USA v. Desilva

• Decision Date: 28 July 2010
• Docket Number: Docket No. 09-2988-cr.
• Citation: 613 F.3d 352
• Parties: UNITED STATES of America, Appellant, v. Chad Edward DeSILVA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

613 F.3d 352

UNITED STATES of America, Appellant,

v.Chad Edward DeSILVA, Defendant-Appellee.

Docket No. 09-2988-cr.

United States Court of Appeals,Second Circuit.

Argued June 23, 2010.

Decided July 28, 2010.

Joseph J. Karaszewski, Assistant United States Attorney (Kathleen M. Mehltretter, United States Attorney, on the brief), Office of the United States Attorney for the Western District of New York, Buffalo, NY, for appellant.

Sean Dennis Hill, Buffalo, NY, for appellee.

Before WINTER, CABRANES, and WESLEY, Circuit Judges.

PER CURIAM:

We are called upon here to determine whether the United States District Court for the Western District of New York committed procedural error by engaging in clearly erroneous fact-finding at defendant's sentencing when it relied upon a psychologist's report-which was prepared for use at a pretrial bail hearing-to find that defendant, an admitted child molester, posed no danger to the community. We hold that the District Court did commit such procedural error and therefore remand for resentencing.

BACKGROUND

In September 2006, defendant-appellee Chad Edward DeSilva traded child pornography on the internet with a Task Force Agent of the Federal Bureau of Investigation. After obtaining a warrant, federal investigators searched DeSilva's Buffalo home and found a computer hard drive containing pictures of naked prepubescent boys engaging in sex acts. DeSilva admitted to the investigators that the pictures were his; he had obtained them, he said, on the internet.

DeSilva then came under the scrutiny of two local police departments. After an investigation, DeSilva admitted to local detectives that he had sexually abused a friend's son over a period of two years. DeSilva explained that he had often “babysat” the boy-who was, when the abuse began, approximately eleven years old-and in that position of trust, he had repeatedly exposed the boy to pornography and encouraged the boy to masturbate with him. Eventually, DeSilva admitted, the abuse escalated: he touched the boy's penis, manually stimulated him, and performed oral sex on him.

DeSilva was taken into custody by federal officials and later indicted on federal child pornography charges. DeSilva requested release on bail pending trial and, in support of that request, submitted a report of a psychologist he had hired, Dr. Brian S. Joseph (“Dr. Joseph”). In his report, Dr. Joseph acknowledged that DeSilva had “clearly demonstrated interest in Pedophilic sexual stimulation,” but he observed that DeSilva had “expressed what seemed to [him] to be genuine remorse at th[at] time.” J.A. 95. Dr. Joseph argued that DeSilva should be released to his parents pending trial. He reasoned as follows:

I feel that if [DeSilva] were to be released to his parents, he would not present a danger to the community. Not only because he states emphatically that he would resist such impulses to do so [ ( i.e., to engage in “Pedophilic sexual stimulation”) ], but he would have little opportunity to do [so] and would be closely monitored by his parents, as well. It is important to note that he did not molest anyone else, save the neighbor's son, i.e. he did not go into the community to select victims at random, or others in his family or broader sphere of acquaintances who might serve as targets.

In addition, the parents have assured me that the computers have been removed from the home and they have no Internet access. Again, his family is more than willing to be involved and provide careful supervision. Of course, while I only have his own pledges that he would refrain from any further illegal activity, he seemed earnest and forthright in that regard.

Again, I feel that he is well motivated and he, himself, is interested to enter counseling at the first opportunity. He seems to have developed clearer self-awareness that child pornography involves victimization and exploitation of children, and that his sexual gratification is obviously a secondary issue. Thus, again, I do not feel that he poses a danger to the community at large and at this point in time, a release to his parents' custody is a reasonable alternative to continued incarceration.

J.A. 95-96. As to a possible sentence for DeSilva, Dr. Joseph expressed only “hope[ ]” that “the Court would view” the information in his report “in a positive light as [the Court] consider[ed] sentencing alternatives.” Id. at 96. DeSilva was not granted pre-trial release. ¹

DeSilva eventually pleaded guilty under a plea agreement with the government to one count of distributing child pornography. See 18 U.S.C. § 2252(a)(2). The plea agreement provided that DeSilva's offense level under the United States Sentencing Guidelines (U.S.S.G.) would be 38. That calculation included a five-level enhancement based on DeSilva's ongoing sexual abuse of his friend's son. See U.S.S.G. § 2G2.2(b)(5) (“If the defendant engaged in a pattern of activity involving the sexual abuse ... of a minor, increase [the offense level] by 5 levels.”). Placing DeSilva within criminal history level I, the plea agreement concluded that his advisory sentence range would be 235 to 240 months' imprisonment. ²

At sentencing, DeSilva's counsel argued for a sentence “at, or slightly in excess of,” the statutory minimum, 60 months. See 18 U.S.C. § 2252(b)(1). He submitted several letters written in support of DeSilva, and he once again submitted the report of Dr. Joseph that had been prepared in support of the request for pre-trial release. The government argued for a sentence within the advisory Guidelines range, and written victim impact statements were submitted by DeSilva's minor victim, members of the victim's family, and a psychologist who had treated the victim. The victim stated poignantly: “I don't want what happened to me to ever happen to anyone else.”

The District Court first calculated the advisory Guidelines range as provided in the plea agreement: an offense level of 38 and a criminal history category of I, resulting in a range of 235 to 240 months' imprisonment. The Court then explained that it had decided to impose a below-Guidelines sentence. It listed several reasons for its decision to deviate from the Guidelines; one of those reasons was “Dr. Joseph's opinion that you [ ( i.e., DeSilva) ] are not a danger to the community.” See J.A. 168-69. The Court's written statement of reasons provided as follows (emphasis added):

The Court rendered a full decision from the bench. In sum and substance, the Court considered that although defendant's sentencing colloquy was more of an apology to his family and friends than

an acknowledgment of the harm he caused, his past abuse [ ( i.e., the abuse that DeSilva had suffered in the past) ], lack of prior criminal record, employment history, support from family and friends, and Dr. Joseph's opinion that the defendant is not a danger to the community supports the downward variance to a reasonable sentence.

The Court imposed a sentence of 132 months' imprisonment and a lifetime term of supervised release.

The government, acting with the approval of the Solicitor General of the United States, brought this timely appeal. ³

DISCUSSION

We review a criminal sentence for “ ‘unreasonableness,’ ” which means that we apply a “deferential abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 187, 189 (2d Cir.2008) ( en banc) (quoting United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Gall v. United States, 552 U.S. 38, 40, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “Our review has two components: procedural review and substantive review.” United States v. Dorvee, 604 F.3d 84, 90 (2d Cir.2010) (citing Cavera, 550 F.3d at 189). “ ‘Procedural error’ ” includes, among other things, “ ‘selecting a sentence based on clearly erroneous facts.’ ” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). To hold that a factual finding is “clearly erroneous,” we must be “ ‘left with the definite and firm conviction that a mistake has been committed.’ ” Cavera, 550 F.3d at 204 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

Federal criminal sentences are also subject to review for substantive reasonableness. Although substantive reasonableness is judged under the same deferential abuse-of-discretion standard, we have recently cautioned that “the ‘eccentric’ child pornography Guidelines, with their ‘highly unusual provenance,’ ‘can easily generate unreasonable results' if they are not ‘carefully applied.’ ” United States v. Tutty, 612 F.3d 128, 133 (2d Cir.2010) (quoting Dorvee, 604 F.3d at 95).

The government contends that the District Court committed clear error when it relied on Dr. Joseph's report to find that DeSilva was “not a danger to the community.” J.A. 168. The report, the government argues, dealt only with whether DeSilva would be a danger to the community if he were to be released to his parents pending trial. See Appellant's Br. 17. In the government's view, therefore, the District Court's reliance on Dr. Joseph's report “was clearly erroneous insofar as it entirely removed Dr. Joseph's opinion from the context in which it was rendered.” Id.

We agree.

Although a psychologist's report may provide mitigating evidence for the court's consideration during sentencing, the court must still conduct an independent evaluation of the defendant in light of the factors set forth in 18 U.S.C. § 3553(a). If the psychologist's report cannot be squared with the court's own judgment of the defendant's culpability and the danger he poses to society, the court is free, in its discretion, to decline to rely on the psychologist's findings, so long as the court explains its basis for doing so.

Nothing in Dorvee is to the contrary. There, as part of our consideration of a sentence's substantive reasonableness, we observed that the district court placed more emphasis on 18 U.S.C. 3553(a)(2)(C) ⁴ as an aggravating factor...