17‐0653‐cr United States v. Gregory Kurzajczyk

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of February, two thousand eighteen.

PRESENT: RALPH K. WINTER, GERARD E. LYNCH, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 17‐0653‐cr

GREGORY KURZAJCZYK, AKA GRZEGORZ KURZAJCZYK, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: Michael S. Barnett, Carina H. Schoenberger, Assistant United States Attorneys, for Grant C. Jaquith, Acting United States Attorney for the Northern District of New York, Syracuse, New York.

FOR DEFENDANT‐APPELLANT: Molly K. Corbett, James P. Egan, Assistant Federal Public Defenders, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Albany, New York.

Appeal from the United States District Court for the Northern District of

New York (DʹAgostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Gregory Kurzajczyk appeals from a judgment

entered January 10, 2017, sentencing him to 72 monthsʹ imprisonment followed by a life

term of supervised release. Kurzajczyk pleaded guilty to a two‐count indictment for

distribution and receipt of child pornography in violation of 18 U.S.C.

§§ 2252A(a)(2)(A), (b)(1) and 2256(8)(A). We assume the partiesʹ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

Between July 2014 and January 2015, using peer‐to‐peer file sharing

software, undercover law enforcement officers downloaded pictures and videos

depicting child pornography from a computer associated with Kurzajczykʹs residence.

In April 2015, law enforcement officers searched Kurzajczykʹs home pursuant to a

federal search warrant and seized his electronic devices. Forensic analyses of the 2

electronic devices revealed thousands of images depicting child pornography, including

images of children under the age of twelve.

On April 14, 2015, Kurzajczyk was charged by criminal complaint with

distribution of child pornography. Kurzajczyk was released on bond subject to certain

conditions. On June 22, 2016, a federal grand jury returned an indictment charging

Kurzajczyk with distribution and receipt of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2)(A) and (b)(1). On September 2, 2016, Kurzajczyk pleaded guilty to both

counts of the indictment. At the conclusion of the hearing, the district court remanded

Kurzajczyk for, inter alia, violating the conditions of his pre‐trial release. Although he

had been ordered not to possess or use a computer or internet‐capable device, probation

officers found Kurzajczyk in possession of a laptop computer, thumb drive, and

internet‐capable cellular telephone. Kurzajczyk admitted accessing the internet and

using the laptop to transfer adult pornographic images.

The presentence investigation report (the ʺPSRʺ) calculated Kurzajczykʹs

guideline range of imprisonment to be 151‐188 months, based on a total offense level of

34 and a criminal history of category I. The PSR also noted a minimum term of

supervised release of five years with a maximum term of supervised release of life, and

3 that the Sentencing Commission recommends the statutory maximum term of

supervised release when the conviction is a sex offense.

On January 10, 2017, the district court sentenced Kurzajczyk to two

concurrent terms of 72 monthsʹ imprisonment followed by two concurrent life terms of

supervised release. Kurzajczyk filed an untimely notice of appeal on March 2, 2017.

The government moved to dismiss the appeal and Kurzajczyk cross‐moved to remand

for the re‐entry of judgment. After both motions were withdrawn, this Court ordered

Kurzajczykʹs appeal to proceed to briefing.

On appeal, Kurzajczyk argues that the sentence is procedurally

unreasonable because the district court failed to state its reasons for imposing the

maximum term of supervised release. Moreover, he argues the sentence of lifetime

supervised release is substantively unreasonable because it is unduly harsh and

burdensome given Kurzajczykʹs lack of criminal history, his offense characteristics, and

his commitment to treatment.

We review sentencing decisions for procedural and substantive

reasonableness. See United States v. Cavera,

(2d Cir. 2008) (en banc);

United States v. Verkhoglyad,

(2d Cir. 2008). We apply a "deferential

abuse-of-discretion" standard to both procedural and substantive review. Cavera, 550

4 F.3d at 189 (quoting Gall v. United States,

(2007)). A sentence is

substantively unreasonable if it "cannot be located within the range of permissible

decisions,"

(quoting United States v. Rigas,

(2d Cir. 2007)), that is, a

sentence is substantively unreasonable if it "shock[s] the conscience," constitutes a

"manifest-injustice," or is otherwise substantively unreasonable, United States v. Rigas,

(2d Cir. 2009).

In sentencing a defendant, a district court must consider the factors set

forth in

(a), including the nature and circumstances of the offense; the

history and characteristics of the defendant; and the need for the imposed sentence to

reflect the seriousness of the offense, afford adequate deterrence to criminal conduct,

and protect the public from further crimes of the defendant. See

(c). In

setting a term of supervised release after imprisonment, the court must consider all of

these factors, except the factor set forth in

(a)(2)(A) -- the need for the

sentence to reflect "the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense."

The reason for this difference in

sentencing factors is that "[s]upervised release is not, fundamentally, part of the

punishment; rather its focus is rehabilitation." United States v. Aldeen,

(2d Cir. 2015); see also United States v. Burden,

(2d Cir. 2017) (per curiam)

(explaining that Congress's omission of the § 3553(a)(2)(A) factor accords with the

purposes of supervised release to fulfill rehabilitative ends).

5 The district court must state the reasons for its imposition of the sentence

in open court.

(c). The failure to adequately explain its chosen sentence

may constitute procedural error. Cavera,

. These concepts apply to both

terms of imprisonment and supervised release. See Aldeen,

.

Because Kurzajczyk did not raise his arguments during the sentencing

proceeding, we review the sentencing decision of the district court for plain error.

United States v. Alvarado,

(2d Cir. 2013) (per curiam) (ʺWhere, as here, a

defendant contests the procedural reasonableness of his sentence on appeal, but did not

raise his objections before the district court, we review for plain error.ʺ) (citation

omitted). ʺA finding of ʹplain errorʹ requires that: (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellantʹs substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affects the fairness, integrity

or public reputation of judicial proceedings.ʺ

(citation omitted).

The district court did not commit plain error in determining its sentence

because it adequately considered the applicable § 3553(a) factors. The court stated in

open court that it considered the PSR, addendum, submissions by counsel, the

Sentencing Guidelines, and the § 3553(a) factors. The court adopted ʺthe factual

6 information and the guideline applications contained in the [PSR],ʺ without objection

from defense counsel. Appʹx at 75. Additionally, the court enumerated specific reasons

for its decision, including: ʺthe advanced age of [Kurzajczyk], his lack of criminal

history, his family circumstances and his medical conditions,ʺ as well as his ʺconduct,

which includes the distribution and receipt of child pornography including images and

videos depicting prepubescent minors and sadistic and masochistic conduct

demonstrat[ing] that he does have a sexual interest in children and this warrants a

substantial sentence above the mandatory minimum.ʺ Appʹx at 76‐77. The court

concluded that ʺthe sentence to be imposed is sufficient but not greater than necessary

to meet the goals of sentencing outlined in Section 3553(a), including the need for the

sentence to reflect the seriousness of the offense, promote respect for the law and

provide just punishment for the offense, for a deterrence to criminal conduct and to

protect the public from further crimes.ʺ Appʹx at 77. With respect to the special

conditions of supervised release, the court noted that they were ʺnecessary and justified

in this case based on the nature of the instant offense, as well as the history and

characteristics of the defendant as outlined in detail in the [PSR].ʺ Appʹx at 78.

The district courtʹs stated reasons for the sentence applied to the entire

sentence, not just imprisonment, as Kurzajczyk argues. We do not require that the

7 district court separately justify each component of a sentence, but rather that it look at

the decision holistically. See Cavera,

(noting ʺwe do not require ʹrobotic

incantationsʹʺ or ʺformulaic or ritualized burdensʺ). It is clear from the record that the

district court considered the relevant factors outlined above in imposing both the prison

sentence and term of supervised release. With respect to supervised release, the district

court remarked on the nature of the offense and the defendantʹs history and

characteristics, which adequately explains the decision using permissible factors.

Accordingly, Kurzajczyk has not demonstrated any error, let alone plain error, and this

sentence was procedurally reasonable.

We further find the sentence substantively reasonable. First, a life term of

supervision for this type of crime is permitted under the statute and the Sentencing

Guidelines. See

(k); U.S.S.G. § 5D1.2(b)(2) (policy statement). Second,

the Guidelines recommend a life term of supervised release for sex offenses, U.S.S.G.

§ 5D1.2(b)(2) (policy statement), which includes distribution of child pornography,

U.S.S.G. § 5D1.2 cmt. n.1. Third, congressional reports indicate high rates of recidivism

for sex offenders as a reason to recommend lifetime supervised release. See H.R. Rep.

No. 107‐527, at 2 (2002). Finally, we have consistently affirmed life terms of supervised

release for similar crimes. See, e.g., United States v. Hayes,

(2d Cir. 2006)

8 (affirming lifetime supervised release sentence for defendant convicted of distributing

child pornography). We conclude that the life term of supervised release here was

substantively reasonable.

. . .

We have considered Kurzajczykʹs remaining arguments and find them to

be without merit. Accordingly, we AFFIRM the district courtʹs judgment.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk of Court

9