Motion for summary affirmance of a sentence imposed on defendant Charles Davis by the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge). We have concluded that Davis's appeal of his sentence is not frivolous and therefore denied the motion. We now explain the reasons for our conclusion.
The opinion of the court was delivered by: Sack, Circuit Judge
Submitted: March 10, 2009
Before: WINTER and SACK, Circuit Judges, and COGAN, District Judge.*fn1
This is a motion for summary affirmance of a sentence before the appeal of the sentence has been fully briefed. After pleading guilty to the receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (a)(5)(B), respectively, the defendant, Charles A. Davis, was sentenced by the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge) to 97 months' imprisonment, followed by a 12-year term of supervised release. Davis appealed the sentence on the grounds that it was procedurally and substantively unreasonable. Instead of filing an opposition brief, the government moved for summary affirmance, arguing that Davis failed to raise any non-frivolous issues on appeal.
The government's motion was briefed and submitted to the Court without argument on March 10, 2009. On that date, we denied the motion with opinion to follow. This is that opinion.
On February 8, 2008, Davis pleaded guilty to both counts of a two-count indictment charging him with receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) & (a)(5)(B). The mandatory minimum sentence for these offenses was 60 months' imprisonment. See id. § 2252A(b)(1)-(2). The Probation Department calculated the Sentencing Guidelines range to be 97 to 121 months' imprisonment, and neither party disputes that calculation. See Def.'s Sentencing Mem. at 2.
In his sentencing memorandum to the district court, Davis argued that he should be sentenced to the mandatory minimum of 60 months. He emphasized that he had never acted inappropriately with any child, or traded or distributed pornographic materials. He also pointed out that he was 57 years old and suffered from multiple severe medical problems, including mental health issues. The government requested a sentence within the Guidelines range of 97 to 121 months.
At sentencing on June 20, 2008, defense counsel again urged the district court to sentence Davis to the mandatory minimum. Counsel stressed Davis's age and poor health. The government countered that a sentence within the Guidelines range would be reasonable and that "to deviate to the mandatory minimum would be a large deviation and there's no reason in this case for such a deviation." Tr. 4.*fn2
The district court agreed with the government. The court explained: "Having reviewed the case, I see no reason to deviate from the ranges that are set forth in the Sentencing Guidelines." Tr. 4. The court indicated that it would impose a sentence at the bottom of the Guidelines range.
Davis was then given the opportunity to address the court. Davis said that there were "mitigating circumstances" that he had not had the opportunity to present to the probation officer, Tr. 6, although some of those circumstances appear to have been reflected in psychiatric records that were summarized to the district court in an addendum to the Pre-Sentence Report prepared by the Probation Office, see Tr. 8-9; Addendum to PreSentence Report. Davis told the court that he felt "like [he was] being shoved through the system." Tr. 7. The court asked Davis if he wanted an adjournment. Davis declined to make that decision, asking the court to make the decision for him. The court decided to proceed with the sentencing.
The court sentenced Davis to 97 months' imprisonment, at the bottom of the Guidelines range, to be followed by a term of 12 years' supervised release. Davis immediately indicated that he wished to appeal his sentence, which the court assured him he would have the opportunity to do. Davis said ...