19-2996 United States v. Talada

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 TO 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 5th day of October, two thousand twenty.

PRESENT: DENNIS JACOBS GERARD E. LYNCH, RICHARD J. SULLIVAN, Circuit Judges. -------------------------------------------------------------- UNITED STATES OF AMERICA,

Appellee,

v. No. 19-2996

CHAD AARON TALADA,

Defendant-Appellant. -------------------------------------------------------------- FOR APPELLANT: JAY S. OVSIOVITCH, Federal Public Defender’s Office, Rochester, NY.

FOR APPELLEES: TIFFANY H. LEE, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Defendant-Appellant Chad Talada appeals from a judgment of conviction

entered in the United States District Court for the Western District of New York

(Siragusa, J.) following his guilty plea to one count of knowingly receiving child

pornography following a prior conviction in violation of 18 U.S.C.

§ 2252A(a)(2)(A) & 2252A(b)(1). The district court sentenced Talada to 360

months’ imprisonment and fifteen years of supervised release. On appeal, Talada

argues that his sentence was unreasonable because the district court applied

§ 2G2.2 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

without considering unwarranted sentencing disparities that can result under that

2 Guideline. He also challenges two conditions of his supervised release: the

standard “notification of risk” condition and a special condition requiring that he

submit to verification testing. We assume the parties’ familiarity with the

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

we refer only as necessary to explain our decision.

1. Talada’s Sentence Was Reasonable

We review a district court’s sentencing decision for procedural and

substantive reasonableness “under a deferential abuse-of-discretion standard.”

United States v. Cavera,

(2d Cir. 2008) (internal quotation marks

omitted). A sentencing court commits procedural error if, among other things, it

“treats the Guidelines as mandatory,” “does not consider the [18 U.S.C.] § 3553(a)

factors,” or “fails adequately to explain its chosen sentence.” Id. at 190. A sentence

is substantively unreasonable “only in exceptional cases where the trial court’s

decision cannot be located within the range of permissible decisions.” Id. at 189

(internal quotation marks omitted).

Talada argues that the district court procedurally erred because it

“committed an error of law” and “failed to fully consider” United States v. Spoor,

(2d Cir. 2018), and United States v. Dorvee,

(2d Cir. 2010).

3 Talada Br. at 18. In those cases, this Court acknowledged our “concern that the

child pornography guideline, U.S.S.G. § 2G2.2, does not adequately distinguish

between mere possession offenses and relatively more serious crimes . . . and tends

to wash out differences in criminal history.” Spoor,

n.13 (citing

Dorvee,

). We thus warned that rote adherence to the Guideline can

lead to “virtually no distinction between the sentences” among relatively low-risk

offenders and the most dangerous ones. Dorvee,

.

The record here does not support Talada’s contention that the district court

failed to consider Dorvee or the § 3553(a) factors, including the need to avoid

unwarranted sentencing disparities. See App’x at 106–07 (district court expressly

stating that it had considered the various factors and understood that the

Sentencing Guidelines are “advisory” and “not mandatory”). Noting that it was

“very familiar” with Dorvee, id. at 114, and “fully underst[ood] that it [could]

depart downward,” id. at 110, the court nevertheless determined that a 360-month

sentence was necessary to “protect the public from further crimes” by Talada, id.

at 115. See also id. at 110–11. And while the court recognized the concern in Dorvee

and Spoor that § 2G2.2 could elide differences in criminal history or conduct, the

court distinguished the facts at issue in those cases, finding that Talada’s multiple

4 prior convictions and violations of supervised release – which related to child

pornography or actual contact with minors – supported the conclusion that Talada

was a recidivist who “demonstrated over and over” that he was “unable to stop

committing child exploitation crimes.” Id. at 115. We find no procedural error

where the court properly calculated the Guidelines range and reviewed case-

specific factors, including Talada’s criminal history and conduct on supervised

release, to determine the appropriate sentence.

To the extent that Talada suggests his sentence is substantively

unreasonable, that argument also fails. For starters, Dorvee does “not stand for the

proposition that nearly any sentence for child pornography above the mandatory

minimum is substantively unreasonable.” United States v. Muzio,

(2d Cir. 2020). As we have explained, our warning in Dorvee that a

“straightforward application of the sentencing Guidelines can lead to

unreasonable sentences” arose in the “limited context” and “narrow

circumstances” present in that case, which involved, among other things, a

defendant who – unlike Talada – “had no contact with children,” even virtually.

at 64–65 (internal quotation marks omitted). The fact that subsequent courts

considering Dorvee may have found similarly narrow circumstances and

5 sentenced defendants “at the bottom of or below the Guidelines range,” Talada Br.

at 36, is of no moment, since Talada’s conduct and history are readily

distinguishable. We are satisfied that the district court carefully applied the

Guidelines, considering Talada’s past conduct and poor adjustment to supervised

release, and imposed a sentence that was neither “shockingly high” nor

“otherwise unsupportable as a matter of law.” United States v. Rigas,

(2d Cir. 2009). Applying our deferential standard of review, we conclude that

the sentence was substantively reasonable and would in no way “damage the

administration of justice.” Id.

2. Talada’s Challenges To The Conditions Of His Supervised Release Are Unavailing

Talada initially challenged two conditions of his supervised release: the

standard notification of risk condition, and a verification testing condition that

would permit the use of a computerized voice stress analyzer (“CVSA”) or “other

. . . testing” chosen by the probation officer. As he later acknowledged in a letter

filed under Federal Rule of Appellate Procedure 28(j), his challenges to the risk

condition and to the inclusion of the CVSA in the verification testing condition are

not ripe for review under our recent opinions in United States v. Traficante,

(2d Cir. 2020), and United States v. Birkedahl,

(2d Cir. 2020),

6 respectively. And Talada’s contention that the probation office should not be

permitted to use undefined “other . . . testing” is foreclosed by United States v.

Villafane-Lozada, __ F.3d __,

, at *4 (2d Cir. 2020), which squarely

rejected the defendant’s argument that an “open-ended” verification condition

that “left to the probation officer . . . the type of testing that would be employed”

constituted an impermissible delegation of judicial discretion that would “allow

the probation officer to subject him to any number of invasive testing

technologies,”

We have considered Talada’s remaining arguments and conclude that they

are without merit. Accordingly, we DISMISS as unripe Talada’s challenges to the

risk condition and to the inclusion of the CVSA in the verification testing condition

and otherwise AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

7