21-1262 United States v. Bacon

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM- MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED- ERAL 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 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 14th day of April, two thousand twenty-two.

Present: DEBRA ANN LIVINGSTON, Chief Judge, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 21-1262

JEFFREY BACON,

Defendant-Appellant. _____________________________________

For Appellee: NEERAJ N. PATEL (Marc H. Silverman, on the brief) for Leonard C. Boyle, Acting United States Attorney for the District of Connecticut, New Haven, CT.

For Defendant-Appellant: DANIEL M. ERWIN for Terence S. Ward, Federal De- fender for the District of Connecticut, Hartford, CT.

1 Appeal from a judgment of the United States District Court for the District of Connecticut

(Bryant, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jeffrey Bacon (“Bacon”) appeals from a May 13, 2021 judgment

principally sentencing him to 84 months’ imprisonment after he pleaded guilty to one count of

soliciting and attempting to solicit child pornography in violation of 18 U.S.C.

§ 2252A(a)(3)(B)(ii), (b)(1). Bacon contacted a 15-year-old girl in an online chat group called

“Connecticut Teens” and sent her sexually explicit messages and media. The girl’s mother noti-

fied law enforcement. A police officer began communicating with Bacon in an undercover ca-

pacity, posing as the underage girl. Among other sexually explicit messages, Bacon implored the

underage girl to send him sexually explicit photographs and suggested that he could pick her up

from high school and take her to a motel where they could engage in oral sex. Law enforcement

subsequently recovered images of child pornography on Bacon’s electronic devices, including im-

ages of adults engaged in sexual intercourse and oral sex with prepubescent girls. At sentencing,

and consistent with the Presentence Report, the district court calculated a Guidelines range of 108

to 135 months of imprisonment before pronouncing the below-Guidelines sentence of 84 months.

Bacon challenges both the procedural and substantive reasonableness of his sentence, prin-

cipally contending that the district court engaged in improper factfinding at sentencing. “We

review a sentence for procedural and substantive reasonableness under a deferential abuse-of-dis-

cretion standard.” United States v. Bleau,

(2d Cir. 2019). 1 “A sentence is

1 Unless otherwise indicated, we omit all internal citations, quotation marks, alterations, emphases, and footnotes from citations.

2 procedurally unreasonable if,” among other reasons, “the district court … selects a sentence based

on clearly erroneous facts[] or fails adequately to explain the chosen sentence.” United States v.

Sampson,

(2d Cir. 2018). Substantive reasonableness “focuses on a district

court’s explanation of its sentence in light of the factors contained in

(a).”

United States v. Matta,

(2d Cir. 2015). In reviewing a sentence’s substantive

reasonableness, we review “the length of the sentence imposed to determine whether it cannot be

located within the range of permissible decisions.”

“Generally, if the ultimate sentence is

reasonable and the sentencing judge did not commit procedural error in imposing that sentence,

we will not second guess the weight (or lack thereof) that the judge accorded to a given factor or

to a specific argument made pursuant to that factor.” United States v. Pope,

, 246–

47 (2d Cir. 2009). We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal, which we discuss only as necessary to explain our

decision to affirm.

I. Bacon’s Childhood Sexual Abuse

Bacon first challenges his sentence as both procedurally and substantively unreasonable

because, according to Bacon, the district court either made an unsupported factual finding that he

was “lying about his [childhood] experience with sexual assault” or improperly treated this expe-

rience as an aggravating, not mitigating, factor. Appellant’s Br. 11. We disagree. At the start,

even assuming arguendo that Bacon preserved this argument, the district court did not make a

factual finding that Bacon’s account of childhood sexual abuse was untruthful, nor did the credi-

bility of Bacon’s statement factor into its sentencing decision. The district court instead con-

cluded that Bacon had not shown a “nexus or connection between his childhood experiences and

his adult conduct decades and decades later.” Joint App’x 106. This was not an abuse of

3 discretion. And given its conclusion that Bacon had failed to show a “connection” between his

childhood experience and the offense conduct, the district court did not err in declining to afford

substantial mitigating weight to that experience. Moreover, because the district court did not base

its sentencing decision on whether Bacon had been sexually abused as a child, it did not err in

failing to hold a Fatico hearing. See United States v. Lohan,

(2d Cir. 1991)

(explaining that “[a] ‘Fatico’ hearing is a sentencing hearing at which the prosecution and the

defense may introduce evidence” on disputed issues of fact relating to the appropriate sentence

(citing United States v. Fatico,

(2d Cir. 1979)). Bacon’s additional arguments that

the district court treated his childhood experiences as an aggravating factor or otherwise burdened

his right to allocution are similarly unsupported by the record.

II. Bacon’s Prior Conviction for Public Indecency

Bacon next contends that the district court again engaged in impermissible factfinding,

rendering his sentence procedurally and substantively unreasonable, by going “beyond the record

to conclude that Mr. Bacon’s prior misdemeanor offense involved or had a nexus to child[ren].”

Appellant’s Br. 7. We disagree. Again, even assuming arguendo that Bacon preserved this ob-

jection, the district court did not err in its evaluation of Bacon’s misdemeanor offense.

Bacon does not dispute that he was previously arrested and pleaded guilty to public inde-

cency for masturbating at a campground. See, e.g., Joint App’x 93. Addressing this prior of-

fense at sentencing, the district court observed that children are often present at campgrounds.

See

at 89–90. Defense counsel agreed. See id. at 93 (“I assume all campgrounds are family

campgrounds. I’m not going to dispute that.”). The district court noted that Bacon had also

been charged with risk of injury to a child in connection with this conduct and observed that there

“must have been a probable cause finding” associated with that charge. Id. at 97. Defense

4 counsel countered that because the prosecutor had voluntarily dismissed that charge, the state court

did not necessarily make a probable cause finding as to that specific charge. Id. at 97–98. The

district court agreed with defense counsel’s argument. Id. at 98. Later in the sentencing, the

district court expressed concern that Bacon’s conduct was “[e]scalating from simply exposing

himself to attempting to entice others to gratify him sexually after exposing himself.” Id. at 105.

Upon a careful review of the record, we discern no abuse of discretion in the district court’s

assessment of Bacon’s prior conviction. The district court suggested that by publicly exposing

himself at a campground, Bacon may have risked exposing himself to children because families

with children often stay at campgrounds. That common-sense inference was not an abuse of dis-

cretion. See United States v. Rogers,

(2d Cir. 1992) (noting “the traditional

role of a district judge in bringing … common sense to the sentencing process”); United States v.

Cavera,

(2d Cir. 2008) (en banc) (Raggi, J., concurring) (“[W]hen the issue to

be resolved is factual, the law expects the factfinder—whether judge or jury—to draw on common

sense and experience in making any determination.”). The district court did not suggest that Ba-

con was targeting children by exposing himself at a campground and, after discussion with coun-

sel, agreed that as to this conduct, the record did not provide a basis for concluding that a judicial

officer had found probable cause that Bacon had committed the offense of risk of injury to a child.

The district court thus did not, as Bacon now argues, make a factual finding that his prior

offense involved children. The district court’s primary concern about Bacon’s prior conviction

was that his behavior was “escalating” from “simply exposing himself to attempting to entice oth-

ers to gratify him sexually.” Joint App’x 105. We discern no error in the district court’s con-

sideration of Bacon’s prior conviction.

5 III. Substantive Reasonableness of 84-Month Sentence

Finally, Bacon suggests that his 84-month sentence is substantively unreasonable because

the district court imposed a sentence four months above the maximum the government recom-

mended. As Bacon acknowledges, however, an 84-month sentence was substantially below his

108 to 135 month Sentencing Guidelines range. Cf. United States v. Alcius,

, 89 (2d

Cir. 2020) (“It is … difficult to find that a below-Guidelines sentence is [substantively] unreason-

able.”). In any event, it is “not unreasonable for the District Court to impose a sentence longer

than that recommended by the probation officers or the government, because the recommendations

of the probation officers or the prosecution do not bind the District Court’s discretion in sentencing

defendants.” United States v. Adams,

(2d Cir. 2010) (citing United States v.

Avello-Alvarez,

, 545–46 (2d Cir. 2005)). The district court did not abuse its dis-

cretion in weighing the § 3553(a) factors, see Joint App’x 103–05, so we decline to “second

guess,” Pope,

, the district court’s considered judgment that an 84-month sentence

was appropriate in this case.

* * *

We have considered Bacon’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the district court’s judgment.

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

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