     11-2549-cr
     United States v. Cossey

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of April, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    AMALYA L. KEARSE,
10                    PETER W. HALL
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       United States,
15                Appellee,
16
17                    -v.-                                               11-2549-cr
18
19       Gary Cossey,
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR DEFENDANT-APPELLANT:              George E. Baird and Molly
24                                             Corbett, Assistant Federal
25                                             Public Defenders, for Lisa A.
26                                             Peebles, Acting Federal Public
27                                             Defender, Albany, NY.
28
29       FOR APPELLEE:                         Elizabeth S. Riker and Lisa M.
30                                             Fletcher, Assistant United
31                                             States Attorneys, for Richard S.
32                                             Hartunian, United States
33                                             Attorney for the Northern
34                                             District of New York, Syracuse,
35                                             NY.

                                                  1
1
2        Appeal from a judgment of the United States District

3    Court for the Northern District of New York (Mordue, then-

4    Chief Judge).

5

6        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

7    AND DECREED that the judgment of the district court is

8    AFFIRMED.

9

10       Defendant-Appellant Gary Cossey, who pleaded guilty to

11   possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B),

12   appeals the 78-month sentence imposed on re-sentencing after

13   remand, see United States v. Cossey, 632 F.3d 82 (2d Cir.

14   2011) (per curiam).     We assume the parties’ familiarity with

15   the underlying factual allegations, the procedural history

16   of the case, and the issues on appeal.

17       We generally review sentences for reasonableness under

18   the “deferential abuse-of-discretion standard.”    Gall v.

19   United States, 552 U.S. 38, 41 (2007); accord United States

20   v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

21   Reasonableness review has both a substantive and a

22   procedural dimension.    United States v. Whitley, 503 F.3d

23   74, 76 (2d Cir. 2007).




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1    [1] In reviewing for procedural reasonableness, this Court

2    considers such factors as whether the district court (1)

3    failed to calculate (or improperly calculated) the

4    Guidelines range, (2) treated the Guidelines as mandatory,

5    (3) failed to consider the Section 3553(a) factors, (4)

6    selected a sentence based on clearly erroneous factual

7    findings, or (5) failed to adequately explain the sentence

8    (including an explanation for any deviation from the

9    Guidelines range).   Gall, 552 U.S. at 51.

10       Cossey argues that the district court failed to

11   consider several 18 U.S.C. § 3553(a) factors, including his

12   personal history and his efforts at rehabilitation.       The

13   premise of that argument is that the district court must

14   have ignored particular factors or characteristics unless

15   they were mentioned during sentencing.      However, “we never

16   have required a District Court to make specific responses to

17   points argued by counsel in connection with sentencing.”

18   United States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010).

19   Nor do we “insist that the district court address every

20   argument the defendant has made or discuss every § 3553(a)

21   factor individually.”   United States v. Villafuerte, 502

22   F.3d 204, 210 (2d Cir. 2007).       In any event, the district

23   court stated on the record that it had considered (inter

24   alia) the submissions by counsel, which included the

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1    information Cossey claims was not considered.     The district

2    court also heard statements from Cossey and his family,

3    which covered these same issues.   The district court’s

4    consideration of mitigating circumstances is further evident

5    from its imposition of the minimum within-Guidelines

6    sentence.

7        Cossey criticizes the district court for not imposing a

8    below-Guidelines sentence based on the report of his

9    evaluation by Dr. Jacqueline Bashkoff.    A district court is

10   not required “to accept a psychologist’s conclusions at face

11   value” where, for example, a “psychologist’s report cannot

12   be squared with the court’s own judgment of the defendant’s

13   culpability and the danger he poses to society.”    See United

14   States v. DeSilva, 613 F.3d 352, 356-57 (2d Cir. 2010) (per

15   curiam).    Dr. Bashkoff’s conclusions were contradicted by

16   Cossey’s initial statement and admissions to law-enforcement

17   officers in 2006.

18       Cossey argues that the district court may have relied

19   on information in the Pre-Sentence Report that was the

20   subject of factual disputes that the district court failed

21   to resolve.   See Fed. R. Crim. P. 32(i)(3)(B).    But the

22   district court, in providing the reasons for imposing

23   Cossey’s sentence, did not mention, or give any other

24   indication that he relied upon, any of those disputed facts.

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1    Instead, it relied on the evidence uncovered from the

2    investigation of Cossey and Cossey’s admissions to the

3    police.

4          Finally, Cossey contends that his sentence is disparate

5    from the sentences imposed on others, similarly situated.

6    See 18 U.S.C. § 3553(a)(6).    Cossey has not shown that his

7    sentence is disparate from other “defendants with similar

8    records who have been found guilty of the similar conduct.”

9    Id.   Cossey’s long history of viewing and possessing these

10   materials coupled with his inability to permanently stop

11   (despite his best efforts) support his sentence.    See

12   Cossey, 632 F.3d at 88-89 (vacating previous sentence on

13   other grounds but observing that “[t]he record also contains

14   . . . evidence that would support the district court’s

15   decision that Cossey would re-offend based on an appropriate

16   consideration that he did in fact re-offend at least once”).

17   [2] Cossey also argues that his sentence is substantively

18   unreasonable.    In assessing the substantive reasonableness

19   of a sentence, this Court “take[s] into account the totality

20   of the circumstances, giving due deference to the sentencing

21   judge’s exercise of discretion, and bearing in mind the

22   institutional advantages of district courts.”   Cavera, 550

23   F.3d at 190.    Given the broad range of relevant factors,

24   “the duty of a reviewing court is not to identify the

                                    5
1    ‘right’ sentence but, giving due deference to the district

2    court’s exercise of judgment, to determine whether the

3    sentence imposed falls within the broad range that can be

4    considered reasonable under the totality of the

5    circumstances.”   United States v. Jones, 531 F.3d 163, 174

6    (2d Cir. 2008).   Thus, review for substantive

7    unreasonableness “provide[s] a backstop for those few cases

8    that, although procedurally correct, would nonetheless

9    damage the administration of justice because the sentence

10   imposed was shockingly high, shockingly low, or otherwise

11   unsupportable as a matter of law.”   United States v. Rigas,

12   583 F.3d 108, 123 (2d Cir. 2009).

13       The district court imposed the minimum within-

14   Guidelines sentence.   We do not assume that a Guidelines

15   sentence is reasonable; but “in the overwhelming majority of

16   cases, a Guidelines sentence will fall comfortably within

17   the broad range of sentences that would be reasonable in the

18   particular circumstances.”    United States v. Fernandez, 443

19   F.3d 19, 27 (2d Cir. 2006).    Here, in light of the “fact

20   [that Cossey] re-offend[ed] at least once,” Cossey, 632 F.3d

21   at 89, it cannot be said that the sentence fell outside the

22   range of reasonable sentences or was otherwise unsupportable

23   as a matter of law.



                                    6
1          Cossey argues nevertheless that his sentence runs afoul

2    of United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (as

3    amended).    In Dorvee, we held that the 240-month sentence of

4    a first-time offender who pleaded guilty to distribution of

5    child pornography was procedurally and substantively

6    unreasonable.   Id. at 188.   In so doing, we observed that

7    courts determining sentences for offenses involving child

8    pornography must be careful not to impose sentences that do

9    not conform with the Section 3553(a) factors.     Id. at 184-

10   88.   The instant case is easily distinguished.   Whereas in

11   Dorvee the defendant was sentenced to 240 months, the

12   statutory maximum for his offense, here Cossey was sentenced

13   to 78 months, which, though 18 months above the statutory

14   minimum, was 42 months below the statutory maximum for his

15   offense.    And, unlike the sentence imposed in Dorvee, which

16   was also subject to procedural error, the sentence imposed

17   in this case is procedurally sound, and, as explained above,

18   was reasonable under the totality of the circumstances.

19         We have considered all of Cossey’s additional arguments

20   and find them to be without merit.    Accordingly, the

21   judgment of the district court is AFFIRMED.

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25


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