12-2989-cr
United States v. Rafferty


                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th
day of June, two thousand thirteen.

PRESENT:
            GUIDO CALABRESI,
            JOSÉ A. CABRANES,
            ROBERT D. SACK,
                         Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                     No. 12-2989-cr

RONALD RAFFERTY,

                     Defendant-Appellant.

_____________________________________

FOR DEFENDANT-APPELLANT:                             Gene V. Primomo, Molly Corbett, for Lisa A.
                                                     Peebles, Federal Public Defender, Office of
                                                     the Federal Public Defender for the Northern
                                                     District of New York, Albany, NY.

FOR APPELLEE:                                        Brenda K. Sannes, Elizabeth S. Riker, Richard
                                                     D. Belliss, for Richard S. Hartunian, United
                                                     States Attorney, United States Attorney’s
                                                        Office for the Northern District of New
                                                        York, Syracuse, NY.

        Appeal from a judgment of conviction of the United States District Court for the Northern
District of New York (Gary L. Sharpe, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s July 24, 2012 judgment is
AFFIRMED.

         On November 3, 2011, defendant-appellant Ronald Rafferty was charged with four counts
of producing child pornography (Counts 1 to 4), in violation of 18 U.S.C. § 2251(a), and one count
of possessing child pornography (Count 5), in violation of 18 U.S.C. § 2252A(a)(5)(B). The
underlying conduct involved, inter alia, Rafferty videotaping a nine-year-old girl engaging in sexually
explicit conduct, sometimes with an adult woman who suffers from a mental defect.

         On November 30, 2011, after a three-day trial, a jury convicted Rafferty on all five counts.
The Probation Office calculated Rafferty’s total offense level to be 48, but because the highest
offense level under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) is 43,
Rafferty’s total offense level was 43 for sentencing purposes. This total offense level included the
following enhancements: (1) a four-level enhancement because the minor involved was less than
twelve years old (U.S.S.G. § 2G2.1(b)(1)), (2) a two-level enhancement because the offense involved
the commission of a sexual act or sexual contact (U.S.S.G. § 2G2.1(b)(2)(A)), (3) a four-level
enhancement because the videos portrayed sadistic or masochistic conduct (U.S.S.G. § 2G2.1(b)(4)),
(4) a two-level enhancement because the minor was related to Rafferty (U.S.S.G § 2G2.1(b)(5)), and
(5) a four-level enhancement because Rafferty was convicted of four separate counts of producing
child pornography (U.S.S.G. § 3D1.4). Based on a total offense level of 43 and Rafferty’s criminal
history, his Guidelines sentence was 1,560 months.

      On July 24, 2012, the District Court sentenced Rafferty to a total term of imprisonment of
720 months. We assume the parties’ familiarity with the facts and procedural history of this case.

                                            DISCUSSION

       On appeal, Rafferty contends that the District Court erred by (1) treating his four child
pornography production counts as four distinct “groups” of conduct, instead of grouping them
pursuant to U.S.S.G. § 3D1.2; and (2) finding that the conduct in the videos portrayed sadistic or
masochistic conduct and warranted a four-level sentencing enhancement pursuant to U.S.S.G.
§ 2G2.1(b)(4). He also argues that his 720-month sentence was substantively unreasonable.


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                                                             A.

        “We review [a] sentencing court’s interpretation of the Sentencing Guidelines de novo, but
review its related findings of fact only for clear error.” United States v. Potes-Castillo, 638 F.3d 106, 108
(2d Cir. 2011); see also United States v. Gotti, 459 F.3d 296, 349 (2d Cir. 2006).

          We review criminal sentences for “unreasonableness,” which “amounts to review for abuse
of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc) (quotation marks
omitted); see also In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (noting that a district court abuses its
discretion if it “base[s] its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or render[s] a decision that cannot be located within the range of
permissible decisions” (internal citations and quotation marks omitted)). “A district court errs
substantively if its sentence ‘cannot be located within the range of permissible decisions.’” United
States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (quoting Cavera, 550 F.3d at 189). “In the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range
of sentences that would be reasonable in the particular circumstances.” United States v. Perez-Frias,
636 F.3d 39, 43 (2d Cir. 2011) (internal quotation marks and bracket omitted).

                                                             B.

        Generally speaking, Section 3D1.2 provides that “[a]ll counts involving substantially the
same harm shall be grouped together into a single Group.”1 U.S.S.G. § 3D1.2. Rafferty argues that
his four child pornography production counts should have been grouped pursuant to Section
3D1.2(b),2 which explains that “counts involv[e] substantially the same harm” when they “involve
same victim and two or more acts or transactions connected by a common criminal objective or
constituting part of a common scheme or plan.”3 Id. § 3D1.2(b).

        After reviewing de novo the District Court’s legal determination not to “group” the four child
pornography production counts, we conclude that the District Court did not err in this regard.
Although the four videos at issue portrayed sexual conduct involving the same victim, there is no
dispute that they were filmed on different days and occurred on “separate and distinct occasion[s]”
1 Rafferty’s production of child pornography counts are specifically excluded from being grouped under Subsection D
of U.S.S.G § 3D1.2.

2 The Pre-Sentence Report “grouped” Rafferty’s offenses into four groups for sentencing purposes―one for each of the
four production counts. The child pornography possession count (Count 5) was grouped with one of the production of
child pornography counts (Count 1).

3 Although Rafferty’s brief refers to Subsection C of U.S.S.G § 3D1.2 at one point, see Rafferty’s Br. 21, this reference
appears to be erroneous, considering that the rest of his brief focuses solely on Subsection B. In any event, we agree
with the government that Subsection C is inapplicable because the production counts at issue here do not “embod[y]
conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another
of the counts.” U.S.S.G § 3D1.2(c).
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from one another. App’x 14-17; see id. at 157 (“Each act, each video was a separate incident
of . . . [the] production of child pornography and child abuse, and each act and each production
constitutes a separate count of conviction which supports the grouping analysis Probation has
conducted . . . .”). In these circumstances, we conclude that Rafferty’s argument is foreclosed by our
decision in United States v. Vasquez, 389 F.3d 65 (2d Cir. 2004), in which we held that “two episodes
of sexual misconduct that society has legitimately criminalized occurring with the same person on
different days are not ‘substantially the same harm’ for purposes of section 3D1.2.” Id. at 77; see
U.S.S.G. § 3D1.2 cmt. n.4 (noting that U.S.S.G. § 3D1.2(b) “does not authorize the grouping of
offenses that cannot be considered to represent essentially one composite harm (e.g., robbery of the
same victim on different occasions involves multiple, separate instances of fear and risk of harm, not
one composite harm)”); see also United States v. Wise, 447 F.3d 440, 446 (5th Cir. 2006) (“The district
court here grouped the [child pornography] production counts that took place on the same day but
refused to group those occurring on different days on the theory that each time was a separate harm
to Doe. . . . Each photograph caused Doe to engage in a separate act of sexually explicit conduct,
and the district court did not err in concluding that Doe suffered a separate harm with each occasion
of production.”).

         Because we conclude that the District Court did not err in refusing to “group” the child
pornography production counts, we need not consider Rafferty’s argument that the District Court
clearly erred by imposing a four-level sentencing enhancement for sadomasochistic conduct because
any such error would be harmless. Indeed, because Rafferty’s total offense level of 48 was five
levels higher than the highest level on the sentencing chart, even if the District Court erred by
imposing the four-level sadomasochistic conduct enhancement, his total offense level would remain
43 for sentencing purposes. See United States v. Broxmeyer, 699 F.3d 265, 288 (2d Cir. 2012).

                                                  C.

         Finally, Rafferty urges us to conclude that his below-Guidelines sentence is substantively
unreasonable based largely on his general criticism that the Guidelines applicable to child
pornography offenses provide for excessive penalties. Although we have expressed concern
regarding the substantive reasonableness of sentences involving the distribution of child pornography,
see United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), we have “never held that a district court is
required to reject an applicable Guideline,” United States v. Salim, 690 F.3d 115, 126 (2d Cir. 2012).
Rafferty’s production of child pornography, moreover, is distinguishable from the conduct in Dorvee, in
that Rafferty caused a nine-year-old girl and an adult woman, who suffers from a mental defect, to
engage in sexually explicit conduct with one another.

        Based on our review of the record, we conclude that the District Court properly considered
the 18 U.S.C. § 3553(a) factors, see App’x 166-70, and that Rafferty’s below-Guidelines sentence falls
within the “range of permissible decisions” available to the District Court, especially considering the
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seriousness of his conduct, his criminal history, his refusal to accept responsibility for his actions,
and the need for deterrence, Cavera, 550 F.3d at 189. Accordingly, Rafferty’s sentence was not
substantively unreasonable.

                                           CONCLUSION

        We have considered all of Rafferty’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the District Court’s July 24, 2012 judgment.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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