United States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008); accord
United States v. Wernick, 691 F.3d at 113, neither of which we identify here.
At the outset, we note that the government argues that Wernick’s procedural
challenge is barred by the mandate rule and waiver, or at least limited by forfeiture. We
need not pursue those challenges because, even assuming we were to decide them all in
Wernick’s favor, his procedural argument fails on the merits.
Wernick’s sentence does not reflect double counting because the “pattern of
activity” enhancement was fully warranted here by his charged exploitation of two
teenage minors without regard to his uncharged attempted molestation of younger
children. See U.S.S.G. § 2G2.2(b)(4) & § 2G2.2 cmt. n.1 (2000) (explaining that
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enhancement warranted for “any combination of two or more separate instances of the
sexual abuse or sexual exploitation of a minor”). Moreover, even if, as Wernick urges,
the attempted activity with younger children might also be viewed as part of the
“pattern,” that did not preclude the court from basing an upward departure or variance on
that conduct. See U.S.S.G. § 2G2.2 cmt. n.2 (2000) (approving upward departure for
defendant receiving § 2G2.2(b)(4) (2000) enhancement if “enhancement does not
adequately reflect the seriousness of the sexual abuse or exploitation involved”).
Indeed, such a conclusion comports with a district court’s obligation at sentencing—and
resentencing—to consider the factors enumerated in 18 U.S.C. § 3553(a), such as the
defendant’s history, conduct, and character, as well as the need for general and specific
deterrence, and to make an individualized sentencing decision. See United States v.
Weingarten, 713 F.3d 704, 711 (2d Cir. 2013). As we have summarily recognized on
more than one occasion, the imposition of a Guidelines enhancement “does not limit the
weigh[t] of § 3553(a) factors.” United States v. Dodge, 551 F. App’x 7, 10 (2d Cir.
2014); see United States v. Dunn, 529 F. App’x 30, 33 (2d Cir. 2013) (rejecting
double-counting challenge to § 3553(a) consideration of matters already factored into
Guidelines calculation); see also United States v. Maisonet-Gonzalez, 785 F.3d 757, 764
(1st Cir. 2015); United States v. King, 604 F.3d 125, 145 n.12 (3d Cir. 2010). Thus, a
district court may rely on circumstances informing a Guidelines calculation to vary
upward from the Guidelines range where it articulates reasons for distinguishing the
defendant’s situation from that covered by the Guidelines calculation. See United States
v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007).
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Here, the district court carefully and convincingly explained why Wernick’s
attempted sexual molestation of children between the ages of three and five warranted a
sentence above the Guidelines range. Without ourselves detailing the conduct fairly
characterized by the district court as “mind-boggling,” App’x 79–80, we conclude that it
sufficiently aggravates the character and deterrence concerns evident in the convicted
conduct to support the upward variance. Accordingly, we reject Wernick’s procedural
challenge as meritless, and uphold the challenged sentence.
2. Addendum to the PSR
Wernick challenges the district court’s denial of his post-sentencing motions to
strike from the PSR any statements suggesting that he had sexually abused children under
age six, and to append language to its Statement of Reasons to clarify that the court had
found the evidence insufficient to prove that Wernick actually engaged in—as opposed to
planned—the sexual abuse of such young children. The district court denied the
motion, concluding that (1) Fed. R. Crim. P. 32 did not empower it to amend portions of
the PSR after sentencing; (2) in any event, the PSR at issue reported third parties’ factual
allegations, not the court’s conclusions; and (3) the Statement of Reasons adequately
advised the Bureau of Prisons or any other reader of the PSR that the court had found
defendant’s intended sexual abuse of very young children “unconsummated,” App’x 169.
Parties must state any objections to a PSR “in writing” and “[w]ithin 14 days after
receiving” it, Fed. R. Crim. P. 32(f)(1), unless the district court grants an extension, see
Fed. R. Crim. P. 32(b)(2). When, as here, a defendant fails to lodge objections prior to
sentencing, “Rule 32, standing alone, does not give a district court jurisdiction [later] to
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correct inaccuracies in a [presentence] report.” United States v. Giaimo, 880 F.2d 1561,
1563 (2d Cir. 1989). Here, Wernick not only failed timely to object to the March 25,
2015 revised PSR and accompanying addendum, but also, at the May 7, 2015
resentencing, his counsel affirmatively stated that he had no objections to the revised
report. On this record, we identify no error, either in the district court’s denial of
Wernick’s untimely motion to amend the PSR, or in its decision not to alter the Statement
of Reasons based on findings related to the PSR.
3. Return of Non-Contraband Data on Forfeited Electronic Storage Devices
Wernick appeals the denial of his motion under Fed. R. Crim. P. 41(g) for the
return of all data on his seized electronic storage devices not containing child
pornography. He argues that government retention of non-contraband data—as
distinguished from the physical devices themselves—was required neither by the terms of
the agreed-to forfeiture order, nor by the child-pornography forfeiture statute, see 18
U.S.C. § 2253. The government argues that Wernick’s motion was untimely, and, in
any event, meritless. “We review a district court’s grant or denial of equitable relief
[under 41(g)] for abuse of discretion, but we review de novo any legal conclusion
underlying such a decision.” United States v. Zaleski, 686 F.3d 90, 92 (2d Cir. 2012).
Because we conclude that the district court did not abuse its discretion in denying
Wernick’s motion, we need not address the government’s timeliness argument.
The forfeiture order in this case required Wernick to surrender “all of his right,
title and interest” to the seized storage devices, App’x 172, and to agree “not [to] file or
interpose any claim . . . to the [f]orfeited [p]roperty in any administrative or judicial
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proceeding,” App’x 174. Through counsel, Wernick expressly stated to the district
court that he had “no objection[s]” to this order. July 2, 2010 Sentencing Tr., at 428.
Such language might well be viewed as a true waiver, precluding appeal. See United
States v. Olano, 507 U.S. 725, 733 (1993); see also United States v. Nino, 535 F. App’x
18, 19–20 (2d Cir. 2013) (citing Olano in context of failure to object to forfeiture order).
Even absent waiver, the district court did not err in denying Wernick’s Rule 41(g)
motion. Property that is traceable to an offense is still forfeitable even if commingled
with legitimate property. See United States v. Banco Cafetero Panama, 797 F.2d 1154,
1161–62 (2d Cir. 1986). Here, Wernick did not seek return of specific files of a clearly
non-criminal nature and of high personal value that could readily be disentangled from
the devices used to further his criminal activities. Rather, he sought the return of all
non-pictorial files on the hard drive, as well as metadata relating to all files (apparently
including metadata for the contraband images themselves). It is impossible confidently
to conclude that none of the data requested was used to facilitate the offenses of
conviction (such as contact information for parties to the crimes or records of internet
chats concerning the criminal activity). Moreover, record evidence suggests that
“thousands and thousands of hours” would be required to segregate the computer data as
Wernick requests. See Hr’g Tr. July 23, 2015, at 20, Dist. Ct. Dkt. No. 241. Under
these circumstances, the district court did not abuse its discretion in denying Wernick’s
motion. We need not here decide whether defendants in some cases may retain interests
in data unconnected to criminal activity that is stored on a hard drive that is itself
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forfeitable because it was “used . . . to commit or to promote the commission of [a child
pornography] offense,” 18 U.S.C. § 2253(a)(3).
4. Conclusion
We have considered Wernick’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court and attending orders are
AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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