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United States of America v. Brandon Michael Lifshitz

April 23, 2013

UNITED STATES OF AMERICA, APPELLEE,
v.
BRANDON MICHAEL LIFSHITZ, DEFENDANT-APPELLANT.



Appeal from the amended May 18, 2011 judgment of the United States District Court for the Southern District of New York (Loretta Preska, C.J.) sentencing Brandon Michael Lifshitz to a term of 24 months' imprisonment and 12 months' supervised release after revoking his supervised release for failure to comply with the terms set forth by the district court as conditions for his release.

Per curiam.

11-2078

United States v. Lifshitz

Submitted: May 17, 2012

Before: KEARSE, POOLER, and LIVINGSTON, Circuit Judges.

Lifshitz argues the district court committed error in his sentencing by impermissibly basing the length of his sentence on his rehabilitative needs. We agree that when sentencing a defendant after revoking a term of supervised release, a district court may not sentence based on the defendant's need for rehabilitation. See Tapia v. United States, 131 S. Ct. 2382, 2391-92 (2011) (holding 18 U.S.C. § 3582(a) "precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation"). However, as the record makes clear that the district court did not sentence Lifshitz to further his rehabilitation, we affirm.

Affirmed.

Brandon Michael Lifshitz appeals from the amended May 18, 2011 judgment of the United States District Court for the Southern District of New York (Preska, C.J.) revoking his supervised release and sentencing him to a term of 24 months' imprisonment and 12 months' supervised release. Lifshitz argues the district court committed error in his sentencing by impermissibly basing the length of his sentence on his rehabilitative needs. We agree that when sentencing a defendant after revoking a term of supervised release, a district court may not sentence based on the defendant's need for rehabilitation. See Tapia v. United States, 131 S. Ct. 2382, 2391-92 (2011) (holding 18 U.S.C. § 3582(a) "precludes sentencing courts from imposing or lengthening a prison term to promote an offender's rehabilitation"). However, as the record makes clear that the district court did not sentence Lifshitz to further his rehabilitation, we affirm.

BACKGROUND

Lifshitz pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and was sentenced principally to three years' probation on April 7, 2003. Prior to the imposition of that sentence, Lifshitz was arrested and indicted for a separate crime, one count of distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) on the basis of new conduct.*fn1 Lifshitz pleaded guilty to the second indictment on September 14, 2004. He was sentenced on January 18, 2005, principally to 60 months' imprisonment, to be followed by five years' supervised release. The conditions attached to his supervised release included participation in a sex offender and/or mental health treatment program, abiding by the rules of the sex offender treatment program, and consenting to the use of monitoring programs on his computer.

Lifshitz was released from custody in August 2007 and began serving his term of supervised release. Lifshitz failed to comply with the terms of his supervised release. He missed multiple scheduled appointments at the sexual offender treatment program, he maintained a Facebook account even though such an account violated the terms of his treatment contract, and he failed to deactivate the account when ordered to do so. His treatment provider alerted the Probation Office that Lifshitz reported "communicating in a sexual manner with five minors via CB radio and a phone sex line." He repeatedly used unmonitored computers, including computers at libraries and cafes, to access the Internet. He regularly visited a public library located next to a preschool, even after being warned not to.

On March 25, 2011, the Probation Office filed a violation petition against Lifshitz, alleging four violations of his supervised release. Each alleged violation was a Grade C violation. U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 7B1.4. The applicable range under the sentencing guidelines was three to nine months' imprisonment, with a statutory maximum of not more than three years' imprisonment. Id.; 18 U.S.C. § 3583(e)(3). The Probation Office recommended a non-Guidelines sentence of 24 months' imprisonment, followed by 12 months' supervised release, on the grounds that Lifshitz's failure to comply with the terms of his supervised release indicated he was "not amenable to a community supervision term at this time," and that he posed "a threat to the community."

On April 15, 2011, Lifshitz pleaded guilty to Specifications One (failure to abide by the rules and requirements of the sex offender treatment program) and Three (unsupervised Internet use) in the petition. His counsel argued for a within-Guidelines sentence, arguing that Lifshitz's behavior was not really "the product of his will" because Lifshitz was mentally ill. Counsel told the district court at sentencing, "[w]e understand that his behavior during this past most recent phase of his supervision has really been atrocious, but it's not completely the product of his will, and that's why I view [this] as a sad case." Counsel also argued Lifshitz did not present a danger to the community because Lifshitz had never harmed a child, and that "as crazy as he is and as irresponsible as he has behaved, if he has that impulse -- and it is not clear that he does -- that is something that he has always been able to control."

The district court noted that Chapter 7 of the Sentencing Guidelines, which apply when sentencing an offender for violations of supervised release, "are, and always have ...


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