United States v. Cossey

Opinion

11-2549-cr United States v. Cossey

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 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 23rd day of April, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 AMALYA L. KEARSE, 10 PETER W. HALL 11 Circuit Judges. 12 13 - - - - - - - - - - - - - - - - - - - -X 14 United States, 15 Appellee, 16 17 -v.- 11-2549-cr 18 19 Gary Cossey, 20 Defendant-Appellant. 21 - - - - - - - - - - - - - - - - - - - -X 22 23 FOR DEFENDANT-APPELLANT: George E. Baird and Molly 24 Corbett, Assistant Federal 25 Public Defenders, for Lisa A. 26 Peebles, Acting Federal Public 27 Defender, Albany, NY. 28 29 FOR APPELLEE: Elizabeth S. Riker and Lisa M. 30 Fletcher, Assistant United 31 States Attorneys, for Richard S. 32 Hartunian, United States 33 Attorney for the Northern 34 District of New York, Syracuse, 35 NY.

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2 Appeal from a judgment of the United States District 3 Court for the Northern District of New York (Mordue, then- 4 Chief Judge). 5 6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 7 AND DECREED that the judgment of the district court is 8 AFFIRMED. 9 10 Defendant-Appellant Gary Cossey, who pleaded guilty to 11 possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B), 12 appeals the 78-month sentence imposed on re-sentencing after 13 remand, see United States v. Cossey, 632 F.3d 82 (2d Cir. 14 2011) (per curiam). We assume the parties’ familiarity with 15 the underlying factual allegations, the procedural history 16 of the case, and the issues on appeal. 17 We generally review sentences for reasonableness under 18 the “deferential abuse-of-discretion standard.” Gall v. 19 United States, 552 U.S. 38, 41 (2007); accord United States 20 v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). 21 Reasonableness review has both a substantive and a 22 procedural dimension. United States v. Whitley, 503 F.3d 23 74, 76 (2d Cir. 2007).

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1 [1] In reviewing for procedural reasonableness, this Court 2 considers such factors as whether the district court (1) 3 failed to calculate (or improperly calculated) the 4 Guidelines range, (2) treated the Guidelines as mandatory, 5 (3) failed to consider the Section 3553(a) factors, (4) 6 selected a sentence based on clearly erroneous factual 7 findings, or (5) failed to adequately explain the sentence 8 (including an explanation for any deviation from the 9 Guidelines range). Gall, 552 U.S. at 51. 10 Cossey argues that the district court failed to 11 consider several 18 U.S.C. § 3553(a) factors, including his 12 personal history and his efforts at rehabilitation. The 13 premise of that argument is that the district court must 14 have ignored particular factors or characteristics unless 15 they were mentioned during sentencing. However, “we never 16 have required a District Court to make specific responses to 17 points argued by counsel in connection with sentencing.” 18 United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010). 19 Nor do we “insist that the district court address every 20 argument the defendant has made or discuss every § 3553(a) 21 factor individually.” United States v. Villafuerte, 502 22 F.3d 204, 210 (2d Cir. 2007). In any event, the district 23 court stated on the record that it had considered (inter 24 alia) the submissions by counsel, which included the

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1 information Cossey claims was not considered. The district 2 court also heard statements from Cossey and his family, 3 which covered these same issues. The district court’s 4 consideration of mitigating circumstances is further evident 5 from its imposition of the minimum within-Guidelines 6 sentence. 7 Cossey criticizes the district court for not imposing a 8 below-Guidelines sentence based on the report of his 9 evaluation by Dr. Jacqueline Bashkoff. A district court is 10 not required “to accept a psychologist’s conclusions at face 11 value” where, for example, a “psychologist’s report cannot 12 be squared with the court’s own judgment of the defendant’s 13 culpability and the danger he poses to society.” See United 14 States v. DeSilva, 613 F.3d 352, 356-57 (2d Cir. 2010) (per 15 curiam). Dr. Bashkoff’s conclusions were contradicted by 16 Cossey’s initial statement and admissions to law-enforcement 17 officers in 2006. 18 Cossey argues that the district court may have relied 19 on information in the Pre-Sentence Report that was the 20 subject of factual disputes that the district court failed 21 to resolve. See Fed. R. Crim. P. 32(i)(3)(B). But the 22 district court, in providing the reasons for imposing 23 Cossey’s sentence, did not mention, or give any other 24 indication that he relied upon, any of those disputed facts.

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1 Instead, it relied on the evidence uncovered from the 2 investigation of Cossey and Cossey’s admissions to the 3 police. 4 Finally, Cossey contends that his sentence is disparate 5 from the sentences imposed on others, similarly situated. 6 See 18 U.S.C. § 3553(a)(6). Cossey has not shown that his 7 sentence is disparate from other “defendants with similar 8 records who have been found guilty of the similar conduct.” 9 Id. Cossey’s long history of viewing and possessing these 10 materials coupled with his inability to permanently stop 11 (despite his best efforts) support his sentence. See 12 Cossey, 632 F.3d at 88-89 (vacating previous sentence on 13 other grounds but observing that “[t]he record also contains 14 . . . evidence that would support the district court’s 15 decision that Cossey would re-offend based on an appropriate 16 consideration that he did in fact re-offend at least once”). 17 [2] Cossey also argues that his sentence is substantively 18 unreasonable. In assessing the substantive reasonableness 19 of a sentence, this Court “take[s] into account the totality 20 of the circumstances, giving due deference to the sentencing 21 judge’s exercise of discretion, and bearing in mind the 22 institutional advantages of district courts.” Cavera, 550 23 F.3d at 190. Given the broad range of relevant factors, 24 “the duty of a reviewing court is not to identify the

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1 ‘right’ sentence but, giving due deference to the district 2 court’s exercise of judgment, to determine whether the 3 sentence imposed falls within the broad range that can be 4 considered reasonable under the totality of the 5 circumstances.” United States v. Jones, 531 F.3d 163, 174 6 (2d Cir. 2008). Thus, review for substantive 7 unreasonableness “provide[s] a backstop for those few cases 8 that, although procedurally correct, would nonetheless 9 damage the administration of justice because the sentence 10 imposed was shockingly high, shockingly low, or otherwise 11 unsupportable as a matter of law.” United States v. Rigas, 12 583 F.3d 108, 123 (2d Cir. 2009). 13 The district court imposed the minimum within- 14 Guidelines sentence. We do not assume that a Guidelines 15 sentence is reasonable; but “in the overwhelming majority of 16 cases, a Guidelines sentence will fall comfortably within 17 the broad range of sentences that would be reasonable in the 18 particular circumstances.” United States v. Fernandez, 443 19 F.3d 19, 27 (2d Cir. 2006). Here, in light of the “fact 20 [that Cossey] re-offend[ed] at least once,” Cossey, 632 F.3d 21 at 89, it cannot be said that the sentence fell outside the 22 range of reasonable sentences or was otherwise unsupportable 23 as a matter of law.

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1 Cossey argues nevertheless that his sentence runs afoul 2 of United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (as 3 amended). In Dorvee, we held that the 240-month sentence of 4 a first-time offender who pleaded guilty to distribution of 5 child pornography was procedurally and substantively 6 unreasonable. Id. at 188. In so doing, we observed that 7 courts determining sentences for offenses involving child 8 pornography must be careful not to impose sentences that do 9 not conform with the Section 3553(a) factors. Id. at 184- 10 88. The instant case is easily distinguished. Whereas in 11 Dorvee the defendant was sentenced to 240 months, the 12 statutory maximum for his offense, here Cossey was sentenced 13 to 78 months, which, though 18 months above the statutory 14 minimum, was 42 months below the statutory maximum for his 15 offense. And, unlike the sentence imposed in Dorvee, which 16 was also subject to procedural error, the sentence imposed 17 in this case is procedurally sound, and, as explained above, 18 was reasonable under the totality of the circumstances. 19 We have considered all of Cossey’s additional arguments 20 and find them to be without merit. Accordingly, the 21 judgment of the district court is AFFIRMED.

22 FOR THE COURT: 23 Catherine O’Hagan Wolfe, Clerk