NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 16-3880 _____________
UNITED STATES OF AMERICA
v.
MICHAEL CERRUTI, Appellant __________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 5-14-cr-00438-001) District Judge: Honorable Jeffrey L. Schmehl __________________________
Submitted Under Third Circuit L.A.R. 34.1(a) September 14, 2017
Before: VANASKIE, RENDELL, and FUENTES, Circuit Judges
(Filed December 19, 2017) _____________
OPINION* _____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. VANASKIE, Circuit Judge.
Michael Cerruti pleaded guilty to two counts of child pornography-related charges
and was sentenced to a below-Guidelines prison term of 84 months. He now challenges
the substantive reasonableness of his sentence, arguing that the District Court improperly
relied upon rehabilitation concerns in making its decision. For the reasons that follow,
we will affirm the judgment of sentence.
I.
In April 2014, a grand jury sitting in the Eastern District of Pennsylvania returned
an indictment charging Cerruti with one count of transportation of child pornography, in
violation of 18 U.S.C. § 2252(a)(1), and one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). On January 14, 2016, Cerruti entered an open
plea of guilty to the charged offenses. The Presentence Report (“PSR”) prepared by the
United States Probation Office determined that Cerruti’s total offense level was 34 and
that his criminal history category was VI. Taken together, these figures yielded a
Sentencing Guidelines range of 210-262 months’ imprisonment.
Prior to sentencing, Cerruti filed a memorandum requesting that the District Court
grant a downward variance and impose the mandatory minimum sentence of five years’
imprisonment. In support of his request, Cerruti described his troublesome upbringing
and difficulties in school. Cerruti additionally attached to his memorandum two expert
reports––one prepared by a forensic psychiatrist and the other by a psychologist––
chronicling his severe mental health issues, lengthy substance abuse history, and
cognitive impairments. Citing these reports, Cerruti argued that the five-year mandatory
2 minimum, coupled with a ten-year term of supervised release, would be the most
appropriate sentence.
The District Court convened a sentencing hearing on October 11, 2016. Neither
party objected to the PSR’s calculation. The government, for its part, proposed a
sentencing range of 151-188 months’ imprisonment, arguing that––although the proposal
was below the recommended Guidelines range––it was nevertheless a “significant
sentence,” one that was necessary “to make sure” that Cerruti “[will be] able to abide by
societies [sic] rules and not further harm children” upon his release. (App. 40.) Cerruti,
in turn, reiterated his mental health problems and “social judgment issues,” again
requesting that the District Court impose the five-year mandatory minimum sentence
with “long-term counsel and supervision” upon his release. Id. at 47, 49.
After hearing from both sides and taking the parties’ recommendations into
account, the District Court commenced an analysis of the “factors set forth in 18[] U.S.C.
[§] 3553(a),” including “the nature and circumstances of the offense committed and the
history and characteristics of the defendant.” Id. at 63. Observing that “child
pornography . . . [is] one of the most serious crimes that a judge hears,” the District Court
sought to impose a sentence that reflected the dual aims of “protect[ing] the public from
further crimes of the defendant” while “provid[ing] the defendant with the needed
educational or vocational training, medical care, [and] . . . other correctional treatment in
the most effective manner.” Id. at 63–64. After reexamining the expert reports, the
District Court declared that Cerruti “need[ed] a lengthy time of incarceration. He hasn’t
even been in the federal system yet to get started, to get acclimated, and to help a true
3 rehabilitation and a true reentry to society.” Id. at 65.1 The Court then granted a
significant downward variance from the 210-262-month range under the Guidelines,
imposing a sentence of 84 months’ imprisonment with a ten-year term of supervised
release.
Cerruti did not object to the District Court’s sentencing judgment. This timely
appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because Cerruti did
not lodge an objection in the District Court, we review the sentencing decisions for plain
error. United States v. Flores–Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc) (citing
Fed. R. Crim. P. 52(b)). “An error is plain if it is ‘clear’ or ‘obvious,’ ‘affects substantial
rights,’ and ‘affects the fairness, integrity or public reputation of judicial proceedings.’”
Id. at 259 (quoting United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006)).
III.
On appeal, Cerruti argues that the District Court’s sentencing judgment violates
Tapia v. United States, where the Supreme Court held that “a court may not impose or
lengthen a prison sentence to enable an offender to complete a treatment program or
otherwise to promote rehabilitation.” 564 U.S. 319, 335 (2011). Cerruti contends that
the District Court contravened Tapia by expressing concern over Cerruti’s need for
1 At the time of the sentencing hearing, Cerruti had been incarcerated in the Lehigh County Jail for 27 months due to parole violations. 4 rehabilitation prior to handing down the 84-month prison term. Our independent review
of the record, however, leads us to conclude that no such error occurred.
In Tapia, the petitioner was sentenced to a within-Guidelines term of 51 months’
imprisonment. Id. at 321. In making its sentencing judgment, the district court “referred
several times to Tapia’s need for drug treatment” and explicitly “indicated that Tapia
should serve a prison term long enough to qualify for and complete” the Bureau of
Prison’s Residential 500 Hour Drug Abuse Program. Id. at 321–22. On certiorari
review, the Supreme Court conducted an extensive analysis of the § 3582(a) sentencing
factors and concluded that they “preclude[] sentencing courts from imposing or
lengthening a prison term to promote an offender’s rehabilitation.” Id. at 332. The
Court, however, emphasized that a district court “commits no error by discussing the
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 16-3880 _____________
UNITED STATES OF AMERICA
v.
MICHAEL CERRUTI, Appellant __________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 5-14-cr-00438-001) District Judge: Honorable Jeffrey L. Schmehl __________________________
Submitted Under Third Circuit L.A.R. 34.1(a) September 14, 2017
Before: VANASKIE, RENDELL, and FUENTES, Circuit Judges
(Filed December 19, 2017) _____________
OPINION* _____________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. VANASKIE, Circuit Judge.
Michael Cerruti pleaded guilty to two counts of child pornography-related charges
and was sentenced to a below-Guidelines prison term of 84 months. He now challenges
the substantive reasonableness of his sentence, arguing that the District Court improperly
relied upon rehabilitation concerns in making its decision. For the reasons that follow,
we will affirm the judgment of sentence.
I.
In April 2014, a grand jury sitting in the Eastern District of Pennsylvania returned
an indictment charging Cerruti with one count of transportation of child pornography, in
violation of 18 U.S.C. § 2252(a)(1), and one count of possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). On January 14, 2016, Cerruti entered an open
plea of guilty to the charged offenses. The Presentence Report (“PSR”) prepared by the
United States Probation Office determined that Cerruti’s total offense level was 34 and
that his criminal history category was VI. Taken together, these figures yielded a
Sentencing Guidelines range of 210-262 months’ imprisonment.
Prior to sentencing, Cerruti filed a memorandum requesting that the District Court
grant a downward variance and impose the mandatory minimum sentence of five years’
imprisonment. In support of his request, Cerruti described his troublesome upbringing
and difficulties in school. Cerruti additionally attached to his memorandum two expert
reports––one prepared by a forensic psychiatrist and the other by a psychologist––
chronicling his severe mental health issues, lengthy substance abuse history, and
cognitive impairments. Citing these reports, Cerruti argued that the five-year mandatory
2 minimum, coupled with a ten-year term of supervised release, would be the most
appropriate sentence.
The District Court convened a sentencing hearing on October 11, 2016. Neither
party objected to the PSR’s calculation. The government, for its part, proposed a
sentencing range of 151-188 months’ imprisonment, arguing that––although the proposal
was below the recommended Guidelines range––it was nevertheless a “significant
sentence,” one that was necessary “to make sure” that Cerruti “[will be] able to abide by
societies [sic] rules and not further harm children” upon his release. (App. 40.) Cerruti,
in turn, reiterated his mental health problems and “social judgment issues,” again
requesting that the District Court impose the five-year mandatory minimum sentence
with “long-term counsel and supervision” upon his release. Id. at 47, 49.
After hearing from both sides and taking the parties’ recommendations into
account, the District Court commenced an analysis of the “factors set forth in 18[] U.S.C.
[§] 3553(a),” including “the nature and circumstances of the offense committed and the
history and characteristics of the defendant.” Id. at 63. Observing that “child
pornography . . . [is] one of the most serious crimes that a judge hears,” the District Court
sought to impose a sentence that reflected the dual aims of “protect[ing] the public from
further crimes of the defendant” while “provid[ing] the defendant with the needed
educational or vocational training, medical care, [and] . . . other correctional treatment in
the most effective manner.” Id. at 63–64. After reexamining the expert reports, the
District Court declared that Cerruti “need[ed] a lengthy time of incarceration. He hasn’t
even been in the federal system yet to get started, to get acclimated, and to help a true
3 rehabilitation and a true reentry to society.” Id. at 65.1 The Court then granted a
significant downward variance from the 210-262-month range under the Guidelines,
imposing a sentence of 84 months’ imprisonment with a ten-year term of supervised
release.
Cerruti did not object to the District Court’s sentencing judgment. This timely
appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because Cerruti did
not lodge an objection in the District Court, we review the sentencing decisions for plain
error. United States v. Flores–Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc) (citing
Fed. R. Crim. P. 52(b)). “An error is plain if it is ‘clear’ or ‘obvious,’ ‘affects substantial
rights,’ and ‘affects the fairness, integrity or public reputation of judicial proceedings.’”
Id. at 259 (quoting United States v. Dragon, 471 F.3d 501, 505 (3d Cir.2006)).
III.
On appeal, Cerruti argues that the District Court’s sentencing judgment violates
Tapia v. United States, where the Supreme Court held that “a court may not impose or
lengthen a prison sentence to enable an offender to complete a treatment program or
otherwise to promote rehabilitation.” 564 U.S. 319, 335 (2011). Cerruti contends that
the District Court contravened Tapia by expressing concern over Cerruti’s need for
1 At the time of the sentencing hearing, Cerruti had been incarcerated in the Lehigh County Jail for 27 months due to parole violations. 4 rehabilitation prior to handing down the 84-month prison term. Our independent review
of the record, however, leads us to conclude that no such error occurred.
In Tapia, the petitioner was sentenced to a within-Guidelines term of 51 months’
imprisonment. Id. at 321. In making its sentencing judgment, the district court “referred
several times to Tapia’s need for drug treatment” and explicitly “indicated that Tapia
should serve a prison term long enough to qualify for and complete” the Bureau of
Prison’s Residential 500 Hour Drug Abuse Program. Id. at 321–22. On certiorari
review, the Supreme Court conducted an extensive analysis of the § 3582(a) sentencing
factors and concluded that they “preclude[] sentencing courts from imposing or
lengthening a prison term to promote an offender’s rehabilitation.” Id. at 332. The
Court, however, emphasized that a district court “commits no error by discussing the
opportunities for rehabilitation within the prison or the benefits of specific treatment or
training programs.” Id. at 334. Thus, § 3582(a) is violated only where the sentencing
court specifically calculates the length of a sentence to ensure that an offender receives
certain rehabilitative care or is imprisoned for a period of time sufficient to complete a
rehabilitative program. Simply mentioning the potential benefits of participating in such
a program while imprisoned does not amount to a violation of Tapia. United States v.
Zabielski, 711 F.3d 381, 391 (3d Cir. 2013).
In Cerruti’s case, he takes issue with the following statements made by the District
Court at sentencing:
I do think the defendant needs a lengthy time of incarceration. He hasn’t even been in the federal system yet to get started, to
5 get acclimated and to help a true rehabilitation and a true reentry to society.
(App. 65.) These statements, however, do not indicate that the District Court sentenced
Cerruti for the sole purpose of receiving treatment. To the contrary, they are direct
responses to concerns raised by Cerruti in the course of the sentencing hearing regarding
his mental health, intellectual impairments, and history of substance abuse. Indeed,
Cerruti explicitly advised the District Court that “he should undergo counsel for drug
abuse while he is at the Bureau of Prisons” because “he [hadn’t] really had it since [he’d]
been in the Lehigh County Jail . . . .” Id. at 49. The District Court, after considering
Cerruti’s past conduct and the relevant § 3553(a) factors, expressed its agreement with
Cerruti’s sentiments, explaining that a transfer from county prison to federal prison
would serve Cerruti well because it would allow him to “get acclimated” and receive the
“true rehabilitation” that he needed. Id. at 65.
Thus, there is no basis to conclude that the District Court imposed or lengthened
Cerruti’s term of imprisonment merely to promote his rehabilitation. Instead, the District
Court did precisely as Tapia permits by “trying to get” Cerruti “into an effective drug
treatment program.” Tapia, 564 U.S. at 334. “This type of reference to rehabilitation is,
under Tapia, both permitted an encouraged.” Zabielski, 711 F.3d at 392 (citing Tapia,
564 U.S. at 334).
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.