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Federal Sentencing: Plain Error – Abuse of Discretion and Remanding To A Different Judge.


Decided January 28, 2011 Second Circuit Court of Appeals.

Appeal from a decision of the United States District Court for the Northern District of

New York (Sharpe, J.) sentencing defendant Gary Cossey (“Cossey”) to seventy-eight months’imprisonment. The sentence was vacated and remanded with instructions that the case be assigned to a different judge for resentencing.

Issue: Whether the Trial Court committed plain error when, in sentencing the Defendant, the Trial Court relied on an unsupported scientific theory that the defendant was genetically disposed to committing the crime of possessing child pornography.

Holding: Yes, the Trial Court committed plain error because it relied on a scientific theory, which was not supported by the record in any way, and the Trial Court demonstrated that it was not fair and impartial and the case was therefore remanded to a different judge.

Facts: Gary Cossey (“Cossey”) was charged with two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Cossey pleaded guilty to Count One for possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), pursuant to a Plea Agreement entered into on February 13, 2009. The Plea Agreement reserved his right to appeal any sentence greater than fifty-seven months. On December 3, 2009, the district court sentenced Cossey to seventy-eight months’ imprisonment, a life term of supervised release, and a mandatory assessment of one hundred dollars.

On appeal, Cossey asserts the sentence imposed by the district court was procedurally and substantively unreasonable. He alleges that the sentence imposed by the district court was unreasonable because the court failed to properly consider the factors under 18 U.S.C. § 3553(a), disregarded mitigating facts, relied on clearly erroneous facts, depended on suppositions unsupported by the record, imposed a sentence that was greater than necessary under the totality of the circumstances, and mistakenly presumed that a within-Guidelines sentence was reasonable.

Cossey’s principal allegation on appeal, which was not presented at sentencing, is that the court relied on an idea that he would re-offend, based on a notion that Cossey is genetically predisposed to view child pornography. Accordingly, Cossey’s allegations concerning the court’s improper consideration of his genetic predisposition to re-offend, and his objections generally to the court’s reliance on his potential to re-offend, should be reviewed for plain error. See Villafuerte, 502 F.3d at 208-09 (plain error review appropriate where objection or error was not raised at sentencing).

Discussion and Legal Analysis :

The standard of review for sentencing is one of “reasonableness.” United States v. Booker, 543 U.S. 220, 260-62 (2005). Review to determine whether a sentence is “reasonable” involves both “an examination of the length of the sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). Reasonableness review is akin to a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 52 (2007).

To impose a procedurally reasonable sentence, a district court must “(1) normally determine the applicable Guidelines range, (2) consider the Guidelines along with the other factors under § 3553(a), and (3) determine whether to impose a Guidelines sentence or a nonGuidelines sentence.” United States v. Villafuerte, 502 F.3d 204, 206-07 (2d Cir. 2007); accord Gall, 552 U.S. at 53. Procedural error occurs in situations where, for instance, the district court miscalculates the Guidelines; treats them as mandatory; does not adequately explain the sentence imposed; does not properly consider the § 3553(a) factors; bases its sentence on clearly erroneous facts; or deviates from the Guidelines without explanation. See Gall, 552 U.S. at 51.

If the district court is found to have committed no procedural errors, “the appellate court should then consider the substantive reasonableness of the sentence imposed,” which includes looking to the “totality of the circumstances.”

Plain Error Rule :

To establish plain error, appellant must show there was (1) error (2) that is plain and (3) that affects substantial rights. See id. at 209; accord United States v. Marcus, 130 S.Ct. 2159, 2164 (2010). Moreover, “the error must be clear or obvious, at the time of appellate review.” Villafuerte, 502 F.3d at 209 (citations omitted). Finally, we may exercise our discretion to notice the forfeited error only if the error “‘seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.'” United States v. Doe, 297 F.3d 76, 82 (2d Cir. 2002) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)).

It is undisputed that it would be impermissible for the court to base its decision of recidivism on its unsupported theory of genetics. For Cossey’s challenge to survive, there must be error and it must be plain. Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted.

The court’s belief that Cossey was genetically incapable of controlling his urges affected the court’s decision to sentence him to imprisonment, to impose a prison term that is lengthy, and to order him to submit to supervised release for life, all of which affect Cossey’s substantial rights. Once plain error affecting substantial rights has been established, an appellate court may exercise its discretion to correct it if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See Doe, 297 F.3d at 82. It is uncontroversial to conclude that a sentencing decision that relies on factual findings that were unsupported in the record, and thus could not possibly have been established by a preponderance of the evidence, seriously affects the fairness, integrity, and public reputation of judicial proceedings.

3553(a) Factors :

There is no single formulation a district court must follow in deciding upon a sentence, but a judge must generally consider the Guidelines, along with “all of the other factors listed in section 3553(a).” United States v. Crosby, 397 F.3d 103, 113 (2d Cir. 2005), abrogated on other grounds by United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005).

While the district court did not specifically state it was considering the § 3553(a) factors, there is no requirement that it must, and the Government is correct in asserting the court’s discussions touched upon the history of the defendant, the circumstances of the offense, and defendant’s propensity to re-offend.

Trial Court’s Rationale and Appellate Court’s Analysis :

The court continued, informing Cossey it needed “to share a view that’s a little different than what you’re hearing from your psychiatrists and that’s because I’m not sure there’s any answer for what I see here beyond what I’m about to tell ya.”

The court predicted that some fifty years from now Cossey’s offense conduct would likely be discovered to be caused by “a gene you were born with. And it’s not a gene you can get rid of.”

The court expressed its belief that although Cossey was in therapy, it “can only lead, in my view, to a sincere effort on your part to control, but you can’t get rid of it. You are what you’re born with. And that’s the only explanation for what I see here.”

While a defendant’s propensity to re-offend is a proper consideration under §3553(a)(2)(C), the court below relied on this single factor, which it linked to its unsupported belief that Cossey was prevented from controlling his behavior due to a genetic inability to do so. See United States v. Dorvee, 616 F.3d 174, 183 (2d Cir. 2010) (explaining “we are troubled by the district court’s apparent assumption that [defendant] was likely to actually sexually assault a child, a view unsupported by the record evidence” and that, “in the face of record evidence to the contrary, caused the district court to place unreasonable weight on this sentencing factor”).

The sentencing hearing focused nearly entirely on the court’s belief that Cossey could not but return to viewing child pornography, because of an as-ofyet undiscovered gene: “I’m not gonna be surprised that it is not what happened to you as a child, but I’m not going to be surprised instead but that it is a gene you were born with. And it’s not . . .a gene you can get rid of.”

The record supports a finding that plain error occurred insofar as the court decided to sentence Cossey based on its conclusion that he would re-offend due to its prediction as to the state of the science of genetics “fifty years from now.” The record also contains, however, evidence that would support the district court’s decision that Cossey would re-offend based on an appropriate consideration that he did in fact re-offend at least once.

We find it necessary to remand the case to a different judge. As a general rule, “resentencing before a different judge is required only in the rare instance in which the judge’s fairness or the appearance of the judge’s fairness is seriously in doubt.” United States v. Bradley, 812 F.2d 774, 782 n.9 (2d Cir. 1987) (citing United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (per curiam) (en banc)). This is one such instance. The extent of the discussion concerning Cossey’s genetic predisposition to re-offend has raised serious concerns over the objectivity of the judge in resentencing Cossey. Accordingly, we remand the case to a different judge.