United States v. Malloy

254 F. App'x 911
CourtCourt of Appeals for the Third Circuit
DecidedOctober 24, 2007
DocketNo. 06-2772
StatusPublished

This text of 254 F. App'x 911 (United States v. Malloy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Malloy, 254 F. App'x 911 (3d Cir. 2007).

Opinion

OPINION

ALDISERT, Circuit Judge.

This appeal by William Malloy requires us to decide whether the United States District Court for the Middle District of Pennsylvania adequately articulated its consideration of the factors set forth in 18 U.S.C. § 3553(a) when it sentenced Malloy to 27 months of imprisonment. On appeal, Malloy contends that the District Court failed to meaningfully consider the § 3553(a) factors, letters submitted on his behalf and an independent psychiatric report. We will affirm.

I.

The parties are familiar with the facts and proceedings before the District Court, so we will revisit them only briefly. In 2002, the FBI and local law enforcement officials in Dallas, Texas began an investigation into the distribution of child pornography over the Internet. During the course of the investigation, officials obtained e-mail addresses and credit card records used to gain access to websites distributing child pornography, and some of those records led authorities to a man named Bill Malloy at an address in Hones-dale, Pennsylvania. On October 15, 2003, FBI agents traveled to that address and met with Malloy. At the meeting, Malloy admitted to having received child pornography via the Internet and provided authorities with approximately 70 sexually explicit images of prepubescent minors that he had printed from the Internet. Malloy also provided the agents with a written statement of his involvement with child pornography.

On September 21, 2004, Malloy was arrested by the FBI and charged with receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). On July 21, 2005, Malloy pleaded guilty to receiving child pornography. The presentence report stated that the receiving child pornography charge carried a mandatory minimum sentence of five years of imprisonment. Because this mandatory minimum was not contemplated by either of the parties, Malloy was given the opportunity to withdraw his plea and enter a plea to an information charging him with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5), which carried no mandatory minimum sentence.

Thereafter, on January 13, 2006, Malloy withdrew his prior plea, waived his right to an indictment and entered a plea of guilty to the information. At the May 11, 2006 sentencing hearing, the District Court sentenced Malloy to the minimum sentence provided by the advisory Sentencing Guidelines, 27 months of imprisonment.

II.

Generally, “a court of appeals gives deference to a district court’s sentencing determinations and thus reviews sentences on an abuse of discretion basis.” United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.2006). When a defendant fails to raise an objection to the sentence before the district court, however, our review of the sentence is for plain error. Id. (“Nevertheless, insofar as [the defendant] is advancing contentions that he did not preserve in the district court, our review is [913]*913confined by the exacting plain error standards.”). Before us, Malloy complains that the District Court failed to perform a meaningful consideration of the § 3558(a) factors, letters submitted on his behalf, and an independent psychiatric report when it sentenced him to 27 months of imprisonment. Because his argument made to this Court was not raised before the District Court, see sup. app. 27-30, we will review it for plain error.

To succeed under the plain error standard, Malloy bears the burden of showing that “(1) an error was committed; (2) the error was plain, that is, clear and obvious; and (3) the error affected the defendant’s substantial rights[,] ... [and] [i]n cases where the first three elements are satisfied, an appellate court may exercise its discretion to order such a correction only if the error[] seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Dixon, 308 F.3d 229, 234 (3d Cir.2002) (citations and quotations omitted). An error affects substantial rights if the error was prejudicial to the defendant and “affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

III.

Malloy contends that the District Court erred by failing to meaningfully consider the factors relevant to sentencing, as articulated in 18 U.S.C. § 3553(a),1 letters sub[914]*914mitted on his behalf by Mends and family, and an independent psychiatric report concluding that Malloy did not meet diagnostic requirements for pedophilia or antisocial personality disorder. This Court has previously considered a similar claim of failure to consider the appropriate § 3553(a) factors, and the legal precept applicable to Malloy’s claim is settled. In United States v. Cooper, 437 F.3d 324 (3d Cir.2006), we stated:

The record must demonstrate that the court gave meaningful consideration to the § 3553(a) factors. The court need not discuss every argument made by a litigant if an argument is clearly without merit. Nor must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.

Id. at 329 (internal citations omitted). Nothing in the teachings of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), or elsewhere requires a district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to explicitly record its consideration of each factor. Cooper, 437 F.3d at 329.

At sentencing, the District Court provided the following statement regarding its reasons for imposing a sentence of 27 months of imprisonment:

You see, it puts a cloud on everything you’ve done, and what baffles me is that you don’t seem to understand that. Sometimes you have to be concerned about perception, and when you have somebody who has been as active as you have been in the community with youth sports and particularly girls sports, then, to be accessing child pornography and then printing it out and retaining it involving pre-pubescent children, it’s a horrible, horrible, thing.
You received an award from the Chamber of Commerce. Is that the image of the person they would want to honor? Don’t you have an obligation, a duty to live up to the faith that people have shown in you, the parents who put their children in your care not to do something that would suggest a problem? I think you do, I think you have an absolute duty. Yes, you did great things for the children of the community, but working with children is also a privilege, and you can’t destroy that.

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Related

United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Dante Dixon
308 F.3d 229 (Third Circuit, 2002)
United States v. Lydia Cooper
437 F.3d 324 (Third Circuit, 2006)

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Bluebook (online)
254 F. App'x 911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-malloy-ca3-2007.