U.S.A v. Davis

• Decision Date: 10 March 2009
• Docket Number: Docket No. 08-3240-cr.
• Citation: 598 F.3d 10
• Parties: UNITED STATES of America,Appellee, v. Charles A. DAVIS, Defendant,Appellant.
• Court: U.S. Court of Appeals — Second Circuit

598 F.3d 10

UNITED STATES of America, Appellee, v. Charles A. DAVIS, Defendant, Appellant.

Docket No. 08-3240-cr.

United States Court of Appeals Second Circuit.

Submitted: March 10, 2009.

Decided: March 10, 2009.

Opinion Filed: March 15, 2010.

Paul D. Silver, Assistant United States Attorney, for Andrew T. Baxter, Acting United States Attorney, Albany, NY, for Appellee.

James F. Greenwald, Assistant Federal Public Defender, for Alexander Bunin Federal Public Defender, (James P. Egan Research & Writing Attorney, of counsel) Syracuse, NY, for Defendant-Appellant.

Before WINTER and SACK, Circuit Judges, and COGAN, District Judge.^*

SACK, Circuit Judge:

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.

BACKGROUND

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)(l)-(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. 4.¹

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 Pre-Sentence 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 that he had not hurt anybody and once again mentioned his health problems.

The judgment against Davis was entered on June 26, 2008. Davis filed a notice of appeal the same day. Through counsel, he makes two arguments on appeal.

First, he contends that his sentence is procedurally unreasonable because the district court wrongly treated the Sentencing Guidelines as presumptively reasonable. See Nelson v. United States, -U.S.-,-, 129 S.Ct. 890, 892, 172 L.Ed.2d 719 (2009) (per curiam) ("The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.") (emphasis in original). Davis finds factual support for this argument in the district court's statement that it would impose a Guidelines sentence because it saw "no reason" to depart from the Guidelines range.

Second, Davis asserts that his sentence is substantively unreasonable. He argues that in light of his age and poor health, a sentence of 97 months' imprisonment is effectively a life sentence, which is greater than necessary to satisfy the goals of just punishment. Cf. United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009) (review of sentence for substantive reasonableness "requires an examination of the length of the sentence"); 18 U.S.C. § 3553(a) ("The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection."); id. § 3553(a)(2)(A) (listing purposes of sentence, including "to provide just punishment for the offense"). Davis also argues that the district court failed to consider "the nature and circumstances of the offense and the history and characteristics of the defendant, " as it was required to do. Id. § 3553(a)(1). In arguing that his sentence is substantively unreasonable, Davis stresses, as he did before the district court, that he neither distributed nor traded child pornography.

The government moves for summary affirmance of the district court's sentence. The motion was filed in lieu of an opposition brief in the underlying appeal.²

The government argues that summary affirmance is warranted because Davis has failed to raise any non-frivolous issues on appeal. It contends that nothing in the record supports Davis's assertion that the district court presumed that the Sentencing Guidelines were reasonable, and that the argument of procedural unreasonableness is therefore frivolous. The government further argues that nothing in the record supports Davis's assertion that his sentence is substantively unreasonable because the district court indicated that it had considered all of the factors outlined in 18 U.S.C. § 3553(a) and all of the parties' arguments. The government also relies on the fact that the Sentencing Guidelines generally do not call for a downward departure because of age and medical conditions, and that the calculation of the Guidelines range by the Probation Department did take into account the fact that Davis did not traffic in or distribute child pornography.

DISCUSSION

I. Motions for Summary Affirmance

Summary affirmance of a district court's decision in place of full merits briefing and, at the discretion of the court argument is, and should be treated as, a rare exception to the completion of the appeal process. It is a short-cut and, in light of the liberty and property rights involved, one that is available only if an appeal is truly "frivolous." United, States v. James, 280 F.3d 206, 209 (2d Cir.2002); see also United States v. Torres, 129 F.3d 710, 717 (2d Cir.1997) (summary affirmance warranted where defendant "presents no non-frivolous issues for appeal"). The unique importance of criminal appeals makes the decision to characterize one as frivolous particularly perilous. Cf. United States v. Rosa, 123 F.3d 94, 98 (2d Cir. 1997) ("[W]e have held that the right to appeal serves important interests of both the criminal defendant and of the public at large, so that waivers of that right must be closely scrutinized and applied narrowly.").

"An appeal is frivolous when it 'lacks an arguable basis either in law or in fact.' A frivolous action advances 'inarguable legal conclusions' or 'fanciful factual allegations.' " Tafari v. Hues, 473 F.3d 440, 442 (2d Cir.2007) (quoting Neitzke v. Williams 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)) (internal citations and alterations omitted).³ More than a findingthat the correct resolution of an appeal seems obvious is required. See Utica Mut. Ins. Co. v. Fireman's Fund Ins. Cos. 748 F.2d 118, 119-20 (2d Cir.1984) (concluding that "the district court was clearly correct, " but refusing to award costs and fees for defending the appeal because "the appeal is not frivolous"); United States v. Gironda, 283 F.2d 911, 912 (2d Cir.1960) (per curiam) (denying government's motion to dismiss appeal as frivolous even though claim on appeal was for deprivation of right to choice of counsel and it was "clear" that defendant was "thoroughly and effectively represented" such that "he was not deprived of counsel"); see also Bobula v. United States Dep't of Justice, 970 F.2d 854, 862 (Fed.Cir.1992) (appeal not frivolous despite "clear deficiencies"); United States v. Hodges, 190 Fed.Appx. 221, 222 (4th Cir.) (per curiam) (summary affirmance only appropriate in "extraordinary cases") (internal quotation marks omitted), cert, denied, 549 U.S. 1014, 127 S.Ct. 545, 166 L.Ed.2d 403 (2006); Legal Servs. of N. Cat., Inc. v. Arnett, 114 F.3d 135, 141 (9th Cir. 1997) (appeal not frivolous despite plaintiffs' knowledge "that their position was unsupported by existing precedent"). Easy cases are to be distinguished from inarguable or fanciful ones. Cf. United States v. Potamkin Cadillac Corp., 689...