USA v. Dorvee, Docket No. 09-0648-cr.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: B.D. PARKER, Jr., Circuit Judge:
• Citation: 616 F.3d 174
• Parties: UNITED STATES of America, Appellee, v. Justin K. DORVEE, Defendant-Appellant.
• Docket Number: Docket No. 09-0648-cr.
• Decision Date: 11 May 2010

616 F.3d 174

UNITED STATES of America, Appellee,
v.
Justin K. DORVEE, Defendant-Appellant.

Docket No. 09-0648-cr.

United States Court of Appeals,Second Circuit.

Argued: Feb. 24, 2010.
Decided: May 11, 2010.
Amended: Aug. 4, 2010.

616 F.3d 175

Paul J. Angioletti, Staten Island, NY, for Defendant-Appellant Justin K. Dorvee.

Paul D. Silver, Assistant United States Attorney, for Richard T. Hartunian, United States Attorney, Northern District of New York (Thomas Spina, Jr., Paul Ryan Conan, and Brenda K. Sannes, Assistant United States Attorneys, on the brief), Albany, NY, for Appellee United States of America.

Before: CABRANES and B.D. PARKER, Circuit Judges, and UNDERHILL, District Judge. ^*

616 F.3d 176

AMENDED OPINION

B.D. PARKER, Jr., Circuit Judge:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court never properly calculated Dorvee's Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.

I. BACKGROUND

In his plea agreement, Dorvee admitted the following facts. On or about April 14, 2007, he began conversing online with someone he believed was a 14 year-old male named “Matt,” but who in fact was an undercover officer for the Maryland Heights, Missouri Police Department. During this conversation, Dorvee discussed, among other things, his fetish for young boys' feet, and the fact that he had a “crush on males that are too young for him.” Dorvee also sent Matt a number of computer images depicting boys between the ages of 11 and 15, which were not sexually explicit. App. 153.

Between October and June 2007, Dorvee conversed online with someone he believed was a 14 year-old male named “Seth” but who, again, was an undercover officer, this time with the Warren County, New York Sheriff's Office. The two engaged in sexually explicit conversations and Dorvee also sent him videos and images via the internet, including videos of minors engaging in sexually explicit conduct, and of Dorvee masturbating. During their conversations, Dorvee indicated that he would like to meet, to photograph, and to engage in sexual conduct with Seth. On October 19, 2007, Dorvee arranged to meet Seth, and was arrested when he arrived for the meeting. At the time of his arrest, Dorvee had a camera in his backpack that he said he intended to use to photograph Seth's feet and penis. App. 153-54.

A search warrant executed at Dorvee's residence yielded computer disks and a computer containing several thousand still images and approximately 100 to 125 computer videos depicting minors engaged in sexually explicit conduct (as defined by 18 U.S.C. § 2256(2)). Some of the images depicted prepubescent minors, and others depicted sadomasochistic conduct. Dorvee traded these videos and images on the internet with approximately 20 other individuals. The Presentence Investigation Report (PSR), prepared for the district court by the probation office, indicated that he admitted to taking approximately 300 non-explicit photographs of neighborhood children in public in an attempt to capture images of their feet. PSR ¶ 27.

Dorvee was subsequently indicted and agreed to plead guilty. At the time of his plea to the federal charges, Dorvee had already pled guilty to two state charges based on the same conduct: Attempted Use of a Child in a Sexual Performance (N.Y.P.L. §§ 110, 263.05), and Possession of a Sexual Performance by a Child (N.Y.P.L. § 263.16). Dorvee was sentenced to 7 to 21 years of incarceration by the state court. PSR ¶ 44.

The PSR initially calculated a Guidelines range of 262 to 327 months, based on a total offense level of 39 and a criminal history category of I. Importantly, however, the PSR noted that because the statutory

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maximum for the offense of conviction is twenty years of incarceration, “the Guideline range is 240 months.” PSR ¶ 63. In reaching its preliminary calculation of 262 to 327 months, the PSR stated that the base offense level was 22, and applied the following sentencing enhancements: (1) a two-level increase pursuant to U.S.S.G. § 2G2.2(b)(2) because “the material involved a prepubescent minor or a minor who had not attained the age of 12 years”; (2) a seven-level increase pursuant to § 2G2.2(b)(3)(E) because the offense involved “[d]istribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct”; (3) a four-level increase pursuant to § 2G2.2(b)(4) because “the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence”; (4) a two-level increase pursuant to § 2G2.2(b)(6) because the offense “involved the use of a computer”; and (5) a five-level increase pursuant to § 2G2.2(b)(7) because the offense involved 600 or more images. ¹ Pursuant to § 3E1.1, the PSR subtracted three levels for acceptance of responsibility, resulting in a total offense level of 39. U.S.S.G. § 2G2.2(b); PSR ¶¶ 30-42.

Dorvee submitted a sentencing memorandum challenging several of the enhancements and arguing for a non-Guidelines sentence on the ground that the statutory maximum punishment was substantively unreasonable under 18 U.S.C. § 3553(a). In support of his argument, Dorvee submitted reports from two therapists. Dr. Frank W. Isele, Ph.D., provided a lengthy psychological evaluation of Dorvee. Dr. Isele explained that Dorvee has been blind in one eye since birth, at times does not eat for days under severe stress, has experienced suicidal ideation, is so shy that he does not use a phone, and “never even so much as attended another child's birthday party when he was growing up” because he had (and, indeed, still has) no friends. App. 64. Dr. Isele attributed Dorvee's social isolation largely to anxiety stemming from his sexuality-Dorvee is homosexual. Dorvee has a hobby of compulsively collecting memorabilia (e.g., anything bearing the “John Deere” insignia), and Dr. Isele attributed Dorvee's cataloguing of pornographic images to this same tendency. Dr. Isele concluded that Dorvee “is suffering from a severe Major Depressive Disorder complicated by a profound Schizoid Personality Disorder,” App. 69, and is “socially isolated, anxious ... [and] frankly suicidal,” App. 66. As a result, Dr. Isele emphasized, Dorvee “is simply too passive, shy, socially anxious, retiring, introverted, submissive, unsure of himself and distrustful” to “push or develop a relationship with any other person, child or adult, unless the other person took the lead,” App. 68, and concluded that Dorvee is “not a predator” and “does not have the personality to actively initiate any dangerous actions,”

616 F.3d 178

App. 70. Dr. Isele expressed the view that Dorvee “would never have arranged to meet” the undercover officer had the officer “not persisted in having the meeting,” and therefore Dorvee is “unlikely to re-offend ... [if] he obtains the necessary treatment and counseling.” App. 71. John Engelbrecht, M.A., who provided Dorvee psychotherapy following his arrest, also diagnosed Dorvee with depression.

At sentencing, the district court directly addressed Dorvee's medical evidence. The court expressed sympathy for Dorvee's various mental issues, and agreed that Dorvee would never “go out and drag some little boy off the street and rape him and murder him.” App. 135-36. Nevertheless, the court concluded that Dorvee was a “pedophile” who, if “given the opportunity ... would have sexual relations ... with a younger boy, ages 6 to 15.” App. 136. The court did not think Dorvee would “initiate[ ]” such behavior, but was wary of “a situation where it came about,” which posed a “danger as far as the Court is concerned, because no one knows what's going to happen in the future.” App. 136. The court noted that its opinion was informed by the pictures Dorvee took of neighborhood children's feet, which might “erupt into something.” App. 138.

Once it concluded its analysis of the medical evidence, the court briefly discussed certain of the sentencing factors in 18 U.S.C. § 3553. First, the court concluded that Dorvee needed to be specifically deterred from re-offending, and that its sentence would also “send a message” to others inclined to distribute child pornography. App. 139; see 18 U.S.C. § 3553(a)(2)(B). Second, the court concluded that there was “a strong need to protect the public from the type of harm or hurt that the Court has described.” App. 139; see 18 U.S.C. § 3553(a)(2)(C). Third, the court concluded that “there's a very strong need for rehabilitation.” App. 140; see 18 U.S.C. § 3553(a)(2)(D).

Directly following its analysis of § 3553, the district court stated:

So the Court has found the total offense level to be a 39, the criminal history category to be a I, and the guideline imprisonment range is 262 to 327 months, but the statutory maximum is 240 months. So the Court is going to credit Justin for the time that he's already served in State court, which is reported to be six months and fourteen days.

App. 140. The court then announced its sentence of 233 months and 16 days, to run concurrently with the undischarged state term of imprisonment.

After explaining other components of the sentence, such as supervised release and restrictions on Dorvee's contact with minors, the district court revisited the issue of a non-Guidelines sentence. It stated:

The Court just wants to make the record a little more complete in the application for a

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