United States v. Oswald , 576 F. App'x 34 ( 2014 )

13-3612-cr
United States v. Oswald
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 20th day of August, two thousand fourteen.
5
6 PRESENT: JOHN M. WALKER, JR.,
7 DENNIS JACOBS,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 13-3612-cr
16
17 DAVID P. OSWALD, III, AKA BOBBY LEE
18 JOHNSON, AKA BOBBY LEE TRIPLETT, AKA
19 BOBBY TRIPLETT,
20 Defendant-Appellant.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: BARCLAY T. JOHNSON, for Michael
24 L. Desautels, Federal Public
25 Defender for the District of
26 Vermont, Burlington, Vermont.
27
1
1 FOR APPELLEES: WILLIAM B. DARROW (Gregory L.
2 Waples, on the brief), for
3 Tristram J. Coffin, United
4 States Attorney for the District
5 of Vermont, Burlington, Vermont.
6
7 Appeal from a judgment of the United States District
8 Court for the District of Vermont (Reiss, C.J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 David Oswald appeals from the judgment of the United
15 States District Court for the District of Vermont (Reiss,
16 C.J.), convicting him of failure to register as a sex
17 offender, health care fraud, possession of a firearm, and
18 possession of child pornography, in violation of 18 U.S.C.
19 §§ 922(g)(1), 1347, 2250(a), and 2252(a)(4)(B). Oswald
20 challenges the portion of the judgment that orders him to
21 undergo lifetime supervised release after completing a
22 period of incarceration. We assume the parties’ familiarity
23 with the underlying facts, the procedural history, and the
24 issues presented for review.
25
26 We review sentences for reasonableness, United States
27 v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (per curiam),
28 which “amounts to review for abuse of discretion,” see
29 United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008)
30 (en banc). However, “where a defendant does not object to a
31 district court’s alleged failure to properly consider all of
32 the § 3553(a) factors, our review on appeal is restricted to
33 plain error.” United States v. Wagner-Dano, 679 F.3d 83, 89
34 (2d Cir. 2012). Our review applies to both “‘the sentence
35 itself’ and to ‘the procedures employed in arriving at the
36 sentence.’” United States v. Verkhoglyad, 516 F.3d 122, 127
37 (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d
38 19, 26 (2d Cir. 2006)). “The procedural inquiry focuses
39 primarily on the sentencing court’s compliance with its
40 statutory obligation to consider the factors detailed in 18
41 U.S.C. § 3553(a), while the substantive inquiry assesses the
42 length of the sentence imposed in light of the § 3553(a)
43 factors.” Id. (internal citations, brackets, and quotation
44 marks omitted).
2
1 1. Procedural Reasonableness
2
3 Oswald contends that when a district court imposes a
4 term of supervised release, it must again analyze the §
5 3553(a) factors, and do so on a basis independent from its
6 analysis supporting a sentence of incarceration. We
7 disagree. “[W]e do not require robotic incantations that
8 the district court has considered each of the § 3553(a)
9 factors,” Cavera, 550 F.3d at 193, and a district court may
10 “engage[] in a single consideration of the sentencing
11 factors, which embrace[s] both the incarceration sentence
12 and the supervised release term,” United States v. Presto,
13 498 F.3d 415, 419 (6th Cir. 2007).
14
15 Oswald also argues that the district court failed to
16 adequately explain the reasons for a lifetime term of
17 supervised release. While “we presume ‘that a sentencing
18 judge has faithfully discharged her duty to consider the
19 statutory factors,’” Verkhoglyad, 516 F.3d at 129 (quoting
20 Fernandez, 443 F.3d at 30), the district court here provided
21 an adequate explanation for imposing the lifetime term based
22 on the § 3553(a) factors. In particular, the district court
23 focused on the nature of the crimes committed by Oswald, the
24 risk of recidivism, the risk to the public, and Oswald’s
25 need for mental health treatment. See Sentencing Hrg. Tr.,
26 J.A. at 50-53. The record reflects that the stated reasons
27 informed both components of Oswald’s sentence.
28
29 2. Substantive Reasonableness
30
31 For the same reasons articulated by the district court
32 at its sentencing hearing and in its statement of reasons,
33 we conclude that Oswald’s lifetime term of supervised
34 release is substantively reasonable given the risk he has
35 been found to pose to the public. Under the circumstances,
36 we cannot say the district court’s sentence is so
37 exceptional as to fall outside “the range of permissible
38 decisions.” Cavera, 550 F.3d at 189 (quoting United States
39 v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
40
41
42
43
3
1 For the foregoing reasons, and finding no merit in
2 Oswald’s other arguments, we hereby AFFIRM the judgment of
3 the district court.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
4