United States v. Beardsley , 536 F. App'x 161 ( 2013 )

12-4828
United States v. Beardsley
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 29th day of October, two thousand thirteen.
5
6 PRESENT: RALPH K. WINTER,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 12-4828
16
17 WAYNE BEARDSLEY,
18 Defendant-Appellant,
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20
21 FOR APPELLANT: Melissa A. Tuohey (James P.
22 Egan, on the brief), for Lisa A.
23 Peebles, Federal Public
24 Defender, Syracuse, New York.
25
26 FOR APPELLEES: Brenda K. Sannes, for Richard
27 Hartunian, United States
28 Attorney for the Northern
29 District of New York, Syracuse,
30 New York.
1
1 Appeal from a judgment of the United States District
2 Court for the Northern District of New York (Suddaby, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Defendant Wayne Beardsley appeals from a sentence
9 imposed by the United States District Court for the Northern
10 District of New York (Suddaby, J.), following a guilty plea
11 to receiving and possessing child pornography, in violation
12 of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
13 Beardsley was sentenced to 180 months’ imprisonment
14 (concurrent with 120 months for the second charge in this
15 case), lifetime supervised release, and a special assessment
16 of $200. On appeal, Beardsley argues the sentence was
17 substantively unreasonable. We assume the parties’
18 familiarity with the underlying facts, the procedural
19 history, and the issues presented for review.
20
21 We review all sentences for reasonableness. United
22 States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011) (citing
23 United States v. Booker, 543 U.S. 220, 260-62 (2005)).
24 “[S]ubstantive reasonableness reduces to a single question:
25 ‘whether the District Judge abused his discretion in
26 determining that the § 3353(a) factors supported’ the
27 sentence imposed.” United States v. Jones, 531 F.3d 163, 170
28 (2d Cir. 2008). In answering this question, we “set aside a
29 district court’s substantive determination only in
30 exceptional cases where the trial court’s decision cannot be
31 located within the range of permissible decisions.” United
32 States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc)
33 (internal quotation marks omitted). See also United States
34 v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (requiring
35 sentence to be “shockingly high, shockingly low, or
36 otherwise unsupportable” for substantive unreasonableness).
37
38 Beardsley challenges the weight given to various
39 sentencing factors in the sentencing decision, but his
40 arguments are unavailing. The district court properly
41 considered Beardsley’s previous conduct as a juvenile in
42 molesting three other children–-particularly in light of
43 Beardsley’s subsequent conduct as an adult. Beardsley’s
44 objection to consideration of his juvenile conduct in the
2
1 presentence report was waived when he failed to object on
2 those grounds during sentencing. See United States v. Caba,
3 955 F.2d 182, 187 (2d Cir. 1992) (holding defendant’s
4 failure to object to the drug quantity assessment in the
5 presentence report at sentencing was a waiver of the issue
6 on appeal). As to his previous conviction for endangering a
7 child, the court properly focused on the conduct underlying
8 the conviction. Beardsley’s argument that the district
9 court failed to adequately weigh his efforts at
10 rehabilitation are unsupported by the record. The district
11 court simply reached a different conclusion after its
12 review: that the failure of Beardsley’s attempts at
13 treatment evidence his threat to the public. There is no
14 reason to disturb the district court’s judgment here.
15
16 Finding no merit in Beardsley’s remaining arguments, we
17 hereby AFFIRM the judgment of the district court.
18
19 FOR THE COURT:
20 CATHERINE O’HAGAN WOLFE, CLERK
21
3