          United States Court of Appeals
                     For the First Circuit


No. 13-2023

                         UNITED STATES,

                            Appellee,

                               v.

                     PATRICK GAFFNEY-KESSELL

                      Defendant, Appellant.




          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]




                             Before

                      Lynch, Chief Judge,
                       Stahl and Kayatta,
                         Circuit Judges.



     Charles Allan Hope, with whom Cunha & Holcomb, P.C. were on
brief, for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                        November 18, 2014
               STAHL,     Circuit        Judge.      Defendant-Appellant         Patrick

Gaffney-Kessell pleaded guilty to travel with intent to engage in

criminal sexual activity, in violation of 18 U.S.C. § 2423(b).

Although he lodged no objection to the presentence report or during

the sentencing hearing, he now appeals his sentence, challenging

the application of an enhancement for having engaged in "a pattern

of activity involving prohibited sexual conduct," U.S. Sentencing

Guidelines         Manual    §        4B1.5(b)(1),       as    well   as   the   overall

reasonableness of his sentence.                  We affirm.

                                 I.    Facts & Background

               As this appeal follows the entry of a guilty plea, we

draw the facts from the uncontested presentence report (PSR) and

the transcript of the sentencing hearing. United States v. Nguyen,

618 F.3d 72, 73 (1st Cir. 2010).

               In October 2010, Gaffney-Kessell, then twenty-six years

old,       began   communicating          with    Jane    Doe,1    then    thirteen,    on

Facebook.          Over   the     ensuing    months,          Gaffney-Kessell    and   Doe

exchanged numerous e-mails and text messages, spoke on the phone,

and engaged in instant messaging. Many of these conversations were

sexual in nature.           Although Doe had advised Gaffney-Kessell of her

age, he nonetheless sent her lewd photographs of himself, including

pictures of him masturbating, and described sexual activities he

wished to engage in with her.


       1
           A pseudonym.

                                             -2-
            On   January        12,   2011,      Gaffney-Kessell    traveled

approximately ten hours from Maine to Pennsylvania, where Doe

lived.     He rented a motel room near Doe's home and spent four or

five days there.         When Doe refused to meet him at the motel,

Gaffney-Kessell drove to her home and lingered in front of the

house. Frightened, Doe told her parents about Gaffney-Kessell and,

from the record before us, it appears that she asked him to leave.

            In some manner again unclear from the record, the police

became involved in the matter.           Gaffney-Kessell admitted to police

during an interview that his motive for the trip to Pennsylvania

was to have sex with Doe, and that he would have done so had she

agreed to meet him at the motel.           Further investigation uncovered

evidence that Gaffney-Kessell had engaged in online and/or sexual

relationships     with     at    least     two   other   underage   females.

Allegations that he had had sexual intercourse with one of those

females, then fifteen years old, on at least two occasions formed

the basis of a Maine state charge against him for sexual abuse of

a minor.

            A federal information subsequently was filed in this

case, charging Gaffney-Kessell with travel with intent to engage in

criminal sexual activity, in violation of 18 U.S.C. § 2423(b).

Represented by counsel, he waived indictment and pleaded guilty to




                                      -3-
the information.2    He lodged no written objection to the sentence

recommendations contained in the ensuing PSR, discussed below.3

            At the sentencing hearing, Gaffney-Kessell reiterated his

guilt and confirmed that the version of events described in the PSR

was accurate.    Although defense counsel made a general plea for

leniency, he did not recommend a specific sentence, as Gaffney-

Kessell had instructed him not to do so.    Gaffney-Kessell told the

court that he "wish[ed] to make no request as far as [his]

sentencing [was] concerned," and represented, both personally and

through counsel, that he believed that any sentence imposed would

be just and appropriate.

            In sentencing, the district court took note of statements

from Gaffney-Kessell's family members and therapist, which attested

to his own history of sexual abuse as a child.    The court observed

that other relevant factors included the age discrepancy between

Gaffney-Kessell and Doe; his use of the Internet to send pictures

to Doe, which "is associated with efforts on behalf of an older

male to groom a young victim"; his history of sexual conduct with




     2
         There was no plea agreement.
     3
       The record before us reflects that defense counsel raised
one objection to the presentence report. Although the matter was
resolved in due course, the nature of the objection is unclear.
However, Gaffney-Kessell does not contest the government's
characterization of it as "an unrelated objection . . . that was
cured by revisions."

                                 -4-
underage girls; and the fact that he "crossed the line . . . from

fantasy to reality."

                In   accordance    with   the    PSR's   recommendations,    the

district court calculated Gaffney-Kessell's base offense level at

24, per section 2G1.3(a)(4) of the U.S. Sentencing Guidelines

Manual. The court then applied a two-level enhancement for his use

of   a       computer   in   the   commission    of   the    offense,   U.S.S.G.

§ 2G1.3(b)(3)(B), and a five-level enhancement for his "pattern of

activity        involving     prohibited        sexual      conduct,"   U.S.S.G.

§ 4B1.5(b)(1), before decreasing his offense level by three for his

acceptance of responsibility, U.S.S.G. § 3E1.1.                  The five-level

enhancement was based on Gaffney-Kessell's alleged sexual contact

with the fifteen-year-old girl, which was then the subject of the

pending Maine state charge.4,5              The court ultimately sentenced

Gaffney-Kessell to seventy-eight months in prison – at the lowest

end of the guidelines range – plus five years of supervised




         4
       The application notes to the sentencing guidelines define
"a pattern of activity involving prohibited sexual conduct" as
comprising at least two separate instances of prohibited sexual
conduct with a minor.     U.S.S.G. § 4B1.5 cmt. n.4(B)(I).      The
application notes explain further that "[a]n occasion of prohibited
sexual conduct may be considered . . . without regard to whether
the occasion (I) occurred during the course of the instant offense;
or (II) resulted in a conviction for the conduct that occurred on
that occasion." Id. cmt. n.4(B)(ii).
         5
       Gaffney-Kessell pleaded guilty to the Maine charge shortly
after sentencing in this case.

                                          -5-
release.    Gaffney-Kessell did not object at the sentencing hearing

but nonetheless appeals from the imposition of the sentence.

                              II.    Analysis

            Gaffney-Kessell argues on appeal that the five-level

sentence enhancement based on "a pattern of activity involving

prohibited sexual conduct" was improper, and that the district

court abused its discretion in failing to impose a sentence below

the guidelines range. Before turning to the merits, we address the

government's contention that these claims have been waived.

            The government asserts that Gaffney-Kessell affirmatively

waived,    rather   than   merely   forfeited,   his    objections   to   the

sentence imposed. The government grounds this argument in Gaffney-

Kessell's failure to file a written objection to the recommended

sentence in the PSR, his failure to object either to the PSR's

findings or the district court's guidelines computations at the

sentencing hearing, and both his and defense counsel's avowal that

whatever sentence imposed would be fair and appropriate.

            Whether an objection has been waived or simply forfeited

affects the scope of our appellate review.             A litigant effects a

waiver by intentionally relinquishing or abandoning a known right.

United States v. Olano, 507 U.S. 725, 733 (1993).            Doing so means

that that issue "ordinarily cannot be resurrected on appeal."

United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).             By

contrast, forfeiture refers not to affirmative conduct but rather


                                     -6-
to a "failure to make the timely assertion of a right."          Olano, 507

U.S. at 733; Rodriguez, 311 F.3d at 437.       A forfeited issue still

may be reviewed on appeal, albeit for plain error. Olano, 507 U.S.

at 733–34; Rodriguez, 311 F.3d at 437.

          The conduct of both Gaffney-Kessell and his attorney in

this case "might well constitute a waiver."            United States v.

Martinez-Vargas, 321 F.3d 245, 249 (1st Cir. 2003).        Beyond simply

not objecting to the individual sentence enhancements or to the

overall sentence imposed, defense counsel affirmatively declined to

make a sentence recommendation.        Counsel noted that his client

"ha[d]   specifically   instructed     [him]   not    to   ask    for     any

recommendation,"   believing   that    "whatever     sentence    the    court

impose[d would] be just and appropriate."      Gaffney-Kessell himself

made a statement to the same effect.       These actions ring not of

"oversight, inadvertence, or neglect in asserting a potential

right," United States v. Eisom, 585 F.3d 552, 556 (1st Cir. 2009),

but rather of a deliberate course of conduct.

          However, it is not necessary to resolve the question of

waiver definitively because it is evident that Gaffney-Kessell's

claims do not rise to the level of plain error in any event.             Cf.

Martinez-Vargas, 321 F.3d at 249–50 (assuming without deciding that

forfeiture rather than waiver occurred and finding no plain error).

Gaffney-Kessell first attacks the five-level sentence enhancement

imposed, per U.S.S.G. § 4B1.5, after the court considered the


                                 -7-
pending state charge for a separate offense and found that he had

engaged in a pattern of activity involving prohibited sexual

conduct.    He argues that the Sentencing Reform Act specifically

directs    the   Sentencing   Commission   to   promulgate   guidelines

responsive to the nature of "the offense," 28 U.S.C. § 994(c)

(emphasis added), and that the guidelines violate this mandate

insofar as they authorize sentencing courts to consider "relevant

conduct," including other uncharged, dismissed, or pending offenses

beyond the offense of conviction.6

           Although Gaffney-Kessell's brief catalogs a plethora of

dissenting opinions and academic articles criticizing the "relevant

conduct" provision of the guidelines generally, it fails either to

acknowledge or account for controlling precedent, which dictates

the result of his particular challenge to U.S.S.G. § 4B1.5(b). The

Supreme Court has held that the guidelines' grant of discretion to

sentencing judges to consider a defendant's other relevant conduct,

including uncharged or unconvicted conduct, is consistent with both


     6
       Gaffney-Kessell challenges the "relevant conduct" guideline
broadly, in apparent reference to section 1B1.3 of the U.S.
Sentencing Guidelines Manual, titled "Relevant Conduct (Factors
that Determine the Guideline Range)." However, section 1B1.3(b)
expressly notes that "factors in Chapters Four and Five that
establish the guideline range shall be determined on the basis of
the conduct and information specified in the respective
guidelines." Thus, the specific guideline relevant to Gaffney-
Kessell's argument is section 4B1.5, which governs repeat and
dangerous sex offenders against minors. Application note 4(b)(ii)
of that guideline makes clear that other instances of prohibited
sexual conduct can be considered in sentencing, regardless of
whether such conduct resulted in a conviction.

                                  -8-
the Sentencing Reform Act and principles of due process, provided

that the underlying facts are found by a preponderance of the

evidence. United States v. Watts, 519 U.S. 148, 153–56 (1997). It

follows that there is no comparable statutory or constitutional

impediment    to    considering   a   specific    category       of    "relevant

conduct," i.e., instances of prohibited sexual conduct, in applying

U.S.S.G. § 4B1.5(b) to a defendant convicted of a "covered sex

crime."   Indeed, we have affirmed the consideration of unconvicted

sexual conduct in the context of a guideline virtually identical to

the one at issue here, U.S.S.G. § 2G2.2(b)(5), which authorizes a

five-level enhancement "[i]f the defendant engaged in a pattern of

activity involving the sexual abuse or exploitation of a minor."

United States v. Woodward, 277 F.3d 87, 91 (1st Cir. 2002); see

United States v. Clark, 685 F.3d 72, 79 (1st Cir. 2012).                   Other

circuits,    too,   have   affirmed   the   application     of    the    precise

guideline at issue here, based on evidence of prior instances of

unconvicted     sexual     conduct.     See,    e.g.,   United        States   v.

Rothenberg, 610 F.3d 621, 625 n.5, 627 (11th Cir. 2010); United

States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005).

             Moreover, to the extent that Gaffney-Kessell contends

that   guideline    4B1.5(b)    impermissibly    broadens    the       statutory

reference to "the offense," 28 U.S.C. § 994(c), beyond the offense

of conviction, his argument is undercut by the plain language of

18 U.S.C. § 3661.          That provision clearly states that "[n]o


                                      -9-
limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence."             Thus, there

was no error, let alone plain error, in the district court's

application of the five-level enhancement, based on its finding

that the offense of conviction, along with the conduct underlying

the pending state charge, constituted a pattern of prohibited

sexual conduct.

            Gaffney-Kessell also challenges the overall sentence

imposed as "greater than necessary" for the purpose of punishment.

See 18 U.S.C. § 3553(a).     Particularly in light of his own history

of sexual abuse and the progress he had made in therapy by the time

of   sentencing,   he   argues    that   the   district   court   improperly

declined to impose a sentence below the guidelines range.                This

claim, too, falls short of the plain-error hurdle, as there was "a

plausible sentencing rationale and a defensible result," rendering

the sentence substantively reasonable.           United States v. Ayala-

Vazquez, 751 F.3d 1, 32 (1st Cir. 2014) (internal quotation marks

omitted).   The district court noted that it had considered each of

the factors set forth in § 3553(a); it properly weighed evidence of

Gaffney-Kessell's background, including evidence of his "horrible,

traumatic   youth,"     against   the    circumstances    of   the   offense,

ultimately choosing a sentence at the lowest end of the guidelines


                                    -10-
range.      Gaffney-Kessell   has    not    "adduce[d]    fairly   powerful

mitigating reasons [that] persuade us that the district court was

unreasonable," as he must in challenging a sentence within a

properly calculated guidelines range.         United States v. Clogston,

662 F.3d 588, 592–93 (1st Cir. 2011) (internal quotation marks

omitted).

                           III.     Conclusion

            As   Gaffney-Kessell    has    demonstrated   no   plain   error

justifying resentencing, we AFFIRM his sentence.




                                    -11-
