United States v. Lifshitz
2013 U.S. App. LEXIS 8132
| 2d Cir. | 2013Background
- Lifshitz pleaded guilty to receiving child pornography; later pleaded guilty to distributing child pornography and was sentenced to probation then prison for federal offenses.
- He began supervised release with conditions including sex-offender treatment and computer monitoring.
- He violated multiple supervised-release conditions (missed treatment, improper online activity, unmonitored internet use, contacting minors).
- A violation petition led to four Grade C violations; the probation office recommended 24 months’ imprisonment and 12 months’ supervised release.
- At sentencing, the district court stated it considered rehabilitation but primarily emphasized respect for the law and public protection; sentenced Lifshitz to 24 months’ imprisonment and 12 months’ supervised release.
- Lifshitz timely appealed; the Second Circuit reviewed for abuse of discretion under Gall, addressing Tapia’s rehabilitation limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tapia bars sentencing to promote rehabilitation on revocation | Lifshitz argues sentencing based on rehab was impermissible | Lifshitz’s rehab consideration was not the basis for length; permissible factors governed | No procedural error; sentence affirmed as within permissible factors |
| Whether Tapia-based error was plain error on appeal | Error was plain as of time of appeal | Record shows permissible considerations; no reversible error | Tapia applies but no plain error; affirmed on scope of factors |
| Whether the sentence was substantively within range given repeated noncompliance | Above-Guidelines sentence necessary to protect the public | Past noncompliance justifies length; within range | Sentence within range; no abuse of discretion |
Key Cases Cited
- Tapia v. United States, 131 S. Ct. 2382 (2011) (precludes sentencing to promote rehabilitation; cannot base imprisonment length on rehab)
- Gilliard, 671 F.3d 255 (2d Cir. 2012) (rehabilitation discussions permissible if not the basis for length)
- Cavera, 550 F.3d 180 (2d Cir. 2008) (abuse-of-discretion review; range of permissible decisions)
- Henderson v. United States, 133 S. Ct. 1121 (2013) (plain-error standard and consideration of errors on appeal)
- Garza, 706 F.3d 655 (5th Cir. 2013) (Tapia applies to revocation proceedings as well)