Opinion
No. 10-1549-cr.
April 6, 2011.
Appeal from the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and REMANDED.
Molly Corbett, Assistant Federal Public Defender (Timothy Austin, Assistant Federal Public Defender, on the brief), for Alexander Bunin, Federal Public Defender for the Northern District of New York, Albany, NY, for Appellant.
Paul Silver, Assistant United States Attorney, (Elizabeth Horsman, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, NY, for Appellee.
PRESENT: CHESTER J. STRAUB, ROBERT D. SACK and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
In August 2009, Joseph Mark Shay pled guilty to receipt and distribution of child pornography. See 18 U.S.C. §§ 2252A (a)(2), 2256(8)(a). After applying various enhancements, the district court calculated an offense level of 37 and a Guidelines range from 210 months' incarceration to the statutory maximum of 240 months, see id. § 2252A (a)(2); U.S.S.G. § 2G2.2, and sentenced Shay to 210 months' incarceration and supervised release for life.
The government contended at oral argument that 240 months did not represent the true maximum because Shay pled guilty to two counts, whose sentences could have run consecutively instead of concurrently. We need not address this contention, which does not affect our resolution of the appeal.
After sentence was imposed, this Court decided United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). Dorvee had been sentenced to just over 233 months' incarceration (effectively, the statutory maximum of 240 months minus a credit for time served on a related state sentence) for distribution of child pornography. We found his sentence both procedurally and substantively unreasonable, id. at 176, concluding that "it would be manifestly unjust to let Dorvee's sentence stand," id. at 188. In this case, the district court did not have the benefit of our opinion in Dorvee when it set Shay's sentence. The Guidelines calculation and offense conduct in Dorvee's case were strikingly similar to those in Shay's. Dorvee, like Shay, collected and distributed thousands of images with his computer, some of which involved prepubescent minors or sadistic conduct. Id. at 177. Dorvee had problems with his mental health, id. at 177-78; Shay has problems with his physical health. The biggest difference between them appears to be that Dorvee chatted with and distributed pornographic images to people he believed were minors, and was caught on his way "to meet, to photograph, and to engage in sexual conduct with" one of them. Id. at 176. There is no evidence, by contrast, that Shay ever attempted to contact or engage with minors in any inappropriate way.
On remand, the district court re-sentenced Dorvee to just over 121 months of incarceration.
While we are not prepared to hold at this time that Shay's sentence, like Dorvee's, was necessarily procedurally or substantively unreasonable, the similarity between the cases makes it appropriate, at a minimum, to vacate the judgment and remand to the district court, so that the district court can consider the potential effect of Dorvee on this case in the first instance, and decide whether the sentence it originally imposed remains appropriate in light of our reasoning in Dorvee, or whether there are distinguishing factors in this case that are not apparent on the record before us.
For the foregoing reasons, we VACATE and REMAND Shay's sentence for further consideration in light of Dorvee.