United States v. Daniel Sullivan ( 2011 )

  •                                                                  NOT PRECEDENTIAL
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                         No. 10-2800
                               UNITED STATES OF AMERICA
                                   DANIEL M. SULLIVAN,
                               On Appeal from the District Court
                            for the Middle District Of Pennsylvania
                                    (D.C. Cr. No. 08-CR-280)
                           District Judge: Hon. James F. McClure, Jr.
                         Submitted Under Third Circuit L.A.R. 34.1(a)
                                    On January 24, 2011
        Before: FUENTES and CHAGARES, Circuit Judges, and POLLAK,1 District Judge.
                               (Opinion Filed: February 17, 2011)
                                  OPINION OF THE COURT
     Honorable Louis H. Pollak, Judge of the United States District Court for the Eastern
    District of Pennsylvania, sitting by designation.
    FUENTES, Circuit Judge:
          Appellant Daniel M. Sullivan appeals from the District Court’s sentence of 180
    months’ imprisonment for distribution of child pornography under 18 U.S.C. §
    2252A(a)(2)(B). For the reasons that follow, we will affirm.
          Because we write for the parties, we discuss the facts only to the extent necessary
    for resolution of the issues raised on appeal. During a two week period in 2008, Sullivan
    participated in 15 internet chat sessions with FBI Agent James Kyle, who was posing as a
    13-year-old boy. During that time, Sullivan forwarded 137 images of child pornography
    to Agent Kyle. On July 17, 2008, Sullivan was arrested at his residence, search warrants
    were executed, and Sullivan’s computer was seized. An analysis of the computer’s hard
    drive revealed 292 images of child pornography, including the 137 images that were
    forwarded to Agent Kyle. Among those images that had not been forwarded to Agent
    Kyle were three images determined to contain sadistic or masochistic conduct involving
    children. Sullivan was charged with one count of Distributing Child Pornography under
    18 U.S.C. § 2252A(a)(2)(B) to which he pled guilty on December 29, 2009.
          The presentence report explains that Agent Kyle, while posing as a 13-year-old
    boy, was chatting with another individual named Valentine, himself a collector of child
    pornography. When the discussion reached the topic of the fictitious 13-year-old having
    sex with an adult, Valentine provided Agent Kyle with Sullivan’s internet address. The
    internet chat sessions between Agent Kyle and Sullivan then began.
           The presentence report also referenced two prior convictions Sullivan had received
    for inappropriate contact with minor children. In 1985, Sullivan received a one- to three-
    year sentence for sexual assault arising from police officers’ discovery of Sullivan in a
    car with two partially clothed children, ages five and six. The children told police that
    Sullivan had attempted to engage in sexual intercourse with the five-year-old girl while
    the six-year-old boy watched for approaching automobiles. In 2001, Sullivan was
    sentenced to a nine-month term of imprisonment and two years of probation for three
    counts of exposing himself to children under the age of 12. On November 17, 2003, it
    was determined that while on probation, Sullivan had stood in the doorway of his
    residence while naked and made noises at children so they would turn and look in his
    direction before raising his leg to expose his genitals. His probation was revoked and he
    was sentenced to seven months’ imprisonment.
           The presentence report indicated that Sullivan’s criminal history category was II
    and that his offense level was 35. This placed his guideline sentencing range at 188 to
    235 months. Sullivan objected to the presentence report on four grounds. First, he
    disputed its finding that he was subject to a 15-year statutory mandatory minimum
    sentence under 18 U.S.C. § 2252A(b)(1) due to his prior convictions. Sullivan also
    argued for a downward departure under U.S.S.G. § 5H1.4, due to a number of health
    issues. Further, Sullivan argued that because he was charged only with distribution rather
    than possession of child pornography, the presentence report erred in applying a 3-level
    enhancement under U.S.S.G. § 2G2.2(b)(7)(B) for the 292 images he possessed, as
    opposed to the 137 images he distributed. Sullivan also contended that the presentence
    report erred in applying a 4-level enhancement under U.S.S.G. § 2G2.2(b)(4) for the three
    images of sadistic or masochistic conduct, given that those images were never distributed
    to Agent Kelly.
          At sentencing, the District Court agreed with Sullivan that the 15-year mandatory
    minimum sentence did not apply. However, the Court rejected Sullivan’s arguments as
    to the enhancements under U.S.S.G. §§ 2G2.2(b)(4) & (b)(7)(B), concluding that his
    possession of the full 292 images and 3 images of sadistic or masochistic conduct
    constituted relevant conduct under U.S.S.G. § 1B1.3. Finally, although the District Court
    declined to depart under U.S.S.G. § 5H1.4, it expressly factored-in Sullivan’s poor health
    in imposing a non-guideline sentence of 180 months under 18 U.S.C. § 3553(a), which
    was 8 months below the advisory guidelines’ sentencing range.
          On appeal, Sullivan challenges the District Court’s determination that his
    possession of the full 292 images and 3 images of sadistic or masochistic conduct were
    relevant conduct for purposes of sentencing. He also challenges the District Court’s
    refusal to grant a departure for health reasons under U.S.S.G. § 5H1.4. Finally, Sullivan
    contends that the sentence of 180 months was substantively unreasonable.
          The District Court had subject matter jurisdiction over this criminal matter under
    18 U.S.C. § 3231. This Court exercises jurisdiction over Sullivan’s appeal under 18
    U.S.C. § 3742 and 28 U.S.C. § 1291.
           Our review of whether a district court abused its discretion in imposing a sentence
    upon a criminal defendant is twofold. We first consider whether the sentencing court
    committed any procedural errors “such as failing to calculate (or improperly calculating)
    the Guidelines range, treating the Guidelines as mandatory, failing to consider the §
    3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
    adequately explain the chosen sentence-including an explanation for any deviation from
    the Guidelines range.” United States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009) (en
    banc) (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)). If the district court
    committed no procedural error, we consider the sentence’s substantive reasonableness. A
    sentence is substantively unreasonable only if “no reasonable sentencing court would
    have imposed the same sentence on that particular defendant for the reasons the district
    court provided.” Id. at 568.
           Sullivan argues that because he pled guilty to only distributing child pornography,
    rather than possessing it, his “relevant conduct” for purposes of § 1B1.3 of the Guidelines
    includes only those images he distributed to Agent Kyle. “Relevant conduct” is defined
    by the Guidelines as “all acts and omissions committed . . . that occurred during the
    commission of the offense of conviction, [or] in preparation for that offense . . .” or “that
    were part of the same course of conduct or common scheme or plan as the offense of
    conviction.” §1B1.3(a). Whether conduct is part of the “same course of conduct”
    depends on “whether offenses are sufficiently connected or related to each other” as
    determined by such factors as the “degree of similarity of the offenses, the regularity
    (repetitions) of the offenses, and the time interval between the offenses.” § 1B1.3 cmt. n.
    9(B). “Importantly, the test is a sliding scale, so even if one factor is absent, relevant
    conduct may be found where at least one other factor is strong.” United States v. Kulick,
    --- F.3d ---, 
    2010 WL 5365491
    , at *5, (3d Cir. 2010) (quoting United States v. Wilson,
    106 F.3d 1140
    , 1143 (3d Cir. 1997)).
           As to the temporal factor, “[a]s a general principle, various courts have found that
    a period of separation of over one year negated or weighed against a finding of temporal
    proximity.” Id. at *6 (internal quotations omitted). Here, it is possible, albeit unlikely,
    that Sullivan obtained some of the 155 images that he did not distribute during the very
    brief period after his internet chats with Agent Kyle but before his arrest. However, any
    images that were obtained during that period were clearly possessed well within one year
    of Sullivan’s crime of distribution, thus easily satisfying the temporal factor.
           In evaluating the similarity factor, “a court primarily should consider the degree of
    similarity between the offenses, but can also look to the commonality of the victims, the
    commonality of offenders, the commonality of purpose, and the similarity of modus
    operandi.” Id. Here, Sullivan’s possession of child pornography was quite similar to his
    distribution of it. The former entailed the possession of 292 images, including the 3
    images with sadistic or masochistic conduct, and the latter the further step of distributing
    137 of those same 292 images on Sullivan’s hard drive. There was a single common
    offender and a similar modus operandi in Sullivan’s use of his computer to obtain,
    possess, and then distribute the images. Further, the only reasonable inference to draw
    was that there was a commonality of purpose in Sullivan’s prurient interest in both
    possessing and distributing to someone he believed to be a 13-year-old boy, those same
    images. The similarity factor is also established.
           As to the regularity factor, “which considers the number of repetitions of the
    offenses,” id. at *8, Sullivan obviously engaged in repeated instances of possessing and
    distributing the images, further indicating a common course of conduct in his dealings
    with child pornography. While the presence of regularity is not as strong for Sullivan’s
    possession of sadistic or masochistic images, even three instances of possession
    constitutes some amount of repetition.
           Accordingly, because all three factors have been established, the District Court did
    not commit procedural error in concluding that the full 292 images were relevant conduct
    under § 1B1.3. Further, while there was not as much repetition with regard to the sadistic
    or masochistic images, given the strength of the other two factors, we conclude that those
    images are relevant to his charged offense as well. See Kulick, --- F.3d ---, 
    2010 WL 5365491
     at *5 (“Importantly, the test is a sliding scale, so even if one factor is absent,
    relevant conduct may be found where at least one other factor is strong.”).
           Sullivan next argues that the District Court erred when it denied him a downward
    departure for his extraordinary physical impairment under U.S.S.G. § 5H1.4. Sullivan
    suffers from chronic obstructive pulmonary disease, emphysema, sleep apnea, and
    blindness in his right eye. The District Court expressly and carefully considered
    Sullivan’s health, concluding that it was not so extraordinary as to warrant a downward
    departure, but finding it a sufficiently salient factor so as to vary from the Guidelines
    range by eight months under 18 U.S.C. § 3553(a). The District Court’s careful analysis
    of Sullivan’s health problems and their relevance to his sentence was neither procedural
    nor substantive error.
           Finally, Sullivan argues that the 180-month sentence imposed by the District Court
    was unreasonable under 18 U.S.C. § 3553(a). Here, after acknowledging all of the
    relevant factors for consideration, the District Court stated:
                  The Court has also considered the history and characteristics of the
           defendant . . . [and] is necessarily aware of the circumstances of the
           offense, albeit 27 years ago, in New Hampshire, and of the subsequent ones
           in Maine, all of which reflect a continuing criminal conduct of a related
           nature by the defendant for a long period of time.
                  There’s nothing in the history or characteristics, really, of the
           defendant that are favorable to him with respect to the sentence. They
           militate toward a more lengthy sentence.
    (App. 52a.)
           While it is true that Sullivan was not involved with the actual production of child
    pornography, we note that he has a 1985 conviction for sexually assaulting two children
    and in 2001 and 2003 he was found to have exposed himself to children on multiple
    occasions. The presentence report also indicates that Agent Kelly was given Sullivan’s
    internet address because he was someone who would be interested in sexual contact with
    a 13-year-old.
           Accordingly, the District Court was not unreasonable in concluding from
    Sullivan’s “continuing criminal conduct of a related nature,” that a sentence within or
    near the guideline range was appropriate. Sullivan’s potential for actual improper contact
    with children also easily distinguishes his case from the decision in United States v.
    616 F.3d 174
     (2d Cir. 2010), where the Second Circuit vacated a 240-month
    sentence for distribution of child pornography on the grounds of substantive
    unreasonableness. In Dorvee, the Court highlighted the fact that there was no evidence
    that the defendant had ever had or would likely have inappropriate contact with a minor.
    Id. at 183-84. In contrast, it is clear that Sullivan has previously harmed children and that
    it is possible he might do so again in the future.
           For the foregoing reasons, we will affirm the District Court’s judgment.