12-471-cr United States v. Culver 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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 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 19th day of March, two thousand thirteen. PRESENT: DENNIS JACOBS, Chief Judge, AMALYA L. KEARSE, SUSAN L. CARNEY, Circuit Judges. - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, Plaintiff-Appellee, -v.- 12-471-cr LAURA CULVER, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - FOR APPELLANT: RONALD B. RESETARITS for Terence S. Ward, Federal Defender, New Haven, CT. FOR APPELLEE: KRISHNA R. PATEL for David B. Fein, United States Attorney, District of Connecticut (Sandra S. Glover on the brief), Bridgeport, CT. 1 1 2 3 4 5 6 7 8 Appeal from a judgment of the United States District Court for the District of Connecticut (Eginton, J.). 9 States District Court for the District of Connecticut UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be VACATED and REMANDED. Laura Culver appeals from the order of the United 10 (Eginton, J.), sentencing her to serve 96 months in prison 11 for producing child pornography of a minor child under her 12 custody and control, in violation of 18 U.S.C. ? 2251(a). 13 We assume the parties' familiarity with the underlying 14 facts, the procedural history, and the issues presented for 15 review. 16 We review a district court's sentencing decision for 17 procedural and substantive reasonableness. Gall v. United 18 States, 552 U.S. 38, 51 (2007); United States v. Booker, 543 19 U.S. 220, 260-62 (2005). 20 procedurally unreasonable because the district court made 21 multiple references to Facebook, which had little to no 22 application to the facts of her case; and that the sentence 23 is substantively unreasonable because the judge gave 24 outsized influence to Facebook, instead of other relevant 25 factors. Culver argues that her sentence is 2 1 Culver did not object to the district court's 2 discussion of Facebook at the sentencing. 3 concerning the court's improper consideration" of an 4 extraneous factor "should be reviewed for plain error." 5 U.S. v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011). 6 establish plain error, [an] appellant must show there was 7 (1) error (2) that is plain and (3) that affects substantial 8 rights." 9 Her "allegations "To Id. at 86-87. In justifying its decision to impose a sentence of 10 eight years instead of six, the district court referenced 11 "Facebook, and things like it, and society has changed." 12 Sentencing Hr'g Tr. 47-48, Jan. 30, 2012. 13 speculated that the proliferation of Facebook would 14 facilitate an increase in child pornography cases. 15 court said it hoped Mark Zuckerberg (who founded Facebook) 16 was "enjoying all his money because . . . he's going to hurt 17 a lot of people . . . ." 18 The court The Id. at 16-17. Culver is correct that the court's lengthy discussion 19 of Facebook had no clear connection to the facts of her 20 case. 21 its own unsupported theory of deterrence at sentencing, 22 especially where, as here, that theory has little It is plain error for a district court to rely upon 3 1 application to the actual facts of the case itself. See, 2 e.g., Cossey, 632 F.3d at 88 ("It is uncontroversial to 3 conclude that a sentencing decision that relies on factual 4 findings that were unsupported in the record, and thus could 5 not possibly have been established by a preponderance of the 6 evidence, seriously affects the fairness, integrity, and 7 public reputation of judicial proceedings."); United States 8 v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007) ("[F]actual 9 matters considered as a basis for sentenc[ing] must have 10 some minimal indicium of reliability beyond mere 11 allegation.") (quotation omitted). 12 affected Culver's substantial rights; the court stated that 13 it would have granted a sentence of six years if not for its 14 concerns about Facebook and general deterrence. 15 Sentencing Hr'g Tr. at 42 ("[W]hat we're looking at is 16 general deterrence, and the general deterrence is very 17 important, and frankly, that's why I went to eight [years] 18 instead of six."). This error undoubtedly See 19 The government argues that the district court was 20 merely concerned about the extent to which various new 21 technologies may facilitate child pornography, rather than 22 Facebook specifically. In that sense, Facebook was a 4 1 reference to the internet, using synecdoche. 2 government does not explain (because it cannot) the role of 3 new technology in this case. 4 internet to commit her crime, and it should not have played 5 a predominant role in her sentencing. 6 remanded to the district court for resentencing consistent 7 with this opinion. 8 9 But the Culver did not use the The case is therefore This remand should not be construed to suggest that the sentence was substantively unreasonable. An eight-year 10 sentence was still a twenty percent reduction below the 11 bottom of the recommended Guidelines range. 12 assisted in the prosecution of her accomplice and boyfriend, 13 Edgardo Sensi, her crime was particularly abhorrent. 14 a sentence of eight years was within the court's substantive 15 discretion. 16 108, 123 (2d Cir. 2009) (explaining that a sentence must be 17 "shockingly high, shockingly low, or otherwise unsupportable 18 as a matter of law" in order to be substantively 19 unreasonable). 20 without the influence of procedural error. Though Culver Thus, See, e.g., United States v. Rigas, 583 F.3d Still, that discretion should be exercised 21 22 5 1 2 3 4 5 6 7 8 Finding no merit in the remaining arguments, the judgment is VACATED AND REMANDED for resentencing. FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK 6